Balnaves v Smith & Anor; Malone v Smith & Ors [2010] QSC 39


In a recent decision of the Supreme Court of Queensland, the Court overruled ancient maritime rules governing apportionment of liability. Two boats collided while travelling in opposite directions on the Coomera River in South East Queensland. Mr Balnaves and his passenger Mr Malone were travelling upstream in a Bayliner vessel, while Mr Smith was travelling downstream as the sole occupant of a Haynes Hunter speedboat. The river conditions at the time of the accident were unusually low and required careful navigation.

Both Mr Balnaves and Mr Malone commenced actions against Mr Smith and his employer in separate proceedings. The case considered the issue of apportionment of liability for the negligent acts of each helmsman.

Key points

  • the determinative factual issue of this case was where and why the collisions occurred
  • the Court accepted eye witness accounts of the accident when looking to determine the speed and course of each vessel and the location of the collision
  • advanced at the hearing was the issue of apportionment of liability for the negligent acts of each helmsman.


Liability was apportioned at 65 per cent against Mr Belnaves and 35 per cent against Mr Smith and his employer.

Interpreting the Law Reform Act 1995 (Qld) to apply where the Navigation Act 1912 (Cth) is silent, the Court held in this case that apportionment will be determined in regard to each helmsman’s contributory fault where two ships collide.

The Legislation

Traditionally, when two boats are involved in a collision, liability is split equally between them. In this case, this ancient maritime rules was the subject of scrutiny, with the Court considering if the Law Reform Act 1995 (Qld) repealed the Supreme Court Act 1995 (Qld) s 247. This provision reads:

“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.”

The Court accepted that the section overcame the variance between the rules in force at common law and those in admiralty. Prior to the enactment of this section, courts of common law would have precluded any right to recover by reason of contributory negligence, while the admiralty courts would have permitted recovery.

The provisions of the Law Reform Act were read consistently with the Navigation Act 1912 so as to apportion liability depending on fault of the helmsmen. The Court held that while the Supreme Court Act removes contributory negligence as an absolute defence, it should be read narrowly and does not preclude the engagement of the Law Reform Act where the Navigation Act is silent. The Court dismissed the notion that where the Navigation Act does not apply the general maritime law 50/50 apportionment rule still governs, no matter what the respective degrees of fault.

Assessment of contributory negligence

In apportioning liability, the Court applied the well-established principles with regard to the departure of the standard of care of the reasonable person and the importance of the acts of the parties in causing the damage.

That Mr Balnaves failed to place himself in a safe position in the channel constituted a substantial departure from the standard of care of good seamanship. While the high speed of each vessel and the failure to slow on seeing the other contributed heavily to the collision, the course taken by the Bayliner was the significant cause of the collision.

The negligence of Mr Smith in failing to proceed at a safe speed, failing to take corrective action and failing to slow when the situation demanded it resulted in a finding of liability against him an his employer through vicarious liability.

Liability was apportioned at 65 per cent against Mr Belnaves and 35 per cent against Mr Smith and his employer.