Anchors away! Court finds against INXS guitarist in liability fight
Farriss v Axford – [2023] NSWCA 255
By Chris Sacré
The New South Wales Court of Appeal has held that a boat hire company was not liable in negligence to Mr Tim Farriss, a guitarist and founder member of INXS, who sustained a severe hand injury while attempting to fix a problem with the anchor.
Anchoring and mooring injuries are far too common. This case is a good example of where more could have been done by the operator to prevent the injury but that in itself did not render it liable.
Background
Mr Farriss had hired a boat, the Omega, to cruise around Pittwater with his wife over the Australia Day long weekend in 2015. At some point during their cruise of Pittwater, the Omega’s anchor chain became kinked, causing the anchor to jam. Mr Farriss attempted to free the anchor by removing the kinks in the chain manually. While his hands were on the anchor chain, he inadvertently activated the power to the anchor. His hand was pulled into the mechanism and he suffered a severe injury to his left hand.
Mr Farriss claimed damages for negligence and for failure of the hire company to comply with statutory guarantees under the Australian Consumer Law.
The dispute
The key issues before the court on appeal were:
- whether the hire company had breached their duty of care by failing to install a chain stripper and extend spurling pipes (which may have prevented the kink in the anchor chain);
- whether the hire company had breached their duty of care by failing to warn Mr Farriss of the risks associated with the use of the anchor; and
- whether an abandoned claim that the hire company had breached the Australian Consumer Law could be enlivened.
The decision
The Court agreed that the installation of a chain stripper and extending spurling pipes could have prevented the chain from becoming jammed and therefore lowered the risk that Mr Farriss would attempt to fix the chain and injure himself. The Court found that the likelihood of Mr Farriss injuring himself in this way was low and could have been avoided altogether if he had not activated the power to the anchor while his hand was on the chain.
The Court felt that the proper precautions that the hire company should have taken to ensure the safety of Mr Farriss and his wife while on board their vessel and to discharge their duty of care included:
- installing safety caps on the deck switches; and
- cautioning Mr Farriss to keep his hands clear of the anchor when in operation.
The Court found that the hire company had taken these precautions and were entitled to rely on assessments made after routine services and risk assessments of the anchor, which had never suggested that a chain stripper or extended spurling pipes should be installed.
The Court found that the hire company did not breach their duty of care in failing to provide adequate warnings to Mr Farriss as to the risks associated with the anchor. Mr Farriss presented himself to the hire company as a person with ‘extensive’ experience with boats. His own evidence demonstrated to the Court that he was aware that he should not activate power to the anchor while his hands were near the mechanism. The Court felt that a person with such experience and knowledge would not have been dissuaded from hiring the boat even if they were warned of the potential issues with the anchor.
The abandoned claim under the Australian Consumer Law concerned whether the Omega was fit for purpose as a leisure craft. The Court found that the abandoned claim could not be enlivened on appeal and noted that even if it were, it would still fail. The Court considered that a boat with an anchor chain that had a propensity to kink was still fit for purpose as a leisure craft. To make out an argument that the Omega wasn’t fit for a ‘relaxing leisure cruise’, Mr Farriss would have had to have made it clear that he was so inexperienced in boating that the potential for the anchor chain to kink would have rendered the Omega unfit for purpose.
Key takeaways
- The hire company were under no obligation to take further safety precautions where the anchor had been used previously without incident, had been serviced regularly and had undergone a risk assessment.
- The hire company was entitled to rely on recommendations given during the routine servicing of the Omega and the risk assessment.
- A person who holds themselves out to be an expert when hiring a boat may not be entitled to claim that they were not adequately warned of specific dangers associated with a marine adventure.
Our expert marine insurance team is well placed to assist our insurer clients in the defence of marine liability and personal injury cases such as this. Please reach out to our team.
This article was written with the assistance of Charlotte Young, Paralegal.