Lightfoot v Rockingham Wild Encounters Pty Ltd

[2018] WASCA 205

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Breach of duty of care
4. › Whether navigation through reef passage rather than deeper channel was negligent
5. › Whether foreseeable and not insignificant risk of injury to passengers from encountering large swell or wave
6. › Civil Liability Act 2002 (WA), s 5B
1. Tort
2. › Negligence
3. › Foreseeability of risk
4. › Risk not far-fetched or fanciful
5. › Distinction between common law foreseeability and statutory 'not insignificant' standard
6. › Civil Liability Act 2002 (WA), s 5B(1)(a), (b)
1. Appeal
2. › Standard of appellate review
3. › Appeal from finding of no negligence
4. › Whether correctness standard applies to evaluative conclusion on breach of duty
5. › No appellate restraint or deference applicable

Quick Take

The 'not insignificant' risk threshold under s 5B(1)(b) of the Civil Liability Act 2002 (WA) is more demanding than the common law 'not far-fetched or fanciful' test, albeit not by very much. Where a skipper has traversed a passage multiple times on the same day without incident, the swell is dropping, a proper lookout reveals nothing untoward, and no previous incident is found to have occurred in the passage, the risk of injury from navigating through a reef passage rather than a deeper channel is not both foreseeable and not insignificant. General knowledge that waves may break near reefs as an ordinary feature of coastal navigation does not, without more, establish a not insignificant risk.