In brief - Defendant acted negligently by placing himself in danger

The District Court of NSW recently affirmed that individuals who voluntarily place themselves in a position of peril owe a duty of care to their rescuers; and if they act negligently, they are liable for any loss or damage suffered as a result.

Rescuer injured while assisting seafarer and capsized boat

In the matter of Blackney v Clark [2013] NSWDC 144, the plaintiff brought a claim for damages against the defendant for injuries sustained whilst successfully coming to the rescue of the defendant and his vessel.

On 13 January 2010, the defendant’s dinghy came into trouble off Chinaman’s Beach, south of Evans Head in NSW. The defendant had allowed his vessel to get so close to the breakers that the vessel was dragged into shore, causing his vessel to capsize and leaving him clinging to the bow.

In an attempt to rescue the defendant, the plaintiff left his nearby vessel and swam towards the defendant. The plaintiff hoped to tie a rope to the bow of the defendant’s vessel. Unfortunately, he was unable to do so and was washed onto the beach in an unconscious state, suffering injury.

The plaintiff claimed that the defendant was negligent in placing himself in a position of peril and failing to take proper precautions for his safety or the safety of any potential rescuer.

Rescue reasonably foreseeable for any mariner in danger

In reliance on well established precedents, Neilson DCJ considered that a mariner or seafarer owes a duty to other users of the sea to navigate in such a fashion as to minimize the risk of harm to others. He identified a relevant risk of harm as amongst other things, becoming involved in a shipwreck.

He noted that any shipwreck invites rescue and that the defendant, in permitting his vessel to be overturned and then seeking assistance from the plaintiff’s vessel, elicited rescue. Neilson DCJ stated that rescue is reasonably forseeable by any mariner who puts themself in a position of danger. The defendant chose not to give evidence, so did not advance a case that his navigation was blameless.

Was the rescuer guilty of contributory negligence through foolhardy actions?

The defendant submitted that the procedure undertaken by the plaintiff to recover the vessel was foolhardy. In considering the defendant’s argument, Neilson DCJ adopted the analysis of Willmer LJ in the matter of Ward v T E Hopkins & Son Limited [1959] 3 All ER 225, who stated at [244] that in order for a defendant to succeed in an argument that the rescuer’s actions were foolhardy, it must show that the conduct amounted to a wholly unreasonable disregard for his own safety.

Neilson DCJ held that there was nothing to suggest that the plaintiff’s actions were "misguided or foolhardy" or that the plaintiff acted "unreasonably".

Neilson DCJ determined that the plaintiff had not been guilty of any contributory negligence and was therefore entitled to recover damages in full from the defendant.

Seafarers who act negligently may be liable for any harm sustained by their rescuers

This decision affirms the long standing common law position that individuals who voluntarily place themselves in a position of peril owe a duty of care to their rescuers; and if they act negligently, are liable for loss or damage so suffered.

Mariners and seafarers must appreciate that:

  • if they act negligently they may be liable for any injuries sustained by their rescuers
  • in rescue situations it will be very difficult to rely on a defence of voluntary assumption of risk or contributory negligence, regardless of how the rescue attempt is effected
  • they need liability insurance coverage to meet potential liabilities that they could incur to rescuers.