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Managing indemnity disputes after Highway Hauliers

Managing indemnity disputes after Highway Hauliers

Matthew Maxwell v Highway Hauliers – Exclusion Clause Examples – Exclusion Clauses Australia – Exclusion Clauses Negligence – Insurance Contracts Act – Exclusion Clauses Common Law – Exclusion Clauses Common Law – Exclusion Clauses Australian Contract Law 

Case note: Inglis v Sweeney [2015] WADC 34

This was a judgment of the District Court of Western Australia on a preliminary question of law in a personal injury case.


The issue to be determined was whether an Allianz Sure Cover Plus home insurance policy (Allianz Policy) required Allianz to indemnify its insureds for their liability to the Defendants.


The Plaintiff, Ms Georgia Inglis (Georgia) (aged 10) alleges that she was run over by a ride-on lawnmower operated by the First Defendant, Mr Stephen Sweeney (Stephen) (aged 11).

Georgia is the daughter of Mr Stuart Inglis and Mrs Linda Inglis (Georgia’s parents).  Mr Stuart Inglis owned the ride-on lawnmower.  Georgia lived with her parents.  Georgia’s parents were named insureds under the Allianz Policy.

It is alleged that on 17 October 2004, Mr James Inglis (James) (aged 12), Georgia’s brother, rode the lawnmower from Georgia’s parents’ house, to the Second and Third Defendants’ house.  The Second and Third Defendants are the parents of Stephen.

Stephen ran over Georgia in a game that involved Georgia being towing behind Stephen on the ride-on lawnmower.  Georgia brought claims against the Defendants.  The Defendants brought claims against Mr Stuart Inglis and Georgia’s brother, James (the Third Parties).  The Third Parties brought a claim against Allianz, seeking indemnity under the Allianz Policy.  Allianz refused indemnity on the basis that the claim by the Third Parties fell within the exclusion under the Allianz Policy because Georgia was a person who normally lived with the insureds.

Allianz Policy

Insuring clause

The Allianz Policy contained the following clause relating to cover for injury to other people:

‘… We will cover your legal liability for payment of compensation in respect of:

  • death, bodily injury or illness…’

Exclusion clause

The Allianz Policy contained an exclusion clause which read:

‘What you are not covered for:

1. We will not cover your legal liability for: …

b. injury to any person who normally lives with you, or damage to their property;’


The Court found:

  1. The Defendants’ claim against the Third Parties was a claim ‘in respect of’ bodily injury. Because of this, the Defendants’ claim against the Third Parties fell within the scope of the Allianz Policy.
  2. Georgia was a person who normally lived with the insureds, for the purposes of the exclusion clause.
  3. The relevant act for the purposes of section 54 of the Insurance Contracts Act 1984 (Cth) (ICA) was that at the time the accident occurred, Georgia was living with her parents.  This act could not be regarded as being capable of causing or contributing to a loss.
  4. The exclusion clause did not operate to exclude the Defendants’ claim.  The Defendants’ claim was not a claim for the Third Parties legal liability ‘for… injury to any person who normally lives with you.  Rather, it was for a legal liability to contribute towards the Defendants’ liability to Georgia.
  5. Section 54(1) of the ICA applies in respect of the claim.

Managing indemnity disputes

Parties involved in indemnity disputes like this, may consider making application to the Court for determination of whether section 54(1) of the ICA applies to a claim.

If an indemnity dispute can be decided as a preliminary issue, then one party’s trial costs may be avoided altogether, leaving the remaining parties to the claim to focus on settlement negotiations or, the main issues in dispute.

However, the decision to make application to the Court will depend upon a number of factors, including whether a set of facts can be agreed between the parties.

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Kate DenningManaging indemnity disputes after Highway Hauliers
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QCA extends limitation period in medical negligence case

Wolverson v Todman; Wolverson v Lisle & Hooper & Ors [2015] QCA 74


Ms Julia Wolverson (Wolverson) was treated by a doctor for Multiple Sclerosis (MS). He had four MRI scans which demonstrated a Chiari Type 1 malformation. Wolverson alleges that her doctor failed to diagnose the condition and/or that he misdiagnosed her as having MS. Each of the radiologists reporting on the MRIs failed to identify the malformation.

In 2009, Wolverson sought the opinion of a different doctor. The malformation was ultimately confirmed through further MRIs. The doctor arranged for surgical treatment of the malformation, however, he was unconvinced that it would reverse any of her symptoms. Wolverson reported that a lot of her symptoms had resolved five months after the surgery.

Wolverson failed to commence proceedings within her limitation periods against the doctor and radiologists. She brought applications to extend the limitation periods. The primary judge dismissed the applications and Wolverson appealed the decision to the Queensland Court of Appeal (QCA).


The QCA allowed the application in respect of the extension sought for the proceedings against her doctor, but not for the proceedings against the radiologists.

Limitation of Actions Act 1974 (Qld)

Under the Limitation of Actions Act 1974 (Qld) (the Act) a Court may extend the limitation period in a Queensland personal injury case where it is satisfied:

  1. ‘a material fact of a decisive character’ relating to the claim was not within the means of knowledge of the person until a date after one year before the limitation period expires; and
  2. there is evidence to establish the right of action.

Establishing a right of action

One issue highlighted in the judgment, was the question of what kind of evidence may be taken into account in deciding whether an applicant has ‘evidence to establish a right of action‘ under section 31 of the Act, in a medical negligence case.

A key consideration in Wolverson, was whether the link between Wolverson’s surgery and the relief of her symptoms, was greater than a ‘mere possibility’.

Gotterson JA found that the primary judge should have taken Wolverson’s own reporting into account. She reported that a number of her symptoms had resolved (including left leg weakness, headache, nausea and vomiting) after her decompression surgery. Gotterson JA found that, if uncontradicted at trial, Wolverson’s evidence would be relevant to establishing a causal link.

Instead, the primary judge had preferred the reports of a number of medical experts, who were cautious in expressing their opinions about whether an earlier diagnosis of the malformation could have been of any benefit.

Of note was the following passage extracted in the judgment, from Mahoney JA in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190:

‘Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside the area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable.’

Gotterson JA concluded that the trial judge erred in deciding that Wolverson could not establish a right of action at the level required in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431.

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Kate DenningQCA extends limitation period in medical negligence case
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Injuries from vibration or a sudden jolt

Injuries from vibration or a sudden jolt

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In industries that use heavy equipment, claims sometimes arise out of vibratory forces or sudden jolts. Only a handful of Australian judgments have been delivered over the past decade in these types of cases. Some take away points from those decisions are as follows:

Previous complaints

In a vibration case, the number of complaints made about the equipment or the road surface will be relevant. For instance, in Robertson v Gillman Bros Mining Contractors Pty Ltd [2007] WASCA 36, the trial judge was not satisfied that the level of complaints suggested any wrongdoing by the Defendant because the complaints were ‘no more than would necessarily be expected and unavoidable in’ the harsh environment of underground mining.

Condition of equipment

The extent of any damage caused by a jolt, will be relevant to determining the impact force: Kelly v Humanis Group Limited [2014] WADC 43. In Kellythe Plaintiff’s dump truck was struck by a fully loaded excavator bucket. However, due to the limited damage to the Plaintiff’s dump truck, the Court concluded that the force of the impact was less than the Plaintiff described in his evidence.

For vibration cases, the condition of the seating, mirrors, suspension and any modifications to the equipment may also be taken into account: Russell v Hancock Farm Company Pty Ltd [2013] QDC 129. In Russell, the Court ultimately found for the Plaintiff because of the general condition of the equipment and the system of work and not because of the vibratory forces to which the Plaintiff was exposed.

Pre-start checklists, inspection and maintenance records, diaries, photographs and similar documents, will assist the Court, in determining the condition of the equipment.

Reporting of the incident

As with all personal injury cases, the timing of the Plaintiff’s report about the event will be taken into account. In Kelly, the Plaintiff’s failure to report the incident immediately afterwards (along with the limited damage to the dump truck) was a factor which led to a finding for the Defendant.

Pre-existing degeneration

The Plaintiffs in these cases often have underlying or pre-existing degeneration. The Defendant will bear the burden of proving that the Plaintiff would have suffered symptoms, regardless of the event. However, where the evidence can identify significant degeneration, substantial discounts can be made: Russell v Hancock Farm Company Pty Ltd.

Expert evidence

Expert liability evidence has assisted the Court in the cases mentioned above, in deciding issues such as:

  • the extent of the impact force from a jolt.
  • whether vibration could have caused injury.
  • the period over which an injury through vibratory forces could occur.
  • the condition of the equipment or road surface.


These kinds of cases are often complex and expensive to litigate for the parties. With claims arising in the mining, construction and agricultural industries, claims often involve multiple parties, disputes on liability and quantum, as well as cross claims in contract and tort. The cases that are contested, commonly involve questions about the Plaintiff’s credit and underlying degeneration.

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Kate DenningInjuries from vibration or a sudden jolt
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Time for seeking review of workers’ compensation decision restricted

Case note: Blackwood v Pearce [2015] ICQ 012

Workers Compensation Lawyers for Employers – Workers’ Compensation Regulator – WorkCover Queensland – Workers Compensation Extension – Workers Compensation Application for Review

The Industrial Court of Queensland has considered the power of the Workers’ Compensation Regulator (Regulator) to extend the time for applying for review of a decision under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

Under section 542(2) and (3) of the WCRAthe Regulator may grant a request for an extension to apply for review of a decision by WorkCover or a self-insurer:

  1. if it is satisfied ‘special circumstances’ exist; and
  2. provided the request is made within three months of the applicant receiving the decision.

In Cloncurry Shire Council v Workers’ Compensation Regulatory Authority & Anor [2006] QSC 362, the Supreme Court found that a decision by Q-Comp to grant an extension outside of the three month period, was not invalid.

However, in a decision delivered on 28 April 2015, Martin J, President of the Industrial Court, disagreed with the Supreme Court’s interpretation of section 542.

Martin J found that if a request to extend time is not made within the three month period, the WCRA gives no power to the Regulator to grant an extension.

Martin J adopted a literal interpretation of the legislation.  Until the section is tested again at Supreme Court level, it seems likely that the Regulator (who was the Appellant in the case) will adopt the reasoning of Martin J.  The decision should be welcomed by insurers and employers.

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Kate DenningTime for seeking review of workers’ compensation decision restricted
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Plaintiff needed expert evidence to prove speed caused collision

Case note: Tinworth v Insurance Australia Limited [2015] HCA Trans 87 (17 April 2015)


Mr Steven Tinworth (Tinworth) was injured at Ipswich, Queensland at the time of the January 2011 floods. He was struck by an aquaplaning vehicle as he stood by the side of the road.

Tinworth lost control of his utility in a patch of water on the highway.  Sometime after his accident, a second vehicle aquaplaned off the road in a similar way.  Tinworth went to check on the driver of that vehicle, when yet another vehicle, driven by Mr Michael Haydon (Haydon) hit the water and aquaplaned off the road, striking Tinworth.

There was a sign on the highway about 500m before the accident location which said, ‘Road subject to flooding’.  The speed limit was a 100 km/hr.  Haydon estimated his speed between 80-100 km/hr.

There was about 2cm of water on the road.  Haydon saw the water when he was 50m away from it.  It was not raining (or it was raining lightly) when the collision occurred.

The trial judge dismissed Tinworth’s claim.  Tinworth appealed to the Queensland Court of Appeal (QCA). That appeal was dismissed, with Justice Morrison in dissent.  Tinworth made application for special leave to the High Court of Australia (HCA).

HCA Proceedings

The application for special leave was heard on 17 April 2015.

Tinworth made submissions as follows:

  1. Only in an unusual case could an individual, who is struck by a vehicle leaving the roadway at speed, be unsuccessful.
  2. Haydon should have travelled at a slower speed, given the signage and conditions.
  3. The majority of the QCA departed from the trial judge’s view and concluded that there had been, ‘a strong argument that negligence was evident’.
  4. Adopting a common sense approach, it was open to the Court to find that if Haydon had been travelling at a speed of say 80 km/hr, the collision would have been avoided.

The submissions of Insurance Australia Limited, who defended the case against Haydon, made these points:

  1. There was no useful evidence at trial about the speed at which the water could be safely traversed.
  2. Tinworth failed to prove causation.  He didn’t establish that if Haydon had been travelling slower, he would have seen the water in time to reduce his speed further. He also failed to prove that if Haydon had reduced his speed, he would not have lost control of the vehicle.
  3. The conditions had changed between when Tinworth lost control and when Haydon lost control.  So it would be unreasonable to use Tinworth’s speed (of 80-85 km/hr) as a guide to determine a safe speed of travel for Haydon.
  4. Courts can draw conclusions about distance travelled at a particular speed, however, they cannot determine reaction time.  Reaction time is a matter of expert evidence.
  5. In line with the approach in Rickard v Allianz, a case like this requires expert evidence to establish causation.
  6. Why would it be unreasonable to travel under the speed limit, when there was no rain (or light rain)?

Justice Keane refused the application for special leave with costs, saying the case turned on the application of settled principle to very unusual facts.

This case (and Rickard v Allianz) may be of interest to those managing claims involving an agony of the moment defence and speed.

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Kate DenningPlaintiff needed expert evidence to prove speed caused collision
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NSWSC finds for employer in step case

Case note: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 435

Public Liability Case Law – Public Liability NSW – Public Liability Case Examples – Public Liability Case Studies – Public Liability Cases – Host Employer Responsibilities – Host Employer Duty of Care


The Plaintiff, Ms Vincent (Vincent), was a store merchandiser employed by Counterpoint.

As a merchandiser, her job involved product presentation, including the creation of promotional displays. Merchandisers display products according to a planogram (a plan/diagram prepared to make a product more appealing to customers).

Vincent was arranging products in a Woolworths store according to a planogram, with the use of a safety step.  A male customer was pushing his trolley down the centre of the aisle in which she was working.  He was not looking at Vincent, who was working to his right.  Vincent was on the step and concentrating on her task.  As she stepped down from the safety step, she collided with his shopping trolley.

CCTV footage showed that she looked to either side before stepping down but did not turn her head fully, in either direction, to check for customers.

Issue for determination

Vincent brought separate proceedings against Counterpoint and Woolworths.  Vincent argued that Woolworths and Counterpoint failed to take appropriate precautions against the risk of her suffering injury in the course of her work.

Woolworths accepted that it owed Vincent a duty of care but argued that it was the ‘bare’ duty of an occupier of premises.

Vincent said that Woolworths should have warned of the risk that she could collide with a customer, provided manual assistance or provided a ladder for her to use.


The Supreme Court of New South Wales made these findings:

  1. Woolworths owed visiting merchandisers, ‘a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths’ operations’.
  2. If Vincent had fully turned her head, she would not have stepped down and collided with the trolley.
  3. The safety step was adequate in the circumstances and allowed her to access lower shelves without restriction.
  4. Placing a barricade around Vincent would have created difficulty and inconvenience to her work.
  5. The fact that the risk assessment didn’t identify the potential for collision with customers, did not amount to a breach of duty of care by Woolworths.
  6. It was reasonable for the employer to leave the simple task of stepping onto and off a safety step to the ‘good sense and ordinary care of a mature aged worker’.

The Court dismissed Vincent’s case and found that neither Defendant was negligent.  The case may be of assistance to employers seeking to defend similar cases.  It also clarifies the scope of the duty of care owed to contractors who work within retail stores.

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Kate DenningNSWSC finds for employer in step case
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‘Following car’ 75% to blame for unsafe overtaking manouevre

Case note: Veyt v Stevenson & Anor [2015] QDC 84  

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The Plaintiff, Mr Gilbert Veyt (Veyt), a 51 year old motorcycle rider, was attempting to overtake a truck, driven by the Defendant, Mr Lyle Stevenson (Stevenson).

Attempting to pass Stevenson’s truck, Veyt moved his motorcycle into an overtaking lane.  Ahead of the truck, was a bicycle.  All vehicles were travelling in a southerly direction on Stapylton-Jacobs Well Road, Queensland.

At the same time as Veyt was attempting to overtake Stevenson’s truck, Stevenson moved into the northbound lane, to provide a safe distance between his vehicle and the bicycle.

Veyt, unaware of why Stevenson’s truck had moved into the overtaking lane, attempted to abort his passing manoeuvre.  However, he lost control of his motorcycle and crashed onto the roadway.

Veyt alleged that Stevenson’s truck clipped his arm.  However, he gave inconsistent versions of the accident during his property damage claim.  An entry in the insurer’s records noted that Veyt said it was his motorcycle that actually clipped the back of the truck.

Issue for determination

Veyt alleged that Stevenson was negligent for (among other reasons):

  1. failing to observe the motorcycle was overtaking the truck.
  2. failing to indicate his intention to move into the overtaking lane.
  3. failing to exercise due care and skill in the management and control of the truck.

The insurer for Stevenson, CGU, defended the claim, alleging that Veyt had failed to keep a reasonable distance behind the truck, failed to keep his vehicle under control and failed to have regard for his own safety.


In a judgment handed down in the Southport District Court on 21 April 2015, the Court made these findings of fact:

  1. The truck driver used his indicators, was acting lawfully, was not speeding and checked his mirror before moving into the overtaking lane.  The court also found that he did not leave Veyt insufficient room to overtake and only entered the overtaking lane by a couple of metres.
  2. Veyt was, for the most part, travelling in the truck’s blind spot and failed to observe the truck’s indicators, probably because he was attempting to pass the truck at 90 km/hr.
  3. Stevenson’s truck did not come into contact with Veyt.
  4. Stevenson was only 20 to 30 metres away from Jensen before he activated his indicators.

The Court determined that the actions of both drivers contributed to the accident.  The Court said that Stevenson, as an experienced truck driver, should have known that there was a risk that a vehicle travelling behind, could be in his blind spot.  Because of this, he should have been more careful in checking his rear view mirrors before moving to the right.  Stevenson was also considered negligent for indicating his intention to move into the overtaking lane too late.

Given the findings of fact, the Court found that Veyt was negligent and considered an appropriate distribution of blame would be 25% to Stevenson (Defendant) and 75% to Veyt (Plaintiff).

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Kate Denning‘Following car’ 75% to blame for unsafe overtaking manouevre
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Update | Federal changes to workers’ compensation

Update | Federal changes to workers’ compensation

The Federal parliament introduced the Safety, Rehabilitation and Compensation Legislation Amendment Bill 2014 (Cth) (Bill) on 19 March 2014.

The proposed changes

The Bill proposes a number of changes to the national scheme for workers’ compensation and seeks to:

  • broaden the range of corporations eligible for a licence to self-insure under the Comcare scheme.  It proposes to do this by changing the definition of ‘national employer’ to be a reference to an employer that is required to meet workers’ compensation obligations under the laws of two or more states or territories.
  • remove the need for the minister to declare eligibility to apply for a self-insurance licence.
  • allow an eligible group of corporations, owned by the same holding company, to apply for a group licence.

If passed, the legislation will see approximately 2000 businesses eligible to apply for a licence to self-insure.

Current status

The Bill is currently before the Senate.  Last July, the Senate Education and Employment Legislation Committee (Committee) recommended that the Bill be passed.

Other factors

The Safety, Rehabilitation and Compensation Legislation Amendment (Exit Arrangements) Bill 2015 (Cth) (Exit Arrangements Bill) and the Safety, Rehabilitation and Compensation Amendment (Improving Comcare) Bill 2015 (Cth) (Improving Comcare Bill) have since been introduced.

The Improving Comcare Bill proposes a number of changes relating to entitlements and is currently before the House of Representatives.

The Exit Arrangements Bill proposes financial and other arrangements for Commonwealth authorities seeking to exit the Comcare scheme.  The Exit Arrangements Bill has been refered to the Education and Employment Legislation Committee.  The closing date for submissions is 10 April 2015 and the reporting date is 8 May 2015.

There is broad support for reform of the Comcare scheme and with the pending exit of one of the scheme’s biggest clients, the ACT government, the scheme clearly requires attention.

Next step

Senate debate on the Bill was adjourned last November and is set to proceed on 11 May 2015.

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Kate DenningUpdate | Federal changes to workers’ compensation
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Time extended for workers’ compensation claims

Case note: Blackwood v Toward [2015] ICQ 008

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The Industrial Court of Queensland has handed down a decision which extends the time for making a claim for statutory benefits in Queensland.

In a judgment delivered on 24 March 2015, Martin J, President of the Industrial Court of Queensland found that a decision of the Industrial Relations Commission handed down 14 years ago misinterpreted the legislation and should not be followed.

Under section 131 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) a worker is required to start a claim for statutory benefits within 6 months from the time the ‘entitlement to compensation arises’.

Section 141(1) provides that the ‘entitlement to compensation arises’ on the day the worker is assessed by a doctor.  Martin J determined that the words, ‘assessed by a doctor’ require a doctor assessing a worker to consider not only whether they suffered an injury, but also, whether employment was a ‘significant contributing factor’.

The decision is likely to result in an increase in statutory claims.  It also now exposes insurers to claims for events which arose years earlier.  It will be interesting to see if a legislative amendment follows.

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Kate DenningTime extended for workers’ compensation claims
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No Liability for Volunteers

Case note: Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QDC 029 

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The Plaintiff, Bill Goodhue, was the owner of a vessel called ‘Warlock’ (Vessel), a 12 metre ferro-cement ketch yacht.  He purchased the Vessel in 1983 for $17,500 and lived on it intermittently.

He anchored the Vessel in Marine Stadium, on the Spit, at Southport, Queensland.  In August 2003, he left Australia for New Zealand, having secured the Vessel with a Danforth style anchor. He asked two friends to keep an eye on it while he was overseas.  The Plaintiff was a member of the Volunteer Marine Rescue (the Defendant) and had taped his membership card to the Vessel’s porthole, with the name and mobile number of one of the friends.

On 25 October 2003, the Defendant responded to an emergency call from a nearby vessel, ‘Manuhere’.  The Plaintiff’s Vessel was dragging its anchor.  The volunteers pulled up the anchor (an Admiralty anchor and not a Danforth) and re-anchored the Vessel.  After moving it, the water depth was checked with a depth sounder.  The volunteers checked on the position of the Vessel later in the day and were satisfied it was holding its anchor.  It was seen up to a week later, in the same position.

Over a week after it was moved, the Vessel ran aground, resulting in damage to its interior, electrics and contents.

Issue for determination

The Plaintiff’s case was that Defendant breached its duty of care to him, because the volunteers moved the Vessel without his permission.  He argued that it was re-anchored without sufficient depth and too close to the western shore in Marine Stadium.  The Plaintiff said that his Vessel was simply yawing on its anchor and that the volunteers should have directed the Manuhere to move instead.


The Court made these findings:

  • It was necessary for the volunteers to move the Vessel and if the volunteers had not taken that action, the Vessel would have struck the Manuhere.
  • The scope of the duty of care owed by the Defendant did not extend to contacting the Plaintiff.
  • The Defendant’s duty was limited to re-anchoring the Vessel in a competent manner and it did so.

In the judgment, McGinness DCJ said that a broader duty would have a devastating effect for the operations of the Volunteer Marine Rescue.

The Court also expressed the view that where the law gives immunity to an individual volunteer from civil liability, that immunity should extend to the volunteer organisation for whom they do volunteer work.   However, as the Plaintiff failed to prove that the actions of the volunteers actually caused the Vessel to run aground, this finding did not determine the case.

The Plaintiff’s claim was dismissed with costs.  The decision is of interest because it is the first judgment that has considered whether an organisation using volunteers could be immune from civil liability under Queensland law.

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Kate DenningNo Liability for Volunteers
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.