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  • Unreported Judgment

Balnaves v Smith

 

[2010] QSC 39

Reported at [2011] 2 Qd R 17

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

DELIVERED ON:

23 February 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

23–27 November 2009

JUDGE:

Applegarth J

ORDER:

Judgment for the plaintiff in each proceeding for damages to be assessed.  Draft minutes of order to be submitted.

CATCHWORDS:

SHIPPING AND NAVIGATION – COLLISIONS AND LIMITATION OF LIABILITY GENERALLY – NEGLIGENCE – CONTRIBUTION AND APPORTIONMENT UNDER STATUTE - where two boats collided whilst navigating a narrow channel at a river bend – determination of liability in actions for damages for personal injuries

LIMITATION OF ACTIONS – GENERAL MARITIME CLAIM FOR PERSONAL INJURIES – Whether the limitation period in the Navigation Act 1912 (Cth) s 396(1) applies – discretion to extend time

ACTS CITED

Judicature Act 1876 (Qld), s 5(9)
Law Reform Act 1995 (Qld), ss 6 and 10
Law Reform (Tortfeasors Contribution, Contributory Negligence, and Division of Chattels) Act 1952 (Qld)

Limitation of Actions Act 1974 (Qld), s 11
Navigation Act 1912 (Cth), ss 2, 258, 259 and 396
Personal Injuries Proceedings Act 2002 (Qld)
Transport Operations (Marine Safety) Act 1994 (Qld), ss 11 and s 43(3)
Supreme Court Act 1995, s 247

CASES

The "Albany" and "Marie Josaine" [1983] 2 Lloyd’s Rep 195, applied

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited
The Bywell Castle (1879) 4 PD 219, cited Fox v Percy (2003) 214 CLR 118, cited
Manning v McPhillip (1995) 22 MVR 423, cited
McKinnon v Huxley [2003] NSWSC 1221, applied
Pennington v Norris (1956) 96 CLR 10, cited
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529, cited
South Sydney Council v Walsh (2003) 38 MVR 437, cited
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25, cited

COUNSEL:

R J Douglas SC and S J Given for the plaintiff in 1391 of 2005 and the  third defendant in 6546 of 2005
R J Lynch for the plaintiff in 6546 of 2005
A W Street SC and CS Harding for the first and second defendants in 1391 of 2005 and 6546 of 2005

SOLICITORS:

MacGillivrays Solicitors for the plaintiff in 1391 of 2005 and the third defendant in 6546 of 2005
Robert Bax and Associates for the plaintiff in 6546 of 2005
Cantwell Lawyers for the first and second defendants in 1391 of 2005 and 6546 of 2005 

[1] On 23 February 2002 Mr Balnaves and his passenger, Mr Malone, were travelling upstream on the north arm of the Coomera River in Mr Balnaves’ 6.1 metre Bayliner Capri Runabout.  At the same time, Mr Smith, an employee of Coomera Houseboat Holidays Pty Ltd, was travelling downstream as the sole occupant of a 5.4 metre Haines Hunter speedboat.  At around 2.40 pm the boats collided at a bend in the river.  The three individuals were badly injured.

[2] In proceeding BS 1391 of 2005 Mr Balnaves sues Mr Smith and Mr Smith’s employer.  In proceeding BS 6546 of 2005 Mr Malone sues Mr Smith, Mr Smith’s employer and Mr Balnaves.  Neither action was commenced within the two year time limit contained in s 396 of the Navigation Act 1912 (Cth), and issues arise about the application of that section and the exercise of discretion to extend time.  The essential issues in each proceeding, which were heard together, are the same.  The critical factual issues are where and why the collision occurred.  There are starkly different accounts of on which side of the river the collision occurred and the course taken by each vessel prior to the collision.  The resolution of those factual issues will determine questions of liability in each proceeding.

Background to the issues in dispute

[3] The north arm of the Coomera River meanders from Sanctuary Cove to the Broadwater.  A few kilometres downstream from Sanctuary Cove the north arm bends in a clockwise direction around Coomera Island.  The navigable channel at low tide at this bend is close to the bank opposite Coomera Island.  The bank which is closest to the navigable channel was referred to in evidence on occasions as the northern bank.  The opposite bank, on the Coomera Island side, is lined by mangroves.  Views around the bend from vessels travelling in either direction are restricted to some extent by these mangroves.

[4] At low tide the navigable channel may be as narrow as 20 metres.  At low tide, sandbanks and mudbanks are exposed on both sides of the river.  The vicinity of the collision is depicted in numerous photographs, including aerial photographs, and on charts that became exhibits.  The aerial photograph that became exhibit 35 provides a reasonable view of the vicinity.  A number of the photographs that became exhibits were taken when the tide was higher than the tide at the time of the collision.  However, they helpfully depict the area in question and the general location of mudbanks on the Coomera Island side of the river and the navigable channel.  A hydrographic survey of the north arm of the Coomera River[1] gives a more precise indication of the navigable channel at the bend and in other parts of the north arm.  Time tides for the Gold Coast Seaway in February 2002 in conjunction with other evidence permit an assessment to be made of the approximate depth of water in the vicinity of the collision at the time of the collision.  Television news reports of the collision[2] record the scene some time after the collision, when the tide was higher than at the time of the collision.  These news reports and the photographs[3] depict the muddy bank on the northern side of the bendPhotographs taken on board vessels on the river[4] and a DVD recording of manoeuvres undertaken by police in the course of their investigation do not purport to depict the level of the river as it was at the time of the collision.  However, they give a good impression of the expanse of water and the width of the river in the vicinity of the bend.  The expanse of water, however, cannot be equated with the navigable channel which, particularly at low tide, is far narrower than the river itself.

[5] Despite the relatively narrow navigable channel, particularly at low tide, the bend and the restricted visibility due to mangroves, the speed limit for vessels on this bend is 40 knots.[5]  After the collision police investigators and officers of Maritime Safety Queensland apparently recommended that immediate consideration be given to reducing the speed limit in that section of the river from 40 knots to 6 knots for all vessels.[6]  However, in about April 2003 Queensland Transport merely placed warning signs cautioning masters to navigate with care through the bends, apparently because it was considered that a 6 knot speed limit would be “extremely unpopular with those who transit the river during the ‘quiet’ months”.[7]  The speed limit of 40 knots at the time of the collision does not determine the speed at which either of the vessels that collided should have safely navigated the bend in the circumstances that prevailed immediately before the collision.[8]

[6] Evidence was given by an independent witness, Mr Hipkins, who was very familiar with the north arm of the Coomera River, having navigated it probably two or three times a month between 1990 and 2003.  He also is a marine surveyor, and is familiar with the types of vessels involved in the collision.  He expressed the opinion that the Haines Hunter could travel in the “40-knot section” of the north arm at 30 knots safely with other vessels coming in the opposite direction “provided they both stayed on the correct side of the channel ... and kept a lookout”.[9]

[7] Mr Smith gave evidence, which was not challenged, that at the time of the collision there was “pretty close to about 20 metres of channel” which he described as “still reasonable water”.[10]

[8] Prior to Saturday, 23 February 2002, Mr Smith had worked with Coomera Houseboats for about 26 years.  The business was based on the Coomera River at the Gold Coast City Marina, upstream from Sanctuary Cove.  The houseboats hired from the business would ply the river to different locations and normally on a Saturday and a Wednesday the business would conduct a service run to houseboats to supply goods or to attend to any problems.  Mr Smith said that prior to 23 February 2002 he had been up and down the north arm of the Coomera River “thousands of times”.  He was familiar with the bend in the river where the collision occurred and its navigable channels.  The Haines Hunter boat that he used for service runs was a speedboat, which was operated from a centre console. 

[9] On 23 February 2002 Mr Smith was to undertake a service run.  However, he had to attend to a winch problem, which meant that he was running about two hours late when he left for the service run.[11]  He passed through the 6 knot speed limit area around Sanctuary Cove.  After that he increased speed and the Haines Hunter was on a “nice plane”.  Mr Smith estimated its speed to be “about 30, maybe a little bit more, but definitely within the 30 knot area.”[12]

[10] At about the same time as the Haines Hunter was entering the bend at which the collision occurred, the Bayliner was entering it in the opposite direction.  The tide was close to low tide. 

[11] Earlier that day at about 11 am, when the tide was higher, Mr Balnaves and Mr Malone left from Mr Balnaves’ home at Hope Island to visit Couran Cove on South Stradbroke Island.  Mr Malone was holidaying in Australia from England and had become a friend of Mr Balnaves after they met through business.  They took about 45 minutes to travel along the north arm of the Coomera River and across the Broadwater to Couran Cove.  The area was of botanical interest and Mr Malone took photographs.  They had a quick lunch and then embarked upon the return journey.  The weather was good and the river was calm.  Mr Balnaves had travelled up or down the north arm of the Coomera River at least 30 or 40 times.  On entering the Coomera River Mr Balnaves saw that the tide was low, probably the lowest he had ever seen.  A lot more mud was exposed and the channel was constricted, making it more difficult than earlier in the day to navigate and for boats to pass without encountering problems from the other boat’s wake.

[12] On the return journey and in the vicinity of Wasp Creek the Bayliner overtook a larger boat that was being operated by its sole occupant, Mr Collins.  Some time after passing Mr Collins’ boat the Bayliner stopped at a bend in the river so that Mr Malone could photograph a vast number of migrating soldier crabs that were on a mudbank on its port side.  Mr Balnaves estimates that they were stopped for about a minute during which time photographs were taken.  He realised that Mr Collins’ boat was coming up close behind.  To avoid its wake he decided to “get out in front of him” and so he took his boat back towards the centre of the river.  The Bayliner accelerated to planing speed to try to increase the distance between it and
Mr Collins’ boat.  The course that the Bayliner took after leaving that bend and its speed prior to the collision are in contention.  The course taken by the Haines Hunter prior to the collision also is in contention.

[13] The collision occurred at the apex of the bend.  There is a dispute about on which side of the river the collision occurred.

[14] Mr Balnaves and Mr Malone were each seriously injured and ended up on the deck of the Bayliner.  The collision caused Mr Smith to be thrown from the Haines Hunter. He blacked out for some seconds, and then realised that he was under the Bayliner.  He emerged from under it and stood in what he described as nearly knee-deep mud.[13]  He suffered severe injuries to his backside and was bleeding profusely.  He also had a broken leg.  He had no strength, but was able to cling to the side of the Bayliner and call for help.  After some time Mr Malone heard Mr Smith’s cries for help and saw him with his arms on the Bayliner.  Mr Street SC, who appeared with Mr Harding of counsel for Mr Smith and Mr Smith’s employer, described Mr Malone’s actions in saving Mr Smith as heroic.  This is an accurate description of Mr Malone’s efforts in managing to drag Mr Smith on board, despite Mr Malone’s own severe injuries.  After pulling Mr Smith on board the Bayliner Mr Malone noticed that Mr Smith had a very severe cut to his leg.  Mr Malone removed his T shirt and used it to try to stop the bleeding. 

[15] Passages of conversation at about this time have some potential significance to the issues in dispute.  Mr Malone recalls that when Mr Smith was hanging onto the boat he shouted “I’ve been calling you”, to which Mr Malone responded “I couldn’t see you”.[14]  Mr Smith said that one of the men on board said “We didn’t see you”.  Not much turns on whether Mr Malone said “I didn’t see you” or “We didn’t see you”.  The issue is what meaning is to be attributed to these words.  One possible meaning is that Mr Malone, or both Mr Malone and Mr Balnaves, did not see the Haines Hunter prior to the collision.  However, I find that the meaning that Mr Malone intended to convey was that he (and Mr Balnaves) had not seen Mr Smith when he was in the water or clinging to the side of the Bayliner because they were injured and lying on the deck of the Bayliner.

[16] Mr Smith said “You’re supposed to pass port to port”.[15]  There was no response by either Mr Balnaves or Mr Malone to the implied assertion that the Bayliner had tried to pass on the wrong side of the Haines Hunter.  However, as Mr Malone stated, Mr Balnaves was almost unconscious and Mr Malone was in agony leaning over the back of the seat, and this explains the absence of any response.[16]

[17] Mr Smith recalls someone saying “We’ve got to get our stories right”, or “We’ve got to get it right”.  The making of such a statement is in dispute.

[18] Mr Collins arrived at the scene of the collision within a number of seconds.  He radioed for assistance.  The marina manager at Sanctuary Cove, Mr Barrett, and others responded quickly and travelled by vessel to the scene.  Emergency services were activated.  The rescuers transported the injured to the northern bank of the river and they were evacuated to hospital by helicopters that were able to land in a nearby paddock. 

[19] Photographic exhibits depict the damage sustained to each vessel in the collision.[17]  The photographs of the Bayliner show “a crushing-type impact to the prow near deck level and different types of damage to the starboard and port hull sides”.[18]  The photographs and Mr Lyons’ expert evidence indicate that the point of impact was on the starboard side of the bow of the Bayliner and that the damage to the starboard and port hull was a result of compressive force, as these areas momentarily folded.

[20] The damage to the Haines Hunter was to its port bow.[19]  As Mr Lyons opined in his report, the damage to the Haines Hunter port bow suggests it was either in the process of turning or had completed a partial turn to starboard at the time of the impact with the Bayliner vessel.  He notes that it is possible that the Haines Hunter was banked to starboard (that is with its port gunwale higher than its starboard) during the impact, which is evidenced by the lifting in a vertical direction of the fractured timber port gunwale strake and upwardly bent rubber/plastic gunwale protector strip.

[21] Mr Lyons acknowledged in his report the difficulty of drawing any conclusions about the speed and direction of each vessel, based upon the fact that the structural damage to the Bayliner was more extensive than that to the Haines Hunter.  The extent of damage may suggest that the Haines was travelling very fast at the time of impact, given that the Bayliner is a larger, heavier boat than the Haines Hunter.  Mr Lyons acknowledges, however, that it could be unconnected, in that “the Bayliner was simply struck at an attitude that made it structurally very vulnerable,  akin to a balloon being pricked by a pin”.[20]

[22] The Bayliner was just over six metres long and about two and a half metres wide.  It was powered by an inboard engine with a Mercruiser drive propulsion unit to which was fitted a three-blade aluminium propeller.  Its three propeller blades were sheared off at the hub.  It is unusual for a propeller to be in such a condition and expert opinion was that to be in that condition the propeller on the Bayliner would have come in contact with an object in the water or the river bottom.  If the Bayliner had been forced backwards and the stern drive and propeller were driven into the bottom of the river floor, then this could cause the propeller blades to shear off. 

[23] As a result of a police investigation into the collision, Mr Balnaves was charged with an offence under s 43(3) of the Transport Operations (Marine Safety) Act 1994 (“the TOMS Act”), namely that he caused the Bayliner to be operated unsafely, and that the unsafe operation caused grievous bodily harm to Mr Malone and Mr Smith.[21]  The charge involved an indictable offence and was instituted on 22 December 2004, nearly three years after the collision.  Despite submissions from his lawyers that the prosecution be discontinued, the matter proceeded.  For reasons that Mr Balnaves explained in his evidence in these proceedings he entered a plea of guilty to the charge in the Magistrates Court at Southport on 8 December 2005.  The factual basis for the plea was that as Mr Balnaves negotiated the bend he faced a head-on collision and that, believing he was in a situation of an imminent collision and with a bank on his right, he attempted to turn his vessel to the left and accelerated, attempting to pass directly across the bow of the oncoming vessel being driven by Mr Smith.[22]  Mr Glynn SC who appeared for Mr Balnaves when he was sentenced submitted that the behaviour was in the nature of a misjudgement which resulted in serious injuries to three people, including himself.  The sentence imposed was on the basis submitted, namely a misjudgement rather than recklessness.  Other matters put forward in mitigation led to the magistrate imposing a fine of $3,000 and no conviction being recorded.

[24] Mr Balnaves explained that he reluctantly pleaded guilty, acting on legal advice, because he was concerned at the possibility of a conviction on indictment following a trial in a higher court and the serious consequences that this would have for him in his business, including company directorships and his ability to travel overseas on business. 

[25] The version of events that formed the factual basis for Mr Balnaves’ guilty plea is strongly contested by Mr Smith and Mr Smith’s employer.

The factual issues in dispute

[26] The principal factual issues in dispute are:

 

  • The course taken by the Bayliner prior to the collision.  In particular, there is a dispute about whether it was on the correct, starboard side of the channel at about the time Mr Balnaves first saw the Haines Hunter and in the several seconds that followed; or was in the middle of the river and on the wrong side of the channel.

 

  • The speed of the Bayliner prior to the collision. There is a dispute about the speed the Bayliner reached and whether, as Mr Balnaves contends, it slowed substantially and to about 3-4 mph shortly before the collision.

 

  • The course taken by the Haines Hunter.  In particular, there is a dispute about the side of the channel it was on as it entered the bend and continued around it in the several seconds prior to the collision.  The speed of the Haines Hunter is not in contest.  The evidence is that its speed was at least 30 knots, and that it did not slow before the collision.

 

  • The location of the collision.  There is no dispute that the collision was in the vicinity of the bend near the apex of Coomera Island.  The dispute concerns on which side of the river and where in relation to the channel the collision occurred.  Associated with this issue are issues concerning the angle of impact, and what occurred to the vessels and their passengers immediately after the collision.  This evidence is of some use in attempting to determine the location of the collision.

 

I shall first give an account of the evidence of various witnesses with respect to these contentious issues before making an assessment of their evidence.

  

The contentious evidence

Mr Balnaves

[27] In order to get out in front of Mr Collins’ much larger boat Mr Balnaves says that he took the Bayliner “back towards the centre of the river, from the left-hand side into the centre, to move the boat in a safer position to be able to navigate the channel”.[23]  The planing speed of the Bayliner was about 15 miles per hour, and he reached planing speed.  He estimated that the Haines Hunter was in the vicinity of between 200 and 250 yards away when he first saw it.[24]  Mr Balnaves says that he was “progressing further towards the middle to the right hand side” of the river at the time that he saw the Haines Hunter and that he decelerated, taking the boat off the plane.[25]  He estimated that the lowest speed he reached after reducing speed was around about “three or four miles per hour”.[26]  He says that no more than 12 to 15 seconds elapsed between the time he first observed the Haines Hunter to the time the collision occurred.  During that time he became concerned that the Haines Hunter was not taking evasive action and was closing very fast.  He says that he took the Bayliner to the furtherest starboard side of the channel so that the boats could pass port to port.  However, as the seconds passed he was left with “very limited options” and could not go further to starboard without hitting the bank which was no more than a couple of metres away.[27]  In the last couple of seconds he took the view that the only way to move his boat out of the path of the Haines Hunter was to turn it to port “to run it over to the other side of the river and run it aground on the mud flats”.[28]  He pushed the accelerators down very hard and the boat started to turn slowly to port and to point in the direction that he wanted it to go,[29] but the Bayliner “would not respond to the accelerators”.[30]  In the last second before the collision and after Mr Balnaves says that he turned his vessel hard to port he believes that he saw some movement in the nature of a turn from the Haines Hunter.  He described the collision as a “T-bone collision” with the bow of the Haines Hunter colliding into the side of the Bayliner.[31] The impact seemed to smash the Bayliner down into the water, as the Haines Hunter seemed to come on top of the Bayliner.[32]  After the accident Mr Balnaves was left on the bottom of the boat and could not tell what was happening.  He then became conscious of someone yelling in the vicinity, and saw Mr Malone pull Mr Smith into the Bayliner.

[28] Under cross-examination Mr Balnaves initially refused to admit being in some way at fault, despite his plea of guilty.[33]  Eventually he conceded that he contributed to the accident.[34]  He says that he pleaded guilty because of the effect that a conviction in a higher court could have had upon his position as a director of a number of public companies and because it could have affected his ability to travel overseas which was a very important part of his business at the time.[35]  He realised that by pleading guilty he was admitting the essential elements of the offence.  Under
cross-examination, he acknowledged “To the extent there was a collision to some extent I am liable”.[36]  However, his acknowledged contributory negligence was said to be to a minor extent.[37] 

[29] Mr Balnaves emphatically denied saying the words “We’ve got to get our stories straight”.[38]  Mr Balnaves said he was hardly conscious and denied having such a conversation.[39]  He denied that the Bayliner was at all times on the plane, and travelling at about 30 knots.[40]  He also denied that the Bayliner was on the wrong side of the river and that the collision took place near the mudbanks on the southern side of the river, opposite to the area which he marked as the collision spot.[41] Mr Balnaves contended that this was impossible, particularly at a very low tide, because there was no way that boats could be speeding or planing given the depth of the river in that area.[42]  The Bayliner planed at a draft of just over a metre and, according to Mr Balnaves, you would want somewhere between one and a half metres to two metres of water to navigate safely.[43]

[30] Mr Balnaves rejected the suggestion that the late manoeuvre that he attempted was utterly contrary to the principles of good seamanship, if as he said, he was travelling at a speed of only a few knots on the starboard side of the channel.  On this version, Mr Balnaves preferred manoeuvring the vessel into a crossing position, rather than coming into contact with the river bank.  Mr Balnaves explained his actions as being “the best option to still try” rather than hit the embankment and crash into it and hurt himself and his passenger.[44] 

[31] Mr Balnaves said that he was not sure whether Mr Collins’ boat was going at around 22 knots when he earlier overtook it.[45]  He also had difficulty in providing an accurate estimate of the speed of his own boat prior to the collision.  He marked on exhibit 2 where he thought his vessel was and where the Haines Hunter was when he first saw it.  According to these markings the two vessels were approximately 310 metres apart and the position from his vessel to the collision site was about 200 metres.  On the basis of these markings the Bayliner would have averaged twice the speed of the Haines Hunter in the several seconds prior to the collision.  When it was pointed out to Mr Balnaves that his markings of distances on exhibit 2 meant that the Bayliner must have been going faster than the Haines Hunter to arrive at the collision impact he responded that the closing distances were only estimates and that his speed must have only been “marginally” faster than the Haines Hunter to arrive at the collision impact, given the drawing.  When it was put to him that he was travelling much faster than 15 knots Mr Balnaves responded that he did not believe so.[46]

[32] Mr Balnaves stated that at the time of impact the Haines Hunter was on the incorrect side of the channel and the Bayliner was on the correct side. He initially rejected the suggestion that if he had stayed on the correct side of the channel and MrSmith’s boat had been on its correct side of the channel they could have safely passed each other.  Mr Balnaves said that he did not believe “in that narrow space you could safely pass in a low tide”, but then accepted the suggestion that there was room for speedboats to pass.[47]  He had difficulty in estimating the width of the channel but maintained that the actual navigable part was somewhere between 7 and 11 metres.[48]

[33] In short summary, Mr Balnaves’ evidence was that on first observing the oncoming Haines Hunter he pulled further over to the right hand side of the river so that the vessels could safely pass port to port, that he reduced his speed so that he could manoeuvre the Bayliner and waited for the oncoming boat to react.[49]  When he first saw the Haines Hunter he says he was not immediately concerned “because it wasn’t an issue yet” and it was some 12 to 15 seconds away.[50]  He reacted when the Haines Hunter did not respond by reducing speed or changing direction.[51]  Initially it was hard for him to know on which side of the channel the Haines Hunter was “but as the curve started to come more of a direct line to me as it come round the bend, and within seconds to go and not seeing any apparent change, that is when I became seriously concerned”.[52] 

Mr Malone

[34] Mr Malone recalls stopping on the return journey for a couple of minutes to enable him to take a closer look at the mangroves at a point where the river opened up and seemed more like a lake.[53]  He saw Mr Collins’ boat coming and Mr Balnaves accelerated the Bayliner and “cut straight across the belly area heading back towards the right-hand side of the main channel”.[54]  The boat seemed to lift off through acceleration and then settle down again and, according to Mr Malone, slowed down and carried on heading towards the right-hand bank and continued fairly much parallel with that bank.[55]  He acknowledged that he did not know where the shallow part was in the river.[56]  However, he recalls that the Bayliner continued to move closer and closer to the right-hand bank, although it was not to a great extent because he was still running forward”.[57]  Mr Malone says that he saw the Haines Hunter coming around the bend.  His estimate, based on later looking at a Google map, is that it was about 200 metres away when he first saw it.  At that time he was not concerned about the prospect of colliding with it because he had seen many boats travelling fast on the river and it did not strike him as odd.[58]  Once the Haines Hunter had come right around the corner and was “almost on top of us” MrBalnaves let out a yell and made a manoeuvre. 

[35] In his oral evidence, and in earlier statements to the police, Mr Malone described the manoeuvres of both vessels in the few seconds prior to their collision.  His words, both oral and written, and his hand movements whilst giving evidence depicting the courses of the vessel were to the effect that the vessels were travelling in opposite directions on roughly the same arc, which he also described as the same wavelength.[59]  Then immediately before the accident both boats tried to turn in the same direction.  In his police statement Mr Malone said it was “like seeing a mirror image”.  Although there was scope for some confusion in his oral evidence with references to turning towards the left, I gained the firm impression that Mr Malone’s evidence was that Mr Balnaves made a late manoeuvre that turned the Bayliner to its port, and that Mr Smith’s boat also manoeuvred, although not so significantly, in the same direction.[60]  In his police statement Mr Malone says that both boats “completely broadsided each other.  Our right side against his left side”.[61]  In his evidence in chief he described the collision as “fairly much head on” because he was able to see the structural beam underneath the Haines Hunter.

[36] Because of his injuries as a result of the collision, Mr Malone was not able to say where the Bayliner was after the collision, and whether it was in the channel.[62]  He did not observe Mr Smith’s boat after the collision but can recall hearing its motor.[63]  When he saw Mr Smith hanging on the side of the Bayliner MrSmith’s head and torso were out of the water and the water was up to his waistline.  Mr Malone did not think that Mr Smith was standing on the base of the river but thought that he was hanging from the side of the boat in the water.[64]

[37] There is an apparent inconsistency between Mr Malone’s police statement dated 29March 2002 and his oral evidence.  In his police statement concerning the course and speed of the boats prior to the collision, Mr Malone stated:

 

“I do not remember if Neil changed speed.”

and he did not refer to it coming off the plane.[65]  His oral evidence was that the Bayliner “came off the plane” when it reached the right-hand bank.[66]  His evidence did not state that the Bayliner slowed to the speed of three to four miles per hour suggested by Mr Balnaves.

[38] Mr Malone’s evidence concerning the courses taken by the Bayliner and the Haines Hunter falls to be assessed in the light of his admitted lack of familiarity with the navigable channel and the fact that he did not know where the shallow part of the river was.  For instance, to say that the Bayliner was travelling on the righthand or starboard side of the river does not necessarily mean that it was travelling in the channel, let alone the starboard side of the channel.  Mr Malone told police on 3 March 2002 that the Bayliner “seemed to be miles off the bank”,[67] being a reference that he explained at the trial to be to the Coomera Island or mangrove-lined bank to his left.  He told police this is why he was not bothered when he saw the Haines Hunter approaching because he thought they had “masses of space”.  He acknowledged to police that his presumption was wrong and there was actually less space, but he did not realise this at the time.  Mr Malone prepared a rough sketch to supplement his police statement in March 2002.[68]  The sketch did not purport to be to scale, but serves to confirm his oral evidence that immediately prior to the collision, each vessel made a manoeuvre to turn in the direction of the mangrove-lined bank of Coomera Island.

Mr Smith

[39] Mr Smith estimated that he was travelling at about 30 knots, maybe a little more, as he approached the bend in the river.  He noticed the Bayliner in the far distance and made a move to his starboard to enable the boats to pass port to port.  It was only a slight move to starboard and as he continued to see the boat approach he says that he decided to move over “a little more” and made a distinct move to the starboard.[69]  Mr Smith estimated that the Bayliner was moving very fast compared to his pace and stated that it travelled twice the distance that he did.[70]  As the Bayliner approached him he kept to the starboard side.  He could not see any heads above the windscreen of the Bayliner to indicate that its occupants had seen him.  He did not see it make any deviation in its course or attempt to manoeuvre to the correct side of the river.[71]  He says that the Bayliner was “definitely on the plane” and coming upstream on the wrong side of the river on a “nice arc coming around the corner” without any deviation in its course.[72]

[40] He said that the Bayliner was not travelling directly towards him when he first saw it, and that it was travelling in an arc.[73]  Before he saw it he was travelling in the deepest part of the channel, and essentially in the middle of the river.[74]  He said that when he went on an arc into the river bend he was more to the left than the right side of the river, being a reference to the river’s width.  However, he was on the right side of the channel.[75]

[41] In January 2005 he told the Gold Coast Water Police that when he first saw the Bayliner he did not alter his speed or course as there was no indication that it was needed.[76]  Mr Smith explained in his oral evidence that in the seconds before the impact he undertook three manoeuvres.  The first was a slight move to starboard.  The second move to starboard was of about 30 degrees and the third was an even more pronounced move towards the southern bank, just seconds before the collision which resulted in him almost turning back on himself. The final manoeuvre involved a deviation of 45 degrees or more.[77]  The Haines Hunter travelled only “a matter of metres” after he executed that manoeuvre before the collision occurred.[78]

[42] According to Mr Smith, the collision took place at the apex of the bend and on the “south side of the stream”.[79]  There were about 10, possibly 15 seconds between when he first saw the Bayliner and the time of the collision.[80]  The Haines Hunter was hit on the port side and he was knocked into the river and ended up under the Bayliner.  When he stood up he was in knee-deep mud.[81]  The Haines Hunter continued under power back up the river and turned itself into the bank, probably about 10 or 15 metres away from the collision point.[82]

[43] Under cross-examination, Mr Smith insisted that the Bayliner made no deviation at all and that the collision was of its bow to the port side of his vessel.  He maintained his evidence that the Bayliner was planing immediately prior to the collision.

[44] He says that the Bayliner was travelling away from what he would describe as reasonable water and off to the Bayliner’s port side of the channel.[83]  He accepted that having observed the Bayliner go outside the channel into what he knew to be shallow water, he had to take “a great deal of care in relation to its passage of travel”.[84]  He says that he was concerned about the oncoming vessel, but never decreased his speed.[85]  He accepted that it must have seemed extraordinary to see this larger vessel proceeding on the plane in shallower water.[86]  He contradicted Mr Balnaves’ evidence that the Bayliner followed an arc close to the north bank, and said that it effectively came straight towards him.[87]  He could not see anyone behind the Bayliner’s windscreen, but presumed that someone was looking in his direction.[88]  He stated that it was normal practice in such a situation for there to be a last minute manoeuvre by the other vessel, and that “if they were observing where they were going they would have moved to their starboard side”.[89]  Mr Smith’s evidence was that he had to make a “split second decision” and that for him to “break the rules” and to go to the wrong side meant that the Bayliner still could have collided if it had made a move to its starboard.[90]

[45] He rejected the suggestion that travelling at 30 knots or more after he observed the Bayliner involved travelling at much too high a speed in the circumstances.  He accepted that caution was required and that the caution was elevated where there was less “reasonable water” available to him, and there was uncertainty on his part as to the likely manner of movement of the oncoming Bayliner.[91]

[46] Mr Smith denied that the mangroves on the point of Coomera Island at the bend obscured his view[92] and said that he had “absolute clear vision” to the far corner of the next bend.[93]

[47] He said that the collision between the vessels occurred well outside the channel,[94] and that when he came to the surface he was standing knee deep in mud at the front of the starboard side of the Bayliner.[95]  He marked this spot on an exhibit.[96]

[48] His evidence in chief that after the collision he heard one of the men in the boat saying “We’ve got to get our story right” differed from a statement made by him on 12 March 2002 when his recollection was that the words were “We’ve got to get it right”.  He accepted that in the intervening period he could have added the word “story” to his recollection.[97]  He could not definitely say who said these words because he did not see who said them, and, in effect, guessed that it was the person who pulled him into the boat.  However, he was definite in his recollection that such words were said.[98]  He said this conversation was embedded in his mind.[99]

[49] Mr Smith accepted the general proposition that deliberately running a vessel aground can be dangerous to the vessel and its occupants,[100] but said that if the Bayliner was travelling at a speed of two or three miles an hour near the northern bank it would not have presented a danger.[101] 

Mr Collins

[50] On the afternoon of 23 February 2002 Mr Collins was travelling upstream on the north arm of the Coomera River in his 26 foot Bertram boat and according to his instruments was travelling at 22 knots at the time.  He was overtaken by the Bayliner at a speed that he estimated as being close to twice his speed.[102]  He was somewhat surprised to later see the Bayliner stationary on the port side of the river in an area that he knew to be shallow.  The Bayliner took off with heavy acceleration with its bow up in the air as it was trying to come up on the plane.[103]  His evidence was:

 

“He took off in a straight line.  He didn’t deviate his course, and remembering this time I’m also watching my vessel because it’s a fairly narrow area there.  As much as there is a lot of water, the channel itself is narrow and I thought, gee, he is getting very close to the shallow water at the turn which was coming up on his port side.”[104]

[51] According to Mr Collins, the Bayliner was not in the navigable channel.  Mr Collins was familiar with the channel by reason of his experience and by reference at the time to a map that he had on board.  He thought at the time the Bayliner was “very close to the shallow water” and out of the channel, whereas it should have been on the starboard side.[105]  Mr Collins then saw the Haines Hunter travelling in the opposite direction.  He only saw it for a few seconds and could not judge its speed exactly, but thought it was travelling fairly quickly.  Both boats appeared to collide head-on, and both jumped up in the air. 

[52] Mr Collins was at the scene of the collision within “a handful of seconds” and saw Mr Smith in the water on the starboard side of the Bayliner.[106]  At this stage Mr Collins was about five metres away and was very conscious of the need to not foul his propellers with ropes or damage them on the bottom in case he had to take the injured to hospital.  The Bayliner was stationary.  Mr Collins saw a person who he thought to be the driver of the Bayliner and who was injured render assistance to Mr Smith by helping him out of the water and into the Bayliner.  Mr Smith placed an emergency mayday call. 

[53] Mr Collins’ evidence was that the Haines Hunter was on the correct side of the river and was “literally between a rock and a hard place because there wasn’t a lot of room on the tinny’s starboard side to move across, and had he moved across to the port side, he would have then, I guess, have basically been on the wrong side of the channel”.[107]

[54] Mr Collins contacted the Queensland Police the day after the collision and even stopped at the Water Police office, but it was closed.  He left his details, and returned to his principal place of residence in South Australia.[108]  Fortunately, Mr Collins had the presence of mind to dictate his own statement when he returned to South Australia and this became his police statement dated 28 February 2002.  He gave a further statement to South Australian police in April 2002.  His first written statement says that he had a clear view for approximately 200 metres before the river started to bend to the left, and that he was approximately 150 metres behind the Bayliner when the collision occurred.[109]

[55] Mr Smith’s self-prepared statement, and the Queensland Police Service statement of witness upon which it was based, did not attempt to identify the driver of the Bayliner, and the identity of the driver did not emerge as an issue until trial. Mr Collins’ recollection was that the driver had dark hair and he was fairly sure that he was not wearing a shirt.  However, he made the point that he could not see whether the driver was wearing a shirt or not when he was driving, and at the time he gave his first statement had no occasion to recall whether the driver was dark-haired.[110] By reference to television news footage of the rescue efforts shown to him at the trial Mr Collins thought that the driver of the Bayliner was the person shown wearing red bathers, and who did not have a T shirt.  He qualified his recollection on this point by observing that his evidence was given nearly eight years after the event.[111]  However at the conclusion of his cross-examination he was not prepared to concede that he was mistaken in his recollection about the person who was driving the boat at the time immediately prior to the collision.[112]

[56] Mr Collins explained that he could not mark on the exhibit the exact point where he was when the collision occurred, but said that it was close enough for him to have clear visibility into the back of the Bayliner and to see exactly where the Bayliner was when it hit the Haines Hunter.[113]  In terms of distances he thought that he was about 200 metres away from the accident, rather than the distance of about 300 metres suggested by the mark that he placed on the chart that became exhibit 33.  The difficulty of being precise in terms of metres apart was that it was not “a static situation”, and Mr Collins’ boat was moving at 22 knots.[114]  Mr Collins’ evidence was that he was less than 300 metres away and close enough to see the movement of the Bayliner.  He did not recall the Bayliner making any significant manoeuvre to alter course.[115]  He confirmed his statement to police that as the river started to twist to the left, the Bayliner started to make its port turn.[116]  He accepted that a vessel negotiating the bend would take an arc towards the left, following the bend.  He did not accept that someone viewing such a vessel from a couple of hundred metres away would perceive such a vessel as getting closer to the land on the left-hand side.[117]  He rejected the suggestion that his observations were affected by the fact that the Bayliner was taking an arc and appeared to be moving to its left. [118]Mr Collins said that when he observed the Bayliner it was not moving to its left.  He said it was not sufficiently advanced on the corner to have been taking much of an arc and was only at the stage of beginning to do so.

[57] Mr Collins was emphatic in his recollection that the Bayliner was not on the starboard side of the channel, but was on the port side of the channel and in shallow water.[119]  He said that he could clearly remember where the accident took place and that it was “right on the corner itself where the mud bank was”.[120]

[58] His evidence was that from where the Bayliner took off it travelled in a fairly straight line, and did not move diagonally across his bow,[121] and that it was “significantly to the port side of the channel and well away from the channel”.[122]

[59] Mr Collins did not suggest that the Bayliner reduced its speed after it planed or came off the plane, and the proposition that it did so was not specifically put to him in cross-examination.

Assessment of contentious evidence

[60] Subject to certain qualifications to which I will later refer, I generally accept the evidence of Mr Collins.  One qualification which applies to his evidence, and which applies to an even greater degree to the evidence of Mr Balnaves and Mr Smith, relates to the difficulty encountered by witnesses in marking precise courses and locations on charts in the course of their evidence,[123] and in estimating distances between moving vessels.  However, Mr Collins’ marks upon a copy of the hydrographic survey chart[124] gives a generally reliable indication of the location of the collision.  According to that chart he was at a distance of about 250 metres away from the collision at the time it occurred.  This is a greater distance than the 150 metres stated in his first written statement shortly after the accident or the 200 metres mentioned by him in evidence.  For the reasons given by him, it is difficult to be precise about the distance involved, given that his vessel was moving at 22 knots.  I accept his evidence that he was about 200 metres away from the collision when it occurred.

[61] I do not accept Mr Balnaves’ evidence as a reliable account of the speed of the Bayliner prior to the collision, its course prior to the collision or the location of the collision.

[62] Mr Balnaves’ recollection of slowing to about two to three miles per hour is not supported by the evidence of other witnesses.  It also seems improbable.  If the Bayliner slowed to about two to three miles per hour in the vicinity of the northern bank of the river it is improbable that Mr Balnaves would have undertaken the extremely dangerous manoeuvre of attempting to cross the path of the rapidly-approaching Haines Hunter rather than beach the Bayliner on the muddy bank at such a slow speed.  The version of events given by him entailed a serious error of judgment.  However, I do not accept that version.  If the Bayliner had been travelling at two to three miles per hour close to the northern bank then beaching it on this muddy, northern bank at that speed would have presented some danger to the Bayliner’s occupants and to the vessel.  However, that danger would have been moderate compared to the danger involved in attempting to cross the path of the Haines Hunter, especially if Mr Balnaves and Mr Malone had braced themselves for any impact with the bank.  The bank rose gradually out of the river before rising more steeply to the level of a paddock.[125]  Mr Balnaves’ failure to take this far-safer option makes it improbable that he was travelling as slow as two to three miles per hour in close proximity to the northern bank.

[63] Mr Balnaves’ evidence that the Bayliner slowed to about two to three miles per hour is difficult to reconcile with his other evidence, particularly the distances marked by him on the chart which became exhibit 2.  These marks depict the location of the Bayliner and the Haines Hunter when Mr Balnaves first saw the Haines Hunter.  On the basis of these markings, the Bayliner was twice as far from the point of collision as the Haines Hunter.  As previously noted, Mr Balnaves, like other witnesses, experienced difficulty in plotting positions and courses on charts.  However, this evidence concerning the approximate, respective distances that each boat travelled prior to the collision is difficult, if not impossible, to reconcile with Mr Balnaves’ evidence that he reached a speed of about 15 knots, and then slowed to about two to three miles per hour.  If he travelled the same distance as the Haines Hunter then his average speed would have been at least 30 knots.  If he travelled a greater distance than the Haines Hunter then the Bayliner’s average speed would have been even higher.  I find Mr Balnaves’ estimates of his speed unreliable.  I consider that he reached speeds substantially in excess of the speed suggested by him in order to outrun Mr Collins’ following vessel which was travelling at 22 knots.

[64] I accept that in the last few seconds before the collision Mr Balnaves attempted a manoeuvre by trying to turn the Bayliner in the direction of the southern, mangrove-lined bank.  However, his vessel did not respond to this last-second manoeuvre in time to avoid the accident. I do not accept that this manoeuvre occurred close to the northern bank as his evidence suggested.  I do not accept that the location of the collision was close to the northern bank.[126] 

[65] I consider that Mr Collins’ evidence about the location of the collision is more reliable. I found Mr Balnaves’ evidence on contested issues of fact to be generally unreliable. For example, his evidence about the point of impact[127] was inconsistent with the photographic evidence of the location of impact damage.

[66] As to Mr Malone’s evidence, I found Mr Malone to be an honest witness who did his best to recall events.  However, notwithstanding his genuine belief in the accuracy of his recollection, I consider that there was an element of reconstruction.[128]

[67] The reliability of his evidence was limited by his lack of familiarity with the location of the channel, and the impression that he may have gained at the time that there was a large body of navigable water to his left that left the Haines Hunter with sufficient room to pass.  He acknowledged as much in his interview with police.  The rough sketch that he prepared on 29 March 2002 is of limited use, not being to scale and not depicting the location of the navigable channel.[129]  It depicts a course taken by the Bayliner after it left what Mr Malone described in his evidence as the “belly” of the river at which the Bayliner stopped close to the mangrove-lined bank.  I accept that Mr Malone has a genuine recollection of having taken a course from such a location away from these mudbanks and tending more towards the right side of the river.  However, his impression that he was on the righthand side of the river does not mean that the Bayliner took a course along the channel and was on the correct side of the channel as it entered the next bend.

[68] Mr Malone’s evidence of the side of the river that the Bayliner was on is inconsistent with his pleaded case that the Bayliner was proceeding upstream on the port side of the river.[130]This inconsistency was unexplained and undermines the reliability of his evidence at trial.

[69] I do not accept his evidence at trial that the Bayliner came off the plane.  He did not suggest that the Bayliner slowed to the extent that Mr Balnaves suggested that it did, being an account which I reject.  Incidentally, Mr Malone’s pleaded case was that the Bayliner was travelling at a speed that was excessive in the circumstances.  Importantly, Mr Malone’s police statement dated 29 March 2002 stated “I do not remember if Neil changed speed”.  This statement made no reference to the Bayliner coming off its plane.  His recollection at trial of it doing so is unreliable and appears to be the result of some reconstruction.  His evidence of not remembering if Mr Balnaves changed speed, which was given about a month after the incident, is more reliable than his evidence at trial nearly eight years later. 

[70] I accept Mr Malone’s evidence that in the last few seconds before the collision MrBalnaves turned the Bayliner harshly away to the left and the approaching Haines Hunter turned in the same direction.  This account was given in his first police statement and I do not accept the criticisms made in the submissions of MrSmith and his employer concerning Mr Malone’s oral evidence about these final manoeuvres. 

[71] Because of his injuries, Mr Malone was unable to identify the location of the Bayliner immediately after the collision when Mr Smith was clinging to it and asking for help.

[72] As to Mr Smith’s evidence, I found him to be an honest witness who attempted, with some difficulty, to recollect these traumatic events.

[73] I find it improbable that the Bayliner came as close to the southern bank at the apex of the bend as Mr Smith depicted in his plotting of its course in exhibit 23.  The shallowness of the water near this point would not have allowed the Bayliner to pass so close to the apex. 

[74] Like other witnesses, Mr Smith had difficulty in estimating distances.  His marking on exhibit 23 of the distance which he travelled between when he first saw the Bayliner to the point of collision is in the order of 50 metres.  This cannot be reconciled with his evidence of his speed (30 knots or a little more) in the period of about 10 seconds between his first observation and collision.  I find the estimate of having only travelled a distance of about 50 metres, as depicted on exhibit 23, to be unreliable. 

[75] I accept his estimate that he had the Bayliner in view for 10, or perhaps 15 seconds.  It seems likely that he would have travelled approximately 150 metres between first seeing the Bayliner to the point of collision.  I find that he understated the extent to which mangroves on the shore obscured his view in the direction of the next bend.  However, I accept that he was able to observe the Bayliner, and I accept his evidence that it appeared to be on the wrong side of the channel when he first saw it.  I accept his evidence about the general location of the Bayliner and that it was not on the northern side of the channel.  I accept his evidence that at this time he was not particularly concerned, and expected the Bayliner to adjust its course.  I accept his evidence that the Bayliner remained on its plane and continued at high speed.  I accept Mr Smith’s evidence about his late manoeuvres to starboard to avoid the collision.

[76] I accept his evidence that the collision occurred on the southern side of the navigable channel, and that after the collision he found himself submerged under the Bayliner.  His evidence concerning the approximate location of the collision is supported by Mr Collins, who I regard as an independent and reliable witness.

[77] Mr Smith apparently suffered the severe injuries that he did by coming into contact with a propeller.[131]  In any case, I find that he stood up on the starboard side of the Bayliner in mud at about the place depicted by him by a blue dot on exhibit 23, rather than in the deep water of the channel.

[78] As to the evidence of Mr Collins, I found him to be a reliable witness.  His evidence concerning the course taken by the Bayliner was based observations by a person who was familiar with the river and its channel.  His evidence concerning the speed of the Bayliner was based upon his observation and knowledge of the speed of his own vessel.  His evidence concerning the location of the collision was inherently reliable, given that he observed the collision, and arrived at the scene within seconds.

[79] I do not consider that the general reliability of Mr Collins’ evidence is significantly undermined by his belief that the driver of the Bayliner was the person depicted on the television footage as wearing red shorts and no shirt, namely Mr Malone.  This evidence, given for the first time at the trial, involved a substantial element of reconstruction, based upon his recollection of the hair colour of the two occupants of the Bayliner.  He had no particular reason to give close attention to the hair colour of those individuals at the time, and his attempt to identify the driver of the Bayliner by reference to television footage was mistaken.  Significantly, he was not asked by police at about the time of the collision to give a detailed description of the driver of the Bayliner.  His police statement[132] described the person who pulled MrSmith from the water as one of the “passengers”. The identity of the driver of the Bayliner seemingly was not a matter of concern to the Queensland Police, given the absence of any description in the witness statements taken from Mr Collins.[133] MrBalnaves admitted to being the driver and pleaded guilty.  The identity of the driver of the Bayliner was not an issue so far as the defendants in Mr Balnaves’ proceeding were concerned until shortly before the trial.  They apparently did not raise the issue with Mr Collins about four years ago,[134] and admitted in their defence that Mr Balnaves was the driver.  The possibility of withdrawing that admission arose in the course of the trial in the light of Mr Collins’ recollection.  However, Mr Malone subsequently gave evidence that he was not the driver, and no application was made to withdraw the admission.   Mr Collins adhered to his evidence in chief that, to the best of his recollection, the driver of the Bayliner was the person with dark hair who was depicted on television footage as wearing red shorts and no shirt.  Mr Collins’ unreliable reconstruction in this regard and not conceding his error in his recollection of the identity of the driver does not prompt me to form an adverse view of his reliability on significant issues concerning the course taken by the Bayliner prior to the collision, its speed or the location of the collision.  His focus of attention at the time was on the Bayliner and the events leading up to the collision, not on the hair colour or other attributes of its driver.  He recorded his recollection of significant matters shortly after the events.

[80] I do not accept the submission made on behalf of Mr Balnaves that the evidence of Mr Collins concerning the speed of the Bayliner and the position of the boats on the river at the point of impact should be rejected because it is said to be “diametrically opposed” to the evidence of Mr Malone.  To the extent that their evidence conflicts, I generally prefer the evidence of Mr Collins.  I prefer the evidence of Mr Collins for the reasons that I have already given concerning his reliability, his demeanour in giving evidence, his greater familiarity with the scene, his unobstructed observation of matters and the fact that his arrival on the scene of the collision within seconds enabled him to identify its location.  He was able to identify the location of MrSmith and the vessels after the collision, which was something that Mr Malone was unable to do because of his injuries.

[81] I do not consider that the evidence of Mr Collins and Mr Malone is “diametrically opposed”.  They observed the collision from different points of view, and this different perspective naturally affected their evidence.  Mr Collins’ observations were from a distance and he did not have the same opportunity as Mr Malone to observe the last-second manoeuvre by either boat.  Mr Collins only saw the Haines Hunter for a few seconds, whereas Mr Malone observed it for a slightly longer period.  Mr Collins was in a better position than Mr Malone to observe the course that the Bayliner took prior to the collision in relation to the channel, with which he was familiar. 

[82] In addition to the qualification that I have earlier mentioned concerning the reliability of distances marked on charts, my general acceptance of Mr Collins’ evidence is qualified in two respects.  The first is his mistaken recollection that the driver of the Bayliner was Mr Malone.  The second arises from the fact that his observations were made from a distance of about 200 metres from the collision.  Because he only saw the Haines Hunter for a few seconds and, as MrSmith’s evidence indicated, the final manoeuvre by the Haines Hunter resulted in it only travelling a matter of metres prior to the collision, Mr Collins was not well-placed to notice the last-second manoeuvres by the Haines Hunter.  Similarly, because of his distance from the scene of the collision he did not apparently detect the last-second manoeuvre by the Bayliner.  He did, however, see the collision and its location.  He described the collision as head-on, being a description also given by Mr Malone in his evidence.  This is not an unreliable description of how the bow of the Bayliner impacted with the port side of the Haines Hunter, forward of its midships. 

[83] Subject to the qualifications that I have identified, I accept the evidence of MrCollins with respect to the course taken by the Bayliner prior to the collision, the speed of the Bayliner prior to the collision, the location of the Haines Hunter on the river prior to the collision and the location of the collision.

Non-contentious evidence

[84] Mr Barrett arrived at the scene approximately 30 minutes after the collision occurred.  He observed the Bayliner in a position near the southern bank on the point of the bend.  During those 30 minutes the Bayliner may have altered position due to currents in the river and changes in tide and, possibly, wash from a passing water taxi. 

[85] Mr Cantrill and Mr Witt gave evidence in relation to tides and the level of the river at about the time of the collision.

[86] Mr Porter, an expert in relation to propellers, gave evidence in relation to the shearing off of propeller blades.  In his experience, the propeller blades of the Bayliner may have been sheared off because they came into contact with a solid object, such as a river bottom or a mudbank.[135]  They could be sheared off if left running in hard mud.[136]  However, the propellers on stern drives have a rubber hub that is vulcanised onto the drive shaft, and if the propeller comes into contact with something hard or heavy the rubber will “let go” inside the hub.[137]  This feature is designed to prevent damage to gears and other internal working parts in the drive shaft.  Mr Porter gave evidence that propeller blades could be sheared in hard mud, but that normally a propeller moving forward in mud would be bent, not sheared.[138]

[87] Mr Hipkins, in an expert report, canvassed the scenario of the Bayliner being on the correct side of the river with the stern drive stuck in the mud, effectively anchored by the stern and an impact pushing it back into the mudbank, thereby shearing the propeller blades off.[139]  Under cross-examination he acknowledged that propeller blades can be sheared off by a mudbank and that this could have happened on either side of the river.[140]  His opinion was that it was more likely that the blades were sheared off by the boat being shoved backwards, rather than by running forward.[141] 

[88] In summary, the evidence of Mr Porter and Mr Hipkins indicated that the propeller blades of the Bayliner could have been sheared off by being buried in mud, which is more likely to occur if they were moving backwards. Alternatively the blades could have sheared off if they hit a hard object. 

[89] Mr Lyons, an engineer who specialises in composite materials engineering, provided a report about the type of collision that would be consistent with the damage displayed in photographs provided to him.  As previously noted, Mr Lyons was unable to say whether the structural damage to the Bayliner suggested that the Haines Hunter was travelling very fast at the time of impact or was unconnected, in that the Bayliner was simply struck at an attitude that made it structurally very vulnerable.

[90] If one was to assume that the collision was directly bow to bow, then an appeal to what was described in Mr Balnaves’ submissions as “simple high school physics which does not need to be the subject of expert evidence” and common experience was submitted to lead to the conclusion that the momentum of a heavy object at speed would carry it forward when struck by a lighter object at speed.  Mr Balnaves submits that there “is simply no way that the Bayliner could have been travelling at any speed at the point of impact because it was too shallow for the boat to be planing, and it could not have been pushed back to shear the propeller blades.”

[91] I accept that the Bayliner could not have travelled very close to the Coomera Island bank because of the shallow water and mudbanks in that vicinity.  However, it would have been able to travel on the plane closer to the channel.  As to the shearing of the propeller blades, and reliance on high school physics, the scenario advanced by Mr Balnaves’ submissions of the Bayliner being stopped or almost stopped at the time of impact is inconsistent with eye witness evidence which commands acceptance.  In any case, the impact of the vessels was not directly bow to bow.  The Bayliner’s bow impacted with the Haines Hunter on the port side of the Haines Hunter, forward of midships.  The evidence of eye witnesses was not to the effect that the collision involved a glancing impact which knocked each vessel slightly off course.  Instead, the evidence was of a forceful collision.  There was no reliable evidence of the precise movement through the water of each vessel immediately after the collision and, understandably, the parties did not seek to rely upon “expert opinion” that attempted to reconstruct the movements of the vessels after the collision.[142]  On the basis of reliable eye witness evidence, particularly the evidence of Mr Collins, I find that immediately after the collision the Bayliner was in shallow water above a mudbank on the Coomera Island side of the channel.  It is possible that as a result of the collision the Bayliner went backwards into this mudbank, resulting in its propeller blades being sheared off.  It is also possible that the propeller blades hit Mr Smith, resulting in his severe injuries.  The propeller blades may have hit some other hard object in the river or in the mudbank.

[92] The evidence of the experts concerning the shearing of the propeller blades, in conjunction with evidence of the points of impact on the vessels and the nature of the collision, does not persuade me to conclude that there “can be no doubt on the evidence that the Bayliner was stopped or almost stopped at the time of impact.”[143]  It seems likely that the propeller blades were sheared off when they came into contact at substantial speed with the mudbank or hit a hard object.  The evidence leaves open the possibility that the Bayliner’s propeller shaft hit a mudbank as a result of the Bayliner being violently turned around as a result of the collision, in which event the blades may have entered the mudbank backwards.  The precise path of the Bayliner immediately after the collision is not proven.  However, I am satisfied that it ended up on a mudbank on the Coomera Island side of the channel and this probably was the vicinity in which the propeller blades were sheared.  The evidence of propeller shearing does not persuade me to conclude that the Bayliner was stopped or almost stopped at the time of impact.

Findings of fact

[93] Based on the evidence that I have found to be reliable, I reach the following findings of fact with respect to disputed questions of fact.

[94] Prior to the collision the Haines Hunter travelled downstream as it approached the bend at a speed of 30 knots or a little more.  When Mr Smith first saw the Bayliner the Haines Hunter was in the middle of the navigable channel.  The Bayliner was on the wrong side of the channel and Mr Smith expected the Bayliner to correct its course.  Shortly afterwards he made a slight movement of the Haines Hunter to its starboard side of the channel.  The Haines Hunter did not slow during the period of approximately 10 seconds between the time that Mr Smith first saw the Bayliner and the time of the collision.

[95] The Bayliner left a stationary position near the edge of the mangroves[144] and accelerated rapidly to outrun Mr Collins’ boat that was following at 22 knots.  Upon accelerating the bow of the Bayliner lifted steeply out of the water, after which the Bayliner travelled on its plane at a speed substantially in excess of its planing speed of 15 knots.  The average speed of the Bayliner after it planed was at least 30knots.  The Bayliner moved towards the right side of the river so as to avoid mudbanks close to Coomera Island.  However, it remained close to the shallow water to its port.  It was outside and to the port side of the channel.  It commenced an arc to navigate around the upcoming bend.  Prior to doing so it did not move to the correct, starboard side of the channel.  In effect, it cut the corner.

[96] In the several seconds before the accident the Haines Hunter and the Bayliner were travelling in opposite directions roughly on the same path.  The driver of each vessel expected the other to take corrective action. Mr Smith expected the Bayliner to move to its starboard.  Mr Balnaves, probably believing that the Haines Hunter had more navigable water to move to its starboard than it in fact had, expected the Haines Hunter to move to its starboard.

[97] In the last few seconds before the collision the Haines Hunter made two manoeuvres.  The first was to turn to starboard.  The next, which occurred immediately before the collision involved a harsher turn to starboard.  The Haines Hunter travelled only some metres after this last manoeuvre before the collision. 

[98] In the last few seconds before the collision the Bayliner attempted to turn to its port and in the direction of Coomera Island.  The Bayliner did not respond in sufficient time to this last-second change of course. 

[99] The collision occurred to the south of the navigable channel and in the vicinity marked by Mr Collins on exhibit 33, probably slightly to the west of that point. It occurred on the opposite side of the river to the letter H in the word NORTH that appears on that Hydrographic Survey of the North Arm.[145]

[100] Mr Smith was thrown out of the Haines Hunter and was submerged under the Bayliner, where he suffered severe cuts and other injuries.  He surfaced on the starboard side of the Bayliner and was able to stand in knee-deep mud at about the point marked by him by a blue dot on exhibit 23.  He was pulled into the boat by MrMalone who said “I didn’t see you”.  Mr Smith said “You should pass port to port”.  Mr Smith heard someone say “We’ve got to get it right”, which he interpreted then, or later, as meaning “We’ve got to get our story right”.  It is possible that Mr Balnaves, despite his serious injuries, realised that he and MrSmith were both at fault and that they would face investigations into their conduct and said words to this effect.  However, the evidence does not satisfy me whether it was Mr Balnaves or Mr Malone who said “We’ve got to get it right”.  The words are open to innocent interpretations, including giving proper attention to MrSmith’s injuries.  Mr Smith was not in a physical or mental state to identify who said “We’ve got to get it right”, and I am not satisfied that Mr Balnaves said these words, intending to mean that he and someone else should get their stories right.  It is highly improbable that Mr Balnaves would have said to Mr Malone words to the effect “We’ve got to get our story right” in Mr Smith’s presence if Mr Balnaves intended to concoct a story to Mr Smith’s disadvantage. 

[101] The findings that I have made concerning the principal factual issues in dispute in relation to the speed and course of each vessel and the location of the collision are based principally upon my acceptance of the evidence of certain eye witnesses, particularly Mr Collins, and my rejection of certain evidence which I found to be unreliable.

[102] My finding in relation to the speed of the Haines Hunter is based upon acceptance of Mr Smith’s evidence in that regard.  My findings in relation to the speed of the Bayliner are based upon acceptance of the evidence of Mr Collins and Mr Smith in that regard, and my rejection of the evidence of Mr Balnaves and Mr Malone which I found to be unreliable concerning the speed of the Bayliner.  The evidence of MrBalnaves that he was not travelling much faster than 15 knots struck me as a reconstructed belief, rather than a reliable recollection.  It also is difficult to reconcile with his evidence that he was attempting to outrun Mr Collins who was travelling at 22 knots.  Mr Balnaves’ evidence is also difficult to reconcile with his evidence and the evidence of Mr Smith about the relative distances that each vessel travelled in the 10 or 12 seconds before the collision.

[103] The Haines Hunter was in the middle of the navigation channel before entering the bend.  It then moved slightly towards the southern side of the channel.  The significant manoeuvre that Mr Smith estimated to be in the order of 30 per cent meant that  immediately before the collision he could not go much further to starboard without hitting a mudbank at speed.  At this time it also would have been a dangerous manoeuvre for the Haines Hunter to turn to its port and to cross towards the northern side of the channel if, as Mr Smith expected, the Bayliner was to correct its course to allow the boats to correctly pass port to port. 

[104] It was submitted on behalf of Mr Malone that:

 

“Further, given the position of the Bayliner adjacent to the northern bank, the Haines Hunter had at least 20 metres of navigable channel on the Bayliner’s port side to pass.  It is inexplicable on the evidence why Smith did not safely navigate his vessel.”

I reject this submission because its factual premise is wrong.  The Bayliner was not adjacent to the northern bank.  The contention that it was close to the northern bank and had its propeller blades sheared off as it was forced backwards into the mud on the northern side is contradicted by the direct observations of Mr Collins and MrSmith concerning the location of the collision in relation to the channel and the evidence of where the Bayliner was located immediately after the collision, namely on a mudbank on the southern side of the channel. 

The negligence of Mr Smith

[105] Mr Smith continued to proceed at 30 knots or slightly more after observing the Bayliner.  He did so despite observing that the Bayliner was on the wrong side of the channel.  As he conceded in cross-examination, he had to take “a great deal of care in relation to its passage of travel”.  There was limited “reasonable water” available to him, and there was uncertainty on his part as to the likely movement of the oncoming Bayliner.  As he acknowledged, it was extraordinary to see the Bayliner proceeding on its plane at high speed outside the channel.

[106] Proceeding at 30 knots or more after he observed the Bayliner’s course was unsafe, and negligent, in the circumstances.

[107] The opinion of Mr Hipkins that the Haines Hunter could travel safely at 30 knots with other vessels coming in the opposite direction provided they both stayed on the correct side of the channel and kept a lookout does not apply in the circumstances because the Bayliner was not on the correct side of the channel.  It was unsafe to presume that the Bayliner would take the necessary evasive action.  Mr Smith presumed, but did not know, that the Bayliner’s occupants had observed him.  The narrowness of the navigable channel at such a low tide allowed limited scope for
Mr Smith to turn hard to starboard whilst travelling at speed, lest he hit a mudbank.  These features made it imperative for him to slow and take earlier action than he did to avoid the path of the Bayliner.

[108] It was not reasonable to simply expect the Bayliner to take corrective action.  It was negligent of Mr Smith to not slow in the circumstances. It was submitted that he was entitled to assume that the driver of the oncoming vessel knew the rules, and would comply with them, and therefore he did not need to slow.[146]  Mr Street SC advanced the analogy of driving down a country lane and seeing another car coming in the opposite direction.  In that situation drivers assume that both are going to comply with the rules of the road and allow each other to pass on the correct side.  It was submitted to be the same on the sea.[147]  However, the analogy does not apply because Mr Smith was not entitled to assume that the oncoming Bayliner was going to comply with the rules.  It was on the wrong side of the channel.  There was a need for great caution.

[109] I find that Mr Smith was negligent in failing to proceed at a safe speed so that he could take proper and effective action to avoid a collision.  This involved a breach of Rule 6 of the “Collision Regulations”.[148]  I find that he failed to take timely action to avoid the collision by slowing as soon as he saw the Bayliner on the wrong side of the channel.  This involved a breach of Rule 8 of the Collision Regulations. He did not immediately turn hard to starboard upon seeing the Bayliner.  This action was required in the extraordinary circumstances in which he found himself in order to avoid a collision and to ensure that the vessels passed port to port.  His failure to do so breached Rule 14 of the Collision Regulations.  It was negligent.

[110] Mr Smith’s negligent conduct in proceeding at a speed that was excessive in the circumstances and in not taking more timely action to alter course materially contributed to the collision.  The unchallenged evidence of Mr Hipkins, based on his experience of designing and operating vessels like the Haines Hunter, is that such craft will come to a stop very quickly when engine power is cut.[149]

[111] If Mr Smith had promptly slowed the Haines Hunter and taken earlier action in turning it hard to starboard so as to avoid a collision then the Haines Hunter and the Bayliner probably would have passed port to port, and the collision would have been avoided.

[112] I conclude in Mr Balnaves’ proceeding that he has established liability against Smith and that Mr Smith’s employer, the second defendant, is vicariously liable for Mr Smith’s negligence.

[113] I conclude in Mr Malone’s proceeding that he has established liability against MrSmith and that Mr Smith’s employer, the second defendant, is vicariously liable for Mr Smith’s negligence. 

The negligence of Mr Balnaves

[114] Mr Balnaves caused the Bayliner to travel at high speed on the incorrect side of the channel at low tide.  This conduct placed himself and his passenger in danger.  Having placed the Bayliner on a collision course with the Haines Hunter, which MrBalnaves appreciated was approaching at high speed, Mr Balnaves failed to take effective action to avoid a collision.  The manoeuvre that he attempted a few seconds before the collision did not avoid it.  There was insufficient time for the Bayliner to respond to this manoeuvre and cross the path of the Haines Hunter.  Instead, this last-second manoeuvre actually contributed to the collision as the Bayliner’s bow collided with the Haines Hunter.

[115] I find that Mr Balnaves was negligent in failing to proceed at a safe speed so that he could take proper and effective action to avoid a collision.  This involved a breach of Rule 6 of the Collision Regulations. He also was negligent in that he failed to keep as near to the outer limit of the channel on his starboard side as possible.  This involved a breach of Rule 9 of the Collision Regulations. He negligently failed to alter the course of the Bayliner to starboard to ensure that the boats passed port to port. This involved a breach of Rule 14 of the Collision Regulations.

[116] In his original Reply and in response to the pleaded allegations of contributory negligence, Mr Balnaves admitted that he pleaded guilty to the charge for breach of s 43(3) of the TOMS Act rather than contesting it and “to that extent, admits that he is contributorily negligent to the extent of not more than 25%”.  This admission of contributory negligence was withdrawn in his Amended Reply.

[117] Mr Balnaves’ plea of guilty was based upon a version of events that I have not accepted.  His conduct was more culpable than the version of events that formed the basis of his guilty plea, or the conduct which he admitted under cross-examination amounted to contributory negligence.

[118] This is not a case in which a plaintiff, having complied with the rules and being on the correct side of the channel, found himself on the “horns of a dilemma”, and was required to take desperate action to avoid an inevitable accident by moving onto the incorrect side of the channel.[150]  Mr Balnaves was not on the correct side of the channel to start with.  If he had been close to the northern bank, and travelling at the slow speed that his evidence suggested and that reasonable care necessitated, a collision could have been avoided.  However he was not travelling at a slow speed on the correct side of the channel and close to the bank.  He was travelling at a high speed in the middle of the river.  When he realised too late that he was on a collision course he took evasive action which failed to avoid the collision. 

[119] In Mr Balnaves’ action, I find that the collision and the injuries that he sustained in consequence of it were caused or contributed to by his own negligence.

[120] In Mr Malone’s action, I find that Mr Balnaves’ negligence materially contributed to the collision.  I conclude that Mr Malone has established liability against
Mr Balnaves.

Contribution and apportionment under statute

[121] Both Mr Balnaves and the defendants in his proceeding contend that the extent of Mr Balnaves’ contributory negligence falls to be determined according to a determination of the relative degree of “fault” in percentage terms.  The defendants contend that the apportionment provisions of s 259 of the Navigation Act apply. However, that section applies to damage or loss caused to one or more ships, to their cargoes or freight, or to any property on board.  Mr Balnaves contends that the Navigation Act’s provisions do not apply because the Haines Hunter was a trading ship on an intrastate voyage and the Bayliner was a pleasure craft.  If the provisions of the Navigation Act do not apply then contributory negligence is determined, according to Mr Balnaves’ submissions, under the contributory negligence provision of the Law Reform Act 1995 (Qld). 

[122] I raised for counsel’s consideration an argument that the contributory negligence and apportionment provisions of the Act did not effect an implied repeal of the specific provisions of the maritime rule enacted by the Judicature Act 1876 (Qld)s 5(9).  This provision was relocated to become s 247 of the Supreme Court Act 1995 (Qld).  Section 247 provides:

 

247  In cases of collision rules of admiralty to prevail

 

In any cause or proceeding for damages arising out of a collision between 2 ships if both ships shall be found to have been in fault the rules hitherto in force in the High Court of Admiralty so far as they have been at variance with the rules in force in the courts of common law shall prevail.”

An argument is noted, without being embraced, by the learned authors Davies and Dickie[151]  that there would have been no point in moving s 247 to its new location if it had been impliedly repealed by passage of the general apportionment legislation in 1952.  Mr Street SC and Mr Harding of counsel advanced the following written submissions in response to this argument:

 

“45.Section 247 of the Supreme Court Act 1995 had an operation that was much more confined than that suggested by Davies & Dickie as it was addressing the variance between the rules in force of common law and that in admiralty.  The variance in that regard at that time was that the courts of common law would have precluded any right to recover by reason of contributory negligence.  On the other hand, an admiralty court would have permitted recovery.  It was that variance and that variance only that s.247 overcame.

 

46. Further, to construe s.247 as precluding apportionment for fault ignores the words “so far as they have been at variance with the rules in force in the courts of common law shall prevail”.  In these circumstances, s.247 does not preclude application of the Queensland contributory negligence and contribution provisions in ss. 6 and 10 of the Law Reform Act 1995.  Further, the language of s.247 enacted in 1995 applies the rules “hitherto in force” in the High Court of Admiralty.  This is a fresh enactment and not frozen by when first enacted to 1876 and accordingly picks up the apportionment of fault practice currently applied in the High Court of Admiralty as at 1995.  On any view there was no 50/50 apportionment in the High Court of Admiralty as at 1995 or post 1911, to the extent not already abandoned, as contended by the defendants, Astley v Austrust (1999) 197 CLR 1 at 29,82 and fn 99.

 

47. Further, the ancient 50/50 principle identified by Davies & Dickie was not universally applied, and is not and was not “a rule in force”.  Therefore s. 247 does not work.

 

48. Further, the Admiralty Court principles that apportion loss based on dolus or culpa is applicable as discussed in Alford v McGee (1952) 85 CLR 437 at 453; Australian Maritime Law 2nd ed White at 223 and fn.76.  Section 247 did not prescribe or prevent apportionment according to fault.

 

49. Further, s.247 of the Supreme Court Act 1995 cannot override s.39 of the Judiciary Act 1903 in its conferral of admiralty and maritime jurisdiction on the Supreme Court of Queensland pursuant to s. 76 (iii) of the Constitution.  That Constitutional conferral of jurisdiction on this Honourable Court permits the application of equitable principle of apportionment of fault.  To the extent that s.247 would confine the jurisdiction exercisable by this Honourable Court in respect of collision to rules in force in the old High Court of admiralty, it is inconsistent and cannot be applied.  The equitable jurisdiction exercised by this Honourable Court in its admiralty jurisdiction provides apportionment according to fault and this jurisdiction is also conferred by s.9 and s.4 of the Admiralty Act 1988.  This Act also excludes application of s.247 giving effect to jurisdictional limitations derived from the old High Court of Admiralty as at 1876.

 

50.Further, in any event, s.247 of the Supreme Court Act 1995 as a State Act cannot override s.259 of the Navigation Act 1912 in so far as that statute that applies.”

The arguments advanced by Mr Street SC and Mr Harding have considerable force.  In addition, they submit that the provisions of ss 6 and 10 of the Law Reform Act are of a remedial kind and should be given effect to, and that “the work done by s 247 is of the narrowest scope and is confined to removal of the defence of contributory negligence as an absolute defence and does not manifest an intention to proscribe the work done by ss 6 and 10”.  This argument is joined in by counsel for Mr Balnaves.  I accept it.  The remedial provisions of ss 6 and 10 of the Law Reform Act  were first enacted in Queensland in 1952.[152]  They permit determinations of contributory negligence and apportionment between defendants in cases to which the provisions of the Navigation Act do not apply.  I am reluctant to infer that the intent of the Queensland Parliament in 1995, when it relocated a large number of provisions into the Supreme Court Act 1995, was to limit the availability of the beneficial legislation that had been passed in 1952.  I note that the learned authors Davies and Dickie do not contend that the position is clear[153] and they correctly observe that it would be rather surprising that the general maritime law 50/50 apportionment rule still governs, no matter what the respective degrees of fault in a case to which the Navigation Act does not apply.[154] 

[123] Accordingly, I accept the parties’ submissions that I should proceed to assess Mr Balnaves’ contributory negligence by considering the respective fault of
Mr Balnaves and Mr Smith.  In accordance with well-established principles, I have regard to the degree of departure from the standard of care of the reasonable person[155] and also compare the relative importance of the acts of the parties in causing the damage.[156]  It is the whole conduct of each negligent party in relation to the circumstances of the collision which must be subject to comparative examination.[157]

Assessment of contributory negligence

[124] In some respects, the respective fault of Mr Smith and Mr Balnaves was the same.  Each entered the bend at high speed when the navigable channel was restricted because of a very low tide.  Visibility around the bend was restricted to some extent by mangroves on the shore of Coomera Island.  Each driver expected the other to adjust course to enable them to pass, and because of the speed at which they approached each other, there was insufficient time left in the last few seconds to take effective evasive action.

[125] However, there is an important respect in which the negligence of Mr Balnaves was materially different to the negligence of Mr Smith.  In seeking to outrun Mr Collins’ vessel, Mr Balnaves did not move the Bayliner to the starboard side of the navigable channel and, instead, proceeded in water that was shallower and closer to Coomera Island.  Taking that course constituted a substantial departure from the standard of care required by good seamanship.

[126] In assessing contributory negligence I do not view that substantial departure in isolation.  Mr Smith saw the Bayliner outside the navigable channel and failed to slow in circumstances in which great care was required.

[127] The excessive speed of each vessel after each driver saw the other vessel approaching at high speed contributed to the collision.  The failure of each driver to slow when the other vessel came into view contributed significantly to the collision.  The course taken by the Bayliner was a significant cause of the collision.

[128] I consider that it is appropriate to apportion liability at 65 per cent against Mr Balnaves and 35 per cent against Mr Smith and his employer.

Apportionment of liability between defendants in Mr Malone’s proceeding

[129] Notices claiming contribution were issued in Mr Malone’s proceeding.  I apportion liability in those proceedings at 65 per cent against Mr Balnaves and 35 per cent against Mr Smith and his employer.

Limitation issues and applications for extensions of time

[130] In each proceeding Mr Smith and his employer pleaded the two year limitation period in s 396(1) of the Navigation Act 1912 (Cth).  Section 396 relevantly provides:

 

(1)No action shall be maintainable to enforce any claim or lien against a ship or its owners in respect of any damage or loss to another ship, its cargo or freight, or any property on board the ship, or damage for loss of life or personal injuries suffered by any person on board the ship, caused by the fault of the former ship, whether such ship be wholly or partly in fault, or in respect of any salvage services, unless proceedings therein are commenced within 2 years from the date when the damage or loss or injury was caused or the salvage services rendered were terminated.

 

(3) Any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any period mentioned in this section to such an extent and on such conditions as it thinks fit.”

[131] Mr Balnaves and Mr Malone submit that s 396 of the Navigation Act does not apply because the Haines Hunter was a “trading ship” and the Bayliner was a “pleasure craft”, as defined by s 6 of that Act. Section 2(1) of the Navigation Act provides as follows:

 

2 Application of Act

(1)Except in so far as the application of this section is expressly excluded by a provision of this Act, this Act does not apply in relation to:

(a)a trading ship proceeding on a voyage other than an overseas voyage or an interState voyage;

...

 

(d)a pleasure craft;

or in relation to its owner, master or crew.”

[132] In response, Mr Smith and his employer submit that s 2(1) is expressly excluded by s 258, which gives effect to the Collision Regulations, and that “it is inconceivable that s 396 dealing with collisions and picking up the consequences of s 258 does not apply to the collision in the present case.”  In reply, Mr Balnaves and Mr Malone submit that s 258 does not extend the application of s 396 to this collision.

[133] Section 258 gives effect to the Collision Regulations, and applies them, despite s 2, in relation to ships in certain areas, as provided in ss 258(2B)-(2E) (inclusive).  Section 258(2D) is to the effect that the Collision Regulations apply by virtue of s 258 to a ship of the kind referred to in s 2(1) while the ship is on the high seas.  Section 258(2B) is not intended to exclude the operation of a State or Territory law, being a law that gives effect to the Prevention of Collisions Convention, in relation to a ship while it is in one of the following areas:

 

(a) the territorial sea of Australia;

 

(b)the sea on the landward side of the territorial sea; and

 

(c)waters other than waters of the sea.[158]

Queensland legislation gives effect to that Convention by applying the Collision Regulations to, amongst others, all ships connected with Queensland and all ships on Queensland intrastate voyages.[159]

[134] The apparent intent of s 258 is that State and Territory legislation should apply to the ships referred to in s2(1) when they are in the territorial sea of Australia, the sea on the landward side of the territorial sea, and waters other than waters of the sea.[160]

[135] I do not accept that s 258 operates to apply the limitation period in s 396(1) to the collision in these proceedings.  In addressing the regulations governing collisions s 258 does not expressly exclude the application of s 2.[161]  The position on limitation of actions arising from collisions at sea is extremely complex.[162]  However, the better view is that the time limitation in s 396(1) does not apply to the present personal injury actions, and that the limitation periods for those actions are determined by the Limitation of Actions Act 1974 (Qld) s 11, which contains a three year limitation period.[163]

[136] If I had concluded that the two year limitation period applied[164] then it would have been necessary to consider the exercise of the power in s 396(3) to extend time.  For completeness, I shall address that issue.

[137] That provision confers a broad discretion to extend time.  Limitation periods are enacted for sound reasons of public policy.[165]   One therefore starts with the position that the applicant for an extension of time must show good reason in the interests of justice why the policy of the Act should be displaced.[166]  The extension provision in s 396(3) is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  Its purpose is to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced.[167]  Relevant considerations include the degree of blameworthiness on the part of the applicant, the circumstances which caused the delay and whether they were beyond the control of that party, the length of the delay and whether, if the application were granted, justice would be done between the parties.[168]  The absence of specific prejudice may not be sufficient justification to grant an extension.

[138] In this case there was no sworn explanation for the delay, including whether proceedings were not commenced within the two year period based on a belief that the limitation period in s 396(1) did not apply or due to ignorance of that limitation period.  However, each plaintiff had to comply with the pre-action requirements of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”).  On 6 January 2004 Mr Balnaves’ solicitors sent PIPA notices and various reports to Mr Smith and to his employer.[169]  After further correspondence the respondents’ solicitors acknowledged that the PIPA claims were valid and noted that the circumstances giving rise to the claims were the subject of other claims and proceedings.  The respondents’ solicitors anticipated receiving instructions to prepare expert evidence concerning the circumstances of the incident.  In late 2004 there was discussion concerning mediation and the holding of a compulsory conference.  By letter dated 14 December 2004 the respondents’ solicitors indicated a preparedness to dispense with the requirement of a compulsory conference and advised “This will give you more time within which to issue court proceedings”.[170]  Mr Balnaves’ solicitors indicated an intent to issue proceedings prior to 23 February 2005 and on 20 January 2005 the respondents’ solicitors agreed to dispense with the compulsory conference.  The correspondence is consistent with both sides proceeding on the basis that a three year limitation period applied.  If proceedings had been commenced earlier and prior to compliance with the requirements of PIPA then they would have been stayed.  There is no suggestion that there has been any specific prejudice to Mr Smith and his employer by the delay in commencing proceedings until the requirements of PIPA were complied with.  Mr Smith and his employer were on notice of the intent to commence proceedings and there is no suggestion that the delay in commencing those proceedings until 22 February 2005 was of such a length that recollections deteriorated and that it was not possible for the parties to have a fair trial.

[139] The fact that Mr Balnaves admitted an offence is not a good reason to refuse an extension of time.[171]

[140] If the two year limitation period under s 396(1) applied, then I would have exercised the discretion under s 396(3) in favour of Mr Balnaves. 

[141] I turn to consider the exercise of the discretion to extend time in Mr Malone’s action against Mr Smith and his employer.  Similar issues arise in this context.  The notice of claim pursuant to the provisions of PIPA was sent on 17 October 2003.[172]  On 15 January 2004 the respondents’ solicitors advised that the notice was deemed compliant.  The same discretionary considerations arise in this context as arise in relation to the extension of time in relation to Mr Balnaves.  Notice of the claim was given within the two year period.  Compliance with PIPA was necessary.  If the proceedings had been instituted by Mr Malone prior to compliance with those provisions, his action would have been stayed.  Alternatively, he would have been granted an extension of time within which to commence proceedings.  No prejudice to the first and second defendants is alleged.  The delay in commencing proceedings did not give rise to an injustice or an inability to conduct a fair trial.

[142] Mr Malone’s action against Mr Balnaves is not subject to the limitation provisions in s 396(1), which relevantly applies to claims against a ship or its owner for damages for personal injuries suffered by a person on board another ship.  However, the fact that his claim against Mr Balnaves is not caught by s 396 is not a sufficient reason to refuse an extension of time under s 396(3) in relation to his action against Mr Smith and Mr Smith’s employer.  In circumstances in which the claimants were required to comply with the pre-action requirements of PIPA and in which the legal representatives for Mr Smith and his employer wished to continue their investigations into the circumstances of the accident, it was reasonable for Mr Malone to delay commencing proceedings until 10 August 2005.  The fact that he has a good claim against Mr Balnaves does not mean that it is in the interests of justice to refuse to grant an extension of time to bring an action against Mr Smith and Mr Smith’s employer, against whom he also has a good claim, being a claim about which they were placed on notice within the limitation period.

[143] Had s 396(1) applied to Mr Malone’s claim against Mr Smith and his employer, I would have granted an extension of time in the exercise of the discretionary power conferred in s 396(3). 

Conclusion

[144] The collision was caused by the negligence of Mr Balnaves and the negligence of Mr Smith.  The second defendant in each proceeding is vicariously liable for the negligence of Mr Smith.

[145] The trial was to determine issues of liability only. 

[146] In Mr Balnaves’ action there will be judgment for damages to be assessed, and the terms of the judgment should reflect my finding of contributory negligence against him to the extent of 65 per cent.

[147] In Mr Malone’s action there will be judgment for damages to be assessed against Mr Smith and his employer and also against Mr Balnaves.  The terms of the judgment should also reflect my apportionment of liability of 65 per cent against Mr Balnaves and 35 per cent against the first and second defendants.

[148] The solicitors for the plaintiffs in each proceeding are directed to submit draft minutes of order within seven days.  If the parties do not agree on the form of orders to be made, I will receive or hear submissions.

Footnotes

[1] Exhibit 2.

[2] Exhibit 32.

[3] Particularly exhibit 4, tab 22.

[4] Including exhibits 41 and 42.

[5] A knot is one nautical mile per hour, and equates to 1.852 kilometres per hour or about 1.151 miles per hour. Witnesses variously estimated speeds and distances in knots, miles per hour, metres and yards. References to their evidence are in the units they used. The approximate speed of the Haines Hunter of 30 knots is 56 kph, and in ten seconds more than 150 metres would be covered by a vessel travelling at that speed.

[6] Exhibit 13, p 4. The speed limit for vessels of eight metres and over was already 6 knots.

[7] Ibid.

[8] See South Sydney Council v Walsh (2003) 38 MVR 437 at 440 – 441 at [24]-[31] for an example of a case in which it was negligent to drive at a speed which was substantially less than the speed limit.

[9] T 2-42 ll 45-49; T 2-44 ll 1-20.

[10] T 2-82 ll 17-19.

[11] T 3-39 ll 40-60, cf T 2-82 l 55.

[12] T 2-85 ll 31-32.

[13] T 2-88 l 8.

[14] T 4-58 ll 50-51.

[15] T 4-65 l 54.

[16] T 4-65 l 59 to 4-66 l 1.

[17] Exhibit 6, tabs 27-30.

[18] Exhibit 18, report of Mr Lyons, p 1.

[19] Depicted in exhibit 6, tab 28

[20] Exhibit 18, tab 34 para 15.

[21] Exhibit 9.

[22] Exhibit 11, Transcript of Proceedings 8/12/05 p 2 ll 45-55.

[23] T 1-38 ll 1-5.

[24] T 1-38 ll 44-45.

[25] T 1-39 ll 1-10.

[26] T 1-39 l 40. He also gave estimates of 2-3 mph (T 1-39 ll 41-42) and 2 knots (T 1-79 l 55) in this regard.

[27] T 1-41.

[28] T 1-42.

[29] T 1-43 ll 1-5.

[30] T 1-96 l 55; see also T 2-16 l 55 to 2-17 l 1.

[31] T 1-51 to 1-52, and see exhibit 8.

[32] T 1-43.

[33] T 1-60.

[34] T 2-14 l 40.

[35] T 1-49.

[36] T 1-65 l 30.

[37] T 1-65 1 50.

[38] T 1-75 l 10.

[39] T 1-75 l 45.

[40] T 1-77 ll 38-48.

[41] T 1-79 l 25.

[42] T 1-79 l 28.

[43] T 1-40 ll 28-32.

[44] T 1-80 ll 20-45.

[45] T 1-88 l 30.

[46] T 2-6 l 50.

[47] T 2-7 ll 45-55.

[48] T 2-19.

[49] T 1-40 l 12.

[50] T 2-18 l 38.

[51] T 1-40 to T 1-41.

[52] T 2-19 ll 1-5.

[53] T 4-55.

[54] T 4-56 l 15.

[55] T 4-57 l 18.

[56] T 4-80 l 35.

[57] T 4-57 l 28.

[58] T 4-56 l 55 to 4-57 l 7.

[59] T 4-69 ll 39-55; exhibit 37B, p 3.

[60] See at T 4-71.

[61] Exhibit 37B p 3.

[62] T 4-59 l 1.

[63] T 4-58 l 55.

[64] T 4-67 l 1.

[65] Exhibit 37B, p 3.

[66] T 4-75 l 45.

[67] Exhibit 38, p 5.

[68] Exhibit 37A.

[69] T 2-85 l 5.

[70] T 2-85 l 27.

[71] T 2-85 l 50.

[72] T 2-86 l 9 and l 18.

[73] T 3-27 l 10-20; 3-27 l 43. And see Mr Smith’s markings on exhibit 23.

[74] T 3-26 l 40.

[75] T 3-78 ll 30-38.

[76] T 3-45 l 47.

[77] T 3-19 l 45; 3-43.

[78] T 3-78 l 55.

[79] T 2-86 l 30.

[80] T 2-87 l 10.

[81] T 2-88 l 7.

[82] T 2-88 l 40-50.

[83] T 3-28 ll 15-55.

[84] T 3-29 l 20.

[85] T 3-29.

[86] T 3-31 l 10.

[87] T 3-31.

[88] T 3-32.

[89] T 3-29 l 10-15.

[90] Ibid.

[91] T 3-36 ll 40-55.

[92] T 3-48 to 3-50.

[93] T 3-34 l 42.

[94] T 3-30 l 20.

[95] T 3-49 ll 15-20.

[96] T 3-53; exhibit 23.

[97] T 3-65 ll 40-58.

[98] T 3-66 l 38; T 3-74 l 58 to 3-75 l 4.

[99] T 3-35 l 45.

[100] T 3-38 ll 15-18.

[101] T 3-75.

[102] T 4-12 l 52.

[103] T 4-13 l 28.

[104] T 4-13 ll 43-48.

[105] T 4-14 l 10.

[106] T 4-14 ll 26-30.

[107] T 4-17 ll 21-25.

[108] T 4-21 l 17.

[109] Exhibit 34, p 1.

[110] T 4-30 ll 1-10.

[111] T 4-16 l 25.

[112] T 4-45 l 20.

[113] T 4-34 ll 35-50.

[114] T 4-34 l 35.

[115] T 4-35 l 38.

[116] T 4-35 l 48.

[117] T 4-36 to T 4-38.

[118] In submissions the term “parallax” was used to refer to the suggested apparent movement of the Bayliner towards the left bank.

[119] T 4-36 ll 17-20.

[120] T 4-38 l 23.

[121] T 4-41 l 19; 4-38 l 43.

[122] T 4-42 l 5.

[123] Mr Malone gave his evidence by video link from the United Kingdom and was not asked to plot courses and locations on charts, and the sketch which he made in March 2002 did not purport to precisely plot courses.

[124] Exhibit 33.

[125] The sandy or muddy bank on the northern side at the time of the collision would have been wider than appears in the photograph which is exhibit 4, tab 21 or in the television news footage, exhibit 32.

[126]As marked with the number 2 on exhibit 2 by Mr Balnaves.

[127] Exhibit 8.

[128] Cf T 4-84 l 45 to 4-85 l 3.

[129] Exhibit 37A.

[130] Amended statement of claim para 3(c).

[131] Exhibit 28, p 2.

[132] Exhibit 34, p 2.

[133] T 4-45 l 15.

[134] T 4-25 l 50.

[135] Exhibit 16, tab 35 paras 9 and 12; T 2-40 l 10.

[136] T 2-38 l 50.

[137] T 2-38 l 54 to 2-39 l 10.

[138] T 2-39 ll 45-58.

[139] Exhibit 17, tab 33 para 16.

[140] T 2-42 ll 50-58.

[141] T 2-43 ll 1-5.

[142] Cf Fox v Percy (2003) 214 CLR 118 at 167 per Callinan J who criticised the undiscriminating tender of unreliable evidence that is of slight probative value.

[143] Mr Balnaves’ submissions para 2.4.10.

[144] In the vicinity of the pen marking 1 on exhibit 2.

[145] See exhibits 2, 23, 33.

[146] See oral submissions T 5-18 to 5-19.

[147] T 5-19 l 32.

[148] Convention on the International Regulations for Preventing Collisions at Sea 1972. The Collision Regulations appear in Schedule 3 of the Navigation Act 1912 (Cth), and also are incorporated in State legislation.

[149] Exhibit 17, tab 33 para 15.

[150] Cf Mr Balnaves’ submissions para 5.1 and 5.2, citing Manning v McPhillip [1995] 22 MVR 423 and The Bywell Castle (1879) 4 PD 219.

[151] Davies and Dickie Shipping Law 3rd ed Thomson Law Book Company at 428-429.

[152] Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952.

[153] Davies and Dickie Shipping Law 3rd ed Thomson Law Book Company at 427.

[154] Ibid at p 429.

[155] Pennington v Norris (1956) 96 CLR 10 at 16.

[156] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-3; Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25.

[157] Liverpool City Council v Millett (2004) 43 MVR 193 at 223 [144].

[158] Navigation Act s 258(2C).

[159] TOMS Act, s 11; Transport Operations (Marine Safety) Regulation 1995, ss 93, 94.

[160] For a discussion by the way in which Commonwealth, State and Territory provisions interlock see Davies and Dickie (supra) pp 414 to 418.

[161] Cf the express exclusion of s 2 in relation to the salvage provisions of Part VII, Division 3.

[162] Davies and Dickie (supra) at pp 442 to 449; and see the Australian response to a questionnaire on time-barred actions that is reproduced in (1993) 9 MLAANZ Journal 63.

[163] Davies and Dickie (supra) at pp 442-449.

[164] It was accepted that the limitation period applied not only to the owner of the ship but also the master or operator, Mr Smith, by virtue of s 6(4).

[165] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-554; McKinnon v Huxley [2003] NSWSC 1221 at [14] to [15].

[166] Brisbane South Regional Health Authority v Taylor (supra) at 554; McKinnon v Huxley (supra) at [16].

[167] Brisbane South Regional Health Authority v Taylor (supra) at 553.

[168] The "Albany" and "Marie Josaine" [1983] 2 Lloyd’s Rep 195 at 196-197; McKinnon v Huxley (supra) at [16] to [17].

[169] Exhibits 19 and 20.

[170] Exhibit 22.

[171] Cf submissions on behalf of the first and second defendants para 57.

[172] Exhibit 36.

Close

Editorial Notes

  • Published Case Name:

    Balnaves v Smith & Anor; Malone v Smith & Ors

  • Shortened Case Name:

    Balnaves v Smith

  • Reported Citation:

    [2011] 2 Qd R 17

  • MNC:

    [2010] QSC 39

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    23 Feb 2010

Litigation History

Event Citation or File Date Notes
Primary Judgment [2011] 2 Qd R 17 23 Feb 2010 -

Appeal Status

No Status