Guitarist loses damages appeal after career-ending injury

By Resolve Editor Kate Tilley

The lead guitarist of rock band INXS has lost a NSW Appeal Court action for compensation for a boating incident that severed a finger on his left hand.

Tim Farriss, a founding member of the band, hired a motor cruiser, Omega, in January 2015 to cruise Pittwater, north of Sydney, on the Australia Day long weekend with his wife, Bethany. The boat was chartered from Church Point Charters and Shipping Pty Ltd and owned by John William Axford and Jill Mary Axford.

At the NSW Supreme Court trial, Justice Cavanagh found there was no dispute on three simple issues, but other matters were contentious.

Mr Farriss was injured when the fingers of his left hand got jammed between the anchor chain and the windlass wheel. He had surgery to reattach the finger but the resulting disability was such that he could no longer perform in a band and, in particular, not perform as part of INXS again.

Justice Cavanagh had to determine how the accident occurred, whether Mr Farriss’s injuries were caused by negligence by the boat owners and charter company, whether there was contributory negligence, whether the Competition and Consumer Act 2010 was breached and what Mr Farriss was entitled to for pain and suffering and economic loss.

Failure to warn

Mr Farriss argued there was a failure to instruct, warn, inform and induct him on the features of the boat including risks and dangers associated with the anchor system; and a failure to repair, maintain, replace or redesign components of the system.

However, Justice Cavanagh rejected all the arguments, saying Mr Farriss had given conflicting reports on how the accident occurred. He decided the guitarist had inadvertently stepped on the buttons that activated the winch while his left hand was still near the mechanism.

He found no negligence or breach of duty by the owners or the charter company. Mr Farriss and his company Montana Pty Ltd had claimed $1.2 million for lost earnings, but Justice Cavanagh assessed economic losses at $622,000 for Mr Farriss and $40,000 for Montana, had their arguments been successful.

Mr Farriss said he would have continued to derive an income performing with INXS on concert tours and from creating new songs.

He agreed the band had been more popular when its lead singer Michael Hutchence was still alive and that his brother, Jon Farriss, had announced during the last concert tour in 2012 that the band would not perform again. It would have had to  
“engage a new lead singer as the band had dispensed with the services of the person retained as lead singer as at 2012”.

Comeback tour

Justice Cavanagh said Mr Farriss had argued that his brother’s statement “was not reflective of his thinking or the thinking of the band generally” and it was “not uncommon for bands with the longevity and experience of INXS to announce retirement and reappear in the years following”.

Mr Farriss said he and other band members, between 2012 and 2015, had been negotiating with “a high-profile, well-known international singer to perform with the band on an ongoing basis” and 2017 would have been “a particularly significant date for a comeback tour”. Former lead singer Michael Hutchence had died 20 years earlier, in 1997.
 
Appeal Court Justices Meagher, Mitchelmore and Simpson dismissed the appeal, finding the respondents could rely on the absence, over time, of any prior incident with Omega’s anchor, the absence of any recommendations by repairers who had inspected the vessel, and that no additional safeguards were required to prevent such an incident.

They said there was no evidence Mr Farriss would not have chartered the boat had he known about the anchor chain’s propensity to kink.

The judges said Mr Farriss could not “reagitate” a claim on appeal of a breach of the Australian consumer law because that had been abandoned at the initial trial. Even if it were reagitated, the claim would fail because the fact the anchor did not work precisely as intended did not mean the boat was not reasonably fit for Mr Farriss’s purpose in chartering it.

Risk evaluation

The appeal court judgement said there was evidence Omega had been routinely surveyed since the owners purchased it in 1992. The winch manufacturer conducted a major service in 2013 and made no recommendations for modifications. In December 2012, a risk evaluation for insurance purposes assessed the quality of all the boat’s mechanics, including the winch mechanism, and found it was in good condition.

Music publication Tone Deaf reported that Mr Farriss was forced to retire after the incident and was “unsurprisingly depressed”.

Rolling Stone magazine quoted Mr Farriss saying: “I find my reattached ring finger to be an annoyance and unsightly. I have considered having it amputated. I am no longer able to play guitar other than a few beginner-level chords.”

Farriss v Axford [2023] NSWCA 255 (26 October 2023)

Farriss v Axford (No 3) [2022] NSWSC 20 (28 January 2022)