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Australian Maritime Law

Lloyd's Maritime and Commercial Law Quarterly

Australian Maritime Law

Martin Davies*


1. Balnaves v. Smith 1

Collision—apportionment of liability—limitation period for bringing suit

Two pleasure boats collided on the Coomera River in Queensland, injuring all of those aboard. The plaintiffs, who were driver and passenger of one of the boats, sued the driver of the other boat and his employer. Both actions were brought more than two years after the collision. The defendants claimed that the plaintiff who had been driving the boat was guilty of contributory negligence and that both plaintiffs’ claims were time barred because they had been brought after expiry of the two-year limitation period in the Navigation Act 1912 (Cth), s 396(1). The plaintiff argued that apportionment of liability should be done according to the traditional rule in admiralty proceedings, of equal division of responsibility.
Decision: Neither proceeding was time barred. Apportionment of liability was to be done according to percentage degrees of fault. The plaintiff Balnaves was 65 per cent responsible for the injuries that he and his passenger had suffered.
Held: (1) The Navigation Act 1912 (Cth), s 259 provides that liability for a collision shall be apportioned in proportion to the relative degrees of fault of the two vessels involved. However, that Act applies only to collisions involving ships on international or interstate voyages, so it did not apply in the present case.
(2) The Supreme Court Act 1995 (Qld), s 247 provides that, if two or more ships are found to be at fault in causing a collision, liability shall be apportioned between them according to “the rules hitherto in force in the High Court of Admiralty”. That provision was first enacted in 1876 and was moved into the Supreme Court Act in 1995. The rules in force in the High Court of Admiralty in 1876 required a 50:50 apportionment of liability when both ships were at fault.2 However, Queensland also has general legislation providing for apportionment of liability according to relative degrees of responsibility where both plaintiff and defendant are at fault, first enacted in 1952 and now contained in the Law Reform Act 1995 (Cth), s 10.
(3) Apportionment of liability in the present case was to be done in accordance with relative degrees of responsibility under the Law Reform Act 1995 (Cth), s 10. The effect of the Supreme Court Act 1995 (Qld), s 247 was only to abolish the complete defence of


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