In December 2010 the Commonwealth of Australia, through Border Protection Command, was conducting an operation in Australian territorial waters in the vicinity of Christmas Island known as “Operation Resolute” which was directed towards responding to identified maritime threats, including irregular maritime arrivals.

 

Ibrahimi & ors v Commonwealth of Australia (No 9) [2017] NSWSC 1051

 

Part of the operation included carrying out patrols within a designated area off the coast of Christmas Island, which is declared to be a territory under the authority of the Commonwealth. On 14 and 15 December 2010, the area surrounding Christmas Island was beset with monsoonal weather conditions, including gale force winds and large sea swells. These conditions, which were typical of those experienced between about November and February, made it particularly difficult for vessels approaching from the north to safely navigate a path to Christmas Island. On 14 December Suspected Illegal Entry Vessel (“SIEV”) 220, carrying a number of potential irregular immigrants, was intercepted by HMAS Pirie, one of the vessels which was engaged in patrolling. The weather conditions were such that having intercepted and seized SIEV 220, HMAS Pirie was required to keep watch over it and thus did not resume its earlier patrol. In the early hours of 15 December 2010, SIEV 221, a primitive wooden vessel which was unseaworthy by Australian standards and which had sailed from Indonesia carrying a number of potential irregular immigrants, was sighted off the coast of Christmas Island. It was subsequently observed to be in distress and eventually struck the cliff face on the coast of Christmas Island and disintegrated. HMAS Pirie, as well as the Australian Customs vessel Triton, were notified of the fact that SIEV 221 was in distress and assisted in rescue efforts by deploying Rigid Hull Inflatable Boats and Tenders to retrieve survivors. A number of residents of Christmas Island also assisted in the rescue by providing life jackets. Two other vessels, namely the Sea Eye and the Colin Winchester, which would otherwise have been available to the Volunteer Marine Rescue Service operating on Christmas Island, were out of survey at the time. However there was evidence that even if those vessels had been available, they would not, in view of the weather conditions, have been able to be used in any rescue attempt. There was also evidence that even if those vessels had been available to be used, the time that would have taken to launch them and travel to the scene would have been such that neither of them would have reached SIEV 221 before it struck the cliff face.

 

Held:

(i) there is no general test for determining whether, for the purposes of the law of negligence a duty of care is owed. Different cases necessarily raise different issues. Determining whether a duty of care is owed requires an evaluation of the relevant factors which tend to operate in favour, or against, that conclusion. Those factors include any relevant characteristics of the relationship between the parties. Evaluation may also involve a process of analogical reasoning: at [197].

Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 applied.

(ii) control is of fundamental importance in determining whether a duty of care is owed, particularly where the duty is said to be owed by a public authority: at [200]-[201].

Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; [2001] HCA 29; Crimmins v Stevedoring Finance Committee (1999) 200 CLR 1; [1999] HCA 59; Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 referred to.

(iii) the defendant had no control over the risk that a SIEV, if not intercepted, might be shipwrecked on the coast of Christmas Island due to factors such as poor weather, poor navigation or running out of fuel. Further, the defendant did not put the plaintiffs at any risk of harm. In particular, the defendant:

(a) could not, and obviously did not, direct those in charge of the vessel to navigate a particular route to Australia;

(b) did not control the weather;

(c) did not control and, on the evidence, knew nothing at all about, the level of skill of those operating the vessel; and

(d) had no control over the primitive nature of the vessel: at [202].

(iv) the only matter over which the defendant had any relevant control was its response to the risk of harm which had arisen. The defendant did not create that risk, and did not, by its actions, make it worse. In all of the circumstances, the defendant’s lack of control tended against a conclusion that it owed a duty of care to the plaintiffs: at [203]-[204].

Electro Optic Systems Pty Limited v State of New South Wales; West & anor. v State of New South Wales (2014) 180 ACTR 1; [2014] ACTCA 45; Warragamba Winery Pty Limited v State of New South Wales (No. 9) [2012] NSWSC 701 referred to.

(v) those on board SIEV 221 were not vulnerable in the relevant sense. In this context, vulnerability referred to the inability of those on board to protect themselves from the consequences of the defendant’s conduct which was said to have been negligent. Those on board could have protected themselves simply by not undertaking the voyage in the first place. The absence of any relevant vulnerability was a further factor tending against a conclusion that a duty of care was owed: at [206]-[207].

Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33 applied.

(vi) Australian courts have consistently concluded that there is no general duty to rescue. There is no authority which supports the proposition that in a maritime context, a duty of care is imposed upon any person to rescue a stranger in peril: at [219].

Walsh v Zuisei Kaiun K. K (1980) AMC 2788; Moragne v States Marine Lines Inc (1970) AMC 967; Mobil Oil Corp. v Higginbotham (1978) AMC 1059; Bach v Trident Shipping Co. Inc. 708 F. Supp. 776 (ED. La. 1989); Caminiti v Tomlinson Fleet (1981) AMC 201; Stuart v KirklandVeenstra (2009) 237 CLR 215; [2009] HCA 15 considered; Lowns v Woods (1996) Australian Torts Reports 81-376 distinguished.

(vii) the evidence did not support a conclusion that the defendant, by exercising its power to address maritime threats, had assumed any responsibility to ensure the safe arrival of persons who were seeking to enter Australia illegally. There was no duty to rescue imposed on the defendant. The fact that the defendant had engaged in rescue efforts did not mean that it owed a duty of care to those on board: at [222]-[224].

Capital and Counties PLC v Hampshire County Council and ors [1997] 3 WLR 331; State of NSW v Tyszyk [2008] NSWCA 107; Alexandrou v Oxford[1993] 4 All ER 328 referred to.

(viii) the fact that nothing done by the defendant in the course of assisting with the rescue increased the relevant risk of harm was a further factor tending against a conclusion that a duty of care was owed: at [225].

Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540; [2002] HCA 54 referred to.

(ix) the statutory forfeiture of the vessel to the defendant, pursuant to which the defendant became the owner, did not result in the defendant assuming duties and responsibilities analogous to those owed by an occupier of premises to an entrant: at [239].

International Finance Trust Co Limited v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49; Tran v The Commonwealth (2010) 187 FCR 54; [2010] FCAFC 80; Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; [2004] FCA 229; referred to.

(x) the broader underlying policy of the Migration Act 1958 (Cth) was also inconsistent with the existence of the duty of care posited by the plaintiffs: at [240]-[243].

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34; Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 referred to.

(xi) to recognise a common law duty of care in the circumstances, the objective effect of which would be to stimulate the conduct which was sought to be suppressed by the underlying policy of the Migration Act 1958 (Cth), served to highlight the obvious tension between that policy, and the assistance of persons who unlawfully come to Australia and, in doing so, find themselves in distress at sea: at [242]-[243].

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1; CAL No. 14 Pty Limited v Tandara Motor Inn v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 referred to.

(xii) it followed that no duty of care was owed by the defendant to the plaintiffs: at [242].

(xiii) no duty of care was owed by the defendant to the relatives of passengers on board SIEV 221 to avoid foreseeable psychiatric injury to those persons: at [264]-[265].

Tame v State of NSW; Annettes v Australian Stations Pty Limited (2002) 211 CLR 317; [2002] HCA 35; Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW (2010) 241 CLR 60; [2010] HCA 22; Gifford v Strang Patrick Stevedoring Pty Limited (2003) 214 CLR 269; [2003] HCA 33 referred to.

(xiv) the defendant did not owe a duty to rescuers and/or onlookers to avoid foreseeable mental harm to such persons: at [288].

Chapman v Hearse (1961) 106 CLR 112; [1961] HCA 46; Mt Isa Mines v Pusey (1970) 125 CLR 383; [1970] HCA 60; Sheehan v State Rail Authority of NSW; Wicks v State Rail Authority of NSW [2009] NSWCA 261; McDonald v Shoalhaven City Council [2013] NSWCA 81; FAI General Insurance Company Limited v Lucre (2000) 50 NSWLR 261; [2000] NSWCA 346 referred to.

(xv) the defendant did not owe a duty of care to passengers on board the vessel to avoid foreseeable loss of property belonging to those passengers: at [292].

(xvi) there was a risk that a SIEV heading south through territorial waters towards Christmas Island would, if not intercepted, be shipwrecked on the cliffs of Christmas Island resulting in catastrophic loss of life. However that risk was not brought about by any conduct on the part of the defendant and was, in any event, both inherent and obvious, and thus one in respect of which the defendant was not liable: at [307]; [312].

Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 referred to.

(xvii) the risk that a SIEV heading south through territorial waters towards Christmas Island would, if not intercepted as part of the defendant’s interception operation, be shipwrecked on the cliffs of Christmas Island, resulting in catastrophic loss of life, was both foreseeable and not insignificant: at [315]; [317].

(xviii) two other vessels which might otherwise have been available to the Volunteer Marine Rescue Service on Christmas Island were out of survey and thus unavailable to be used in the attempted rescue. However even if they had been available, the evidence established that as a result of the prevailing weather conditions, they could not have been put to use. Moreover, the activity which created the harm in the present case was the travel to Australia, on an unseaworthy vessel, by a group of persons whose aim was to enter Australia illegally in contravention of the Migration Act 1958 (Cth). In these circumstances that activity had no social utility and a reasonable public authority in the position of the defendant would not have taken the precaution of not permitting the two vessels to remain out of survey: at [327]-[329].

(xix) the decision made by the Commanding Officer of the HMAS Pirie, Commander Livingstone, to remain in close proximity to Suspected Illegal Entry Vessel 220 on the afternoon of 14 December 2010 and into the morning of 15 December 2010 was well founded, responsible and a proper discharge of his duties: at [344].

(xx) on the information which was made available to him at about 06:00 on 15 December 2010, Commander Livingstone did not know, nor did he have reason to suspect, that SIEV 221 was in distress: at [352]-[354].

(xxi) the response by HMAS Pirie and Australian Customs vessel Triton to the events which unfolded was not delayed, let alone delayed unreasonably: at [371]; [373].

(xxii) because of the weather conditions at the time, it would have been neither safe nor viable to launch vessels which might otherwise have been available to the Volunteer Marine Rescue Service: at [389]-[390].

(xxiii) the evidence did not support a conclusion that even if the HMAS Pirie had relinquished its position in close proximity to Suspected Illegal Entry Vessel 220 and had undertaken a patrol further to the north of Christmas Island it would have detected SIEV 221 and been able to intercept it: at [391].

(xxiv) towing SIEV 221 away from the cliff face was not a viable option for a number of reasons: at [393].

(xxv) the nature of section 265 of the Navigation Act 1912 (Cth), namely a penal provision prescribing a term of imprisonment, tended against the proposition that it imposed an additional civil liability on the defendant: at [411].

Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; [1995] HCA 24; Stuart v KirklandVeenstra (2009) 237 CLR 215; [2009] HCA 15; Cutler v Wandsworth Stadium Limited [1949] AC 398; Sovar v Henry Lane Pty Limited (1967) 116 CLR 397; [1967] HCA 31; O’Connor v S P Bray Limited (1937) 56 CLR 464; [1937] HCA 18; Gardner v State of Victoria [1999] 2 VR 461; [1999] VSCA 100 referred to.

(xxvi) there was no failure on the part of the Commanding Officers of either HMAS Pirie or Australian Customs Vessel Triton to proceed with all practical speed to the assistance of passengers on board SIEV 221 once they became aware that SIEV 221 was in fact in distress: at [420].

(xxvii) the defendant became the owner of SIEV 221 by virtue of statutory forfeiture but it did not, as a consequence, assume obligations in relation to either the condition of the vessel or the safety of its passengers: at [428]-[429].

(xxviii) the defendant did not, by reason of its ownership of SIEV 221, owe any statutory duty to the plaintiffs derived from the provisions of the Navigation Act 1912 (Cth): at [437]; [441]-[442].

(xxix) the defendant did not “send” SIEV 221 to sea. The phrase “sends any ship to sea” as it appears in s. 208 of the Navigation Act 1912 (Cth) did not mean to “allow any ship to remain at sea”: at [439]-[440].

(xxx) sections 208 and 227B of the Navigation Act 1912 (Cth) are penal provisions, the nature of which tends against the proposition that they ground a cause of action for breach of statutory duty: at [443]

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 referred to.

(xxxi) a court has power to grant leave to amend a pleading so as to include a new cause of action which would otherwise be statute barred, providing the claim based on the new cause of action arises substantially out of the same facts as those involved in the original claim. Whether that test is met is a matter of general impression: at [456].

Brickfield Properties Limited v Newton [1971] 1 WLR 862; McGee v Yeomans [1977] 1 NSWLR 273; State of NSW v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 referred to.

(xxxii) the causes of action brought by the plaintiffs were not statute barred: at [460]; [464].