INXS guitarist, Tim Farriss, claimed damages against a boat owner and charter company following a hand injury which he alleged rendered him unable to play guitar and continue performing or writing for INXS.
In Issue
Two of the main issues canvassed by the Court were:
- Whether Farriss’ injury was caused by a breach of duty by the defendants; and
- What amount, if any, could be claimed for loss of earnings.
The background
On 24 January 2015, INXS guitarist, Tim Farriss, sustained injuries to his left hand in a boating accident. Farriss and his wife had chartered a boat and were allegedly anchoring when he says his left hand became caught between the anchor chain and the gypsy of the boat, resulting in the severing of his left ring finger. Although the severed finger was subsequently reattached, Farriss says it was rendered useless and his injuries left him unable to play guitar and perform or write for INXS. He argued that despite a public announcement by his brother of the band’s retirement in 2012, INXS was likely to have toured again.
Farriss and his company, Montana Productions, pursued a claim for damages against the boat owner and the charter company alleging his injuries were caused by a mechanical failure of the anchoring system.
The decision at trial
In relation to breach of duty, Farriss alleged the boat's anchor system was unsafe and defective and that the defendants failed to properly maintain it or warn him of issues with it. He relied on expert evidence which suggested the incident was caused by the clutch disengaging due to wear from a continuous load, which in turn resulted in the anchor’s gypsy freewheeling outwards.
The defendants disputed Farriss’ account of the incident and argued that the incident could only have occurred if the anchor was being raised and not lowered. They maintained the system was working as intended and that the incident likely occurred as a consequence of Farriss inadvertently standing on a switch on the deck which raised the anchor chain to the gypsy.
Farriss’ version of events differed somewhat between his pleadings, a statement and an affidavit, with the affidavit attempting to clarify matters outlined in his earlier statement. These differing accounts became the focus of Farriss’ cross-examination with the defendants challenging the specific positioning of his hand at the time of the incident and the direction in which the anchor chain moved. The Court did not look favourably on these inconsistencies and formed the view that Farriss was likely positioned on the left side of the anchor system when the chain started to move up and not down. It seems the Court justified this view with reference to contemporaneous notes admitted as evidence which suggested Farriss had informed the Ambulance attendees that his foot had ‘accidentally touched the switch’.
As the Court found against Farriss in terms of the direction in which the anchor was moving, it led to a finding that Farriss’ expert evidence was flawed. It was observed that Farriss’ expert was generally in agreement with the defendants’ expert that if the anchor chain was moving upwards, there was unlikely to have been any mechanical or electrical issue and that the incident would likely have been caused by the switch being stepped on. Accordingly, the Court found against Farriss on the issue of breach of duty.
In terms of how much the claim would have been worth had Farriss been successful, the Court was asked to consider whether the injury had led to Farriss being deprived of significant touring income both on a past and future basis. Farriss led evidence from an accountant who was a specialist in the music industry, who provided input on the resurgence in interest in older bands (drawing analogies with bands such as Aerosmith and Queen) and the potential to derive significant income from streaming services and music platforms. The defendants argued that the Court should accept the public statement by Farriss’ brother in 2012 that the band would never perform again and that a Jones v Dunkel inference ought be drawn as Farriss failed to call any other band members to provide evidence in support of his position. The defendants also argued that even if INXS did tour, the prospects of a successful tour or INXS releasing a new song which would have generated significant income was too remote.
Although the Court considered it to be “puzzling” that Farriss did not call any evidence from other INXS band members on the issue, it refused to draw a Jones v Dunkel inference and highlighted that the defendants could also have called evidence on the issue if they wished. The Court considered it ought to assess the claim for loss of income as a loss of chance that INXS would tour again. In doing so, the Court relied on a number of evidentiary matters and common knowledge, including that INXS was one of Australia’s most famous bands and was recognised worldwide, its songs still played in Australia and other countries, Farriss was not too old to perform, and the potential income from streaming platforms provided an incentive for any band to play. The Court commented that the idea that a band might come out of retirement is hardly novel and accepted that but for Farriss’ injury, INXS would have performed again, with this performance likely a comeback or farewell tour. The Court assessed Farriss’ damages as approximately $600,000 with almost half of this comprising economic loss.
Given the finding as to breach, the claim was dismissed with costs.
Implications for you
This claim serves as a reminder that inconsistencies in lay evidence as to how an incident occurred can result in an expert’s evidence being severely compromised and that a Jones v Dunkel inference will not necessarily be drawn if no independent evidence is called in support of an assertion.
It also highlights that INXS had and still has a large fan base and that there will inevitably be bitter tears shed because the chance of an INXS comeback is now most certainly anchored.
Update 26 October 2023: The NSW Court of Appeal dismissed an appeal and cross-appeal in this matter.
