Category Archives for Boating Accidents

Man vs machine: Snorkeler run over by boat uses GPS to prove his case


Ashley tulley

chief commercial officer

It is imperative that injured parties source credible and impartial evidence to confirm their story.


If photo or video evidence isn’t readily available, think outside the box.

Picture this: It’s a perfect, warm day. You take your boat for a drive and then head out to a popular swimming and fishing spot. You jump in the water with other swimmers and divers, ready to do some spearfishing. With your snorkel on and spear in hand, you look down for some fish. You’re bobbing in the water, waiting…waiting…

It sounds pretty relaxing.

Unfortunately, while doing precisely that, Jacques* was involved in a serious boating accident which changed his life forever. He suffered severe injuries and brought a claim for compensation.[1]

Sadly, his struggle continued when the driver of the boat argued that Jacques was to blame.

Jacques needed evidence to back up his case. Thankfully, he found a unique type of proof that saved the day.

Jacques Story.

The accident

It was a beautiful and sunny morning when Jacques went out on his boat with his mate, Andrew. The pair headed out early and did some snorkelling off Moreton Island, before driving the boat to a new spot for some swimming and spearfishing.

The new spot was a popular fishing and diving area, and there was a large group of tinnies and divers in the area.

Andrew went swimming first, while Jacques manned the boat. While Andrew was in the water, Jacques put a dive flag in a holder on the side of his boat, to alert people nearby that someone was in the water.

Andrew hopped out of the water onto the boat, and Jacques jumped in to do some spearfishing. He took his speargun, which was attached by string to a hard plastic orange dive float. The orange dive float sat on top of the water, to signal that he was in the water nearby.

Jacques was only in the water for about 8 minutes when the accident occurred. He was floating in the water – snorkel on, face down – waiting for fish to appear. His head was bobbing at the surface, not far from his dive float.

Quite suddenly, a boat appeared in the distance. It was heading towards Jacques, and it was moving fast.

Andrew spotted the other boat and desperately tried to attract the attention of the people on board by yelling and waving his arms. Jacques was still in the water and hadn’t noticed the boat.

The boat was not slowing down. In fact, it was planing (moving on top of the water) due to its high speed. The driver of the boat appeared to notice Jacques’ dive float and veered slightly, but it wasn't enough.

BANG. The boat collided with Jacques.

Jacques injuries were horrific...

His injuries included:

  • Rib fractures
  • Collapsed lung
  • Bruised heart
  • Lacerated diaphragm
  • Leg fractures (including shin bone, calf bone and thigh bone)
  • Foot fractures

As a complication, Jacques suffered a stroke resulting in dysphasia (a language disorder where speech and comprehension are affected).

He struggled to work and go about his daily activities. Jacques life changed forever.

Who was at fault?

The driver of the speeding boat?

Jacques brought a personal injury claim against the driver to compensate him for his injuries.

He claimed that the driver was negligent, by not driving safely in an area that was clearly being used by divers and other recreational boats.

Jacques?

The driver argued that Jacques was negligent, by not looking out for his safety and swimming too far away from the boat that Andrew was manning.

Andrew?

The driver also argued that Andrew was negligent, by not looking out for Jacques’ safety.

The Issue

Was Jacques still in the swimming area? Did the driver drive through the swimming area? Was Jacques too far away from his boat? Did Andrew keep the boat close enough to Jacques? At What speed was the driver travelling? Did the driver take evasive action?

The questions all revolved around distance and speed, and the answers to these questions could make or break each party’s case.

How did Jacques prove the speeding boats was at fault?

Several witnesses came forward and offered their version of events. It quickly became apparent that many witnesses gave inaccurate estimates of distances, which is understandable.

Estimating the changing distances between moving people and objects is not an easy thing to do; and the water current, boat speeds and swimming speeds created a confusing scene.

Fortunately, one type of evidence was found that was very reliable.

Both Jacques’ boat and the other driver’s boat had GPS’s (global position systems), which recorded the paths of the boats.

A software engineer was able to download the GPS data and find out exactly what happened.

The GPS evidence, combined with witness evidence to fill in the gaps, helped the Court decide who was to blame.

The Court noted:

gavel

Judge 

“Although a number of the witnesses described…the approximate point of impact…the plotting of the GPS data gives a more precise general area of the collision.”

The Decision

Who was negligent?

  • The driver of the speeding boat
  • Jacques
  • Andrew

The driver of the speeding boat...

The Court found the driver was negligent because he:

  • should have known that the area was a popular diving spot and drove through it;
  • saw the dive float, but did not take enough action to avoid the diver;
  • mistook the dive float for a crab pot, which was unreasonable;
  • failed to abide by the speed limit.

Jacques

The Court found that Jacques was not negligent, because he:

  • was in a known diving spot;
  • took precautions against the risk of harm (the dive float and dive flag).

Andrew

The Court found that Andrew was not negligent, because he:

  • did not owe a duty of care to Jacques (Jacques did ask Andrew to supervise him);
  • tried to stop the accident anyway (by waving his arms and yelling).

Jacques reminds us to think outside the box when it comes to evidence collection

With technology growing faster than ever, it’s important to use it to our advantage.

The GPS evidence clarified what really happened, and helped Jacques succeed in his claim. If the GPS evidence wasn’t found, the Court would have had to rely on the dodgy witness evidence (which likely would have led to unfortunate result for Jacques).

Finding credible sources of evidence is essential to the success of a personal injury claim. The Courts weight evidence based on the likelihood it accurately tells the story.

Hence, plaintiffs frequently use video and photo evidence to prove their point.

Evidence can be hiding in all sorts of machines and technology. Jacques (and his lawyers) were smart enough to consider new types of independent and impartial evidence sources.

And as a result, they have paved the way for the use of GPS in cases such as these.


[1] Du Pradal & Anor v Petchell [2014] QSC 261

* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Charter Boat, What Charter Boat?

She was a 22 year old with the world at her feet. He was meant to be in control as the captain of a party boat. Little did they know that their paths would cross in the most horrific of circumstances.

the facts

On a beautiful summer’s day in 2009, Nikki Bannister decided to head out for a day of boating on the Broadwater with her friends in their 3 metre aluminium dingy. 

They were anchored in the main channel, fishing, when suddenly a massive 17.3 metre charter boat headed straight towards them. They tried to draw attention to the charter boat by waving and screaming to no avail. The trio had no choice but to leap into the water as the charter boat drove directly into them, running Ms Bannister over.

While Ms Bannister fought the wrath of the charter boat, captain, owner, and operator of the ship, Dennis Healey, enjoyed topless entertainment on the lower deck. His failure to operate the boat left Ms Bannister in hospital. She suffered numerous spinal fractures and a haematoma. 

Not only was Ms Bannister physically injured, she also suffered from psychological injuries as a result of the accident and was unable to return to work, care for herself and struggled with activities of daily living, facing lifelong pain and restrictions.

The reckless moment Mr Healey picked topless entertainment over control of his boat was the moment that changed Ms Bannister's life. 

the judgement

His Honour Judge Farr SC found that there was negligence. 

gavel

His Honour Judge Farr Sc

“his [Mr Healey's] absence from the helm meant that no one was either manning it or keeping a lookout ahead”

Therefore, Mr Healy was held liable for his negligent conduct. Ms Bannister received over $350,000 in damages for her injuries and suffering. 

consequences

The above case was centered around the amount of money the case was worth and didn’t focus on the legal principles surrounding the accident. However, it is important to note that a boating accident is calculated on the same basis as other personal injury claims in Queensland and takes into consideration a variety of factors including injuries suffered and the effect the accident has on your ability to work and live.   

The good news is, if you’re in a boating accident you can bring a claim, however like other personal injury claims, you could be liable for contributory negligence if you are found to have contributed to your accident.

other boating accidents that can give rise to a claim:

Getting out on the water is a favourite Australian past time, however there are many inherent dangers and risks that are associated with activities like boating.

 Other causes of boat accidents can include:
  • Poor driving
  • Faulty maintenance
  • Freak accidents
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    Negligence of either driver, or driver of the other boat
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    Collisions with other boats
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    Collisions with jetty's, sand banks, or piers
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    Injury from parts of the boat, including propellers
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    Flooding
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    Driving without a licence
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    Boats hitting waves or wakes of other boats

In 2015, NSW alone faced 16 fatalities, 82 serious injuries, and 281 incidents related to boating.

Statistics from ‘Boating Incidents in NSW Statistical Statement 2014 – 2015’, available online 

The important thing to remember is, if you’re injured in a boating accident, there are options for compensation available.

Written by Ashley Tulley | Chief Commercial Officer

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$465,000 awarded to dinghy accident victim

Picture this - you and your mate decide to go a day of fishing at the Gold Coast.

After a day of catching fish for dinner and soaking up the summer sun, you moor the boat and have some beers before catching some shut eye. What a great day.

A great day indeed, until your boat is hit by a speed boat.

That’s what happened to Tim Rigney*. He suffered devastating spinal injuries and his life was changed forever.

The Facts

It was 4 February 1998 when Tim Rigney and Mark Nelson went out for a day of relaxed fishing trip on the Nerang River.

Tim and Mark were work mates, who regularly fished together. After a busy week at work, what better way to blow off some steam?

They spent the day fishing in Mark’s dinghy. At around 10pm they moved the dinghy to their regular mooring point near Sunset Boulevard. They continued fishing and shared a 6 pack of beers and smoked some cannabis.

Neither could recall how much beer they drank, but they thought they went to bed at around 1:30am so they could be refreshed for the drive back to Brisbane in the morning.

At 3:45am, a man by the name of Robert Browne decided to go for an early morning spin around the river on his speedboat with his friend. It was completely dark and the speedboat did not have a headlight.

It was 4:30am and Tim and Mark were sound asleep in the dinghy. All of a sudden, the speedboat hit the dinghy at 46 km/h causing the dinghy to capsize. Both Tim and Mark were thrown out. Tim was trapped under the dinghy, and found he was unable to co-ordinate his limbs to save himself.

He would have drowned, but was luckily rescued by Mark, who dragged him to safety.

Tim sustained horrible spinal injuries including fractures and dislocation of lower vertebrae, fluid in his lungs and was taken to the Gold Coast Hospital, where he was admitted to the Intensive Care Unit. He underwent immediate surgery to his spine. He later suffered Post Traumatic Stress Disorder as a result of this terrifying accident.

How common are these types of accidents?

The Gold Coast is famous for its sprawling coastline, canals and rivers, making it a popular destination for people who enjoy water sports. Unfortunately, these conditions come with a high incidence of boating accidents.

Boating accidents are more common than you may think. In Queensland last year, there were 62 fatalities, 40 hospital admissions and 13 fatalities. These accidents are most often caused by driver negligence, alcohol, reckless driving or equipment failure. All of these factors were present in Tim’s accident.

Who was liable?

You would think that the speed boat would be automatically responsible for causing the accident.

But, it turned out to be more complicated than that. There were a number of issues that arose including:

  • Whether the dinghy moored in a safe position
  • Whether the dinghy was illuminated so other vessels could see it
  • If the dinghy was not illuminated, who was responsible for turning on the light?

Tim sued both the driver of the speed boat, Robert, and his work friend, Mark.

Tim said that the dinghy’s navigation light was on when Tim and Mark went to sleep. He said that if it was not illuminated, it was not his responsibility to turn it on – it was Mark’s job to make sure the light was on because he was the owner and controller of the boat. Tim also said that Mark had moored the boat in an unsafe position on the river.

Mark argued the boat was moored in as safe area. He also said that Tim could have told him if he thought the mooring of the boat was unsafe, given their close relationship.

Tim argued that Robert, the driver of the speedboat, breached his duty to operate his boat in a safe manner, and he was driving carelessly and too fast. Robert denied he was responsible for the accident, because the dinghy was moored in an unsafe area. Robert said that the dinghy was moored part way across the river, but Tim said it was close to the riverbank. Robert said the dinghy was not illuminated, causing the collision.

 

The Independent Witness

Luckily for Tim, a somewhat unexpected witness gave evidence about the circumstances of the accident. Mr Duncan owned a house on the river next to where the dinghy was moored. He looked out the window at 9pm and saw the dinghy moored around 20 metres from the river bank. He could see some activity on the dinghy, and thought there was some kind of light on the boat. Mr Duncan stated that…

...the tinny was not tucked into the shore; it was in a navigable area of the river, where a lot of boats passed, although it was quieter at night.

He looked out the window again at 2am and could see the dinghy had not moved position.

At around 4:30 am, the collision woke him. He ran downstairs, and was able to see the dinghy, the boat, and items strewn across the water.

Mr Duncan confirmed that most boats moored further down the river, but 10% of them moored within the vicinity of his house.

What did the judge find?

The judge found that there were three reasons the accident occurred, being the:

  1. unsafe mooring of the dinghy;
  2. failure of its navigation light; and
  3. excessive speed of the motor boat.

The judge thought that Mark was responsible for the unsafe mooring of the dinghy. He should not have moored it in a position where there was boat traffic. Mark was found to be 50% responsible for the accident.

The judge found that, based on the independent witness’ account, the boat was most likely adequately lit when Tim and Mark went to sleep. He thought it was likely that the navigation light had turned off throughout the night and that the light was not operating when the collision occurred. He decided that no one was responsible for this occurring.

Lastly, the judge found that the other major cause of the accident was the speed of the speedboat. It was the defendant’s case that it was so dark he could not see ahead of him, and the judge decided that this was a reason he should have been proceeding with considerable caution. The judge said that:

The speed at which Mr Browne drove the boat was not reasonable. The Nerang River was not some isolated, little-used stream… there were plenty of boat owners in the area; and there were people regularly fishing from boats in the river… there was every reason to proceed with caution.

The judge found that Tim contributed to his own injuries by failing to ensure that the boat was safely moored. The judge thought he should be found 10% liable.

Tim was awarded a total of $464,586 by the court.


The Consequences

Given that Tim was only found to be 10% liable for the accident, this decision is a positive outcome for people who are involved in a boating accident where they were not the controller of the vessel.

As you can see, it also highlights the importance of obtaining witness evidence. If the independent witness had not provided evidence that the boat was unlit when Tim fell asleep, the judge would have had to rely on the evidence of the involved parties.


* The names and narrative have been altered but the  facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.

Young man’s foot cut off in jet ski accident receives $800,000

The Facts

Being young and care free sometimes has its consequences, as a young 18 year old found out in this case. Nathan Whittington was water skiing with his friends Todd and Scott Smeaton at the Ross River reserve, near Townsville QLD. The three headed out on Todd’s jet-ski, with Ross driving and Nathan spotting. Ross didn’t have a QLD marine license but did have a NSW boating licence. He also held marine insurance with Allianz for the use of the ski. Nathan had been out on a boat two times prior to this day. Apart from this, Nathan had very little boating experience and had never been on a Jet Ski or water skiing. With such limited experience Ross gave Nathan some instructions including to let the driver know if the skier fell off and if the towrope was not in use to pull it so it didn’t get caught in the Jet Ski’s propeller. Off the three went, with Todd skiing behind.

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Todd fell off and as instructed Nathan notified Ross to stop and he leaned forward to take the slack out of the rope. To do so, Nathan had to stand at the back ski. As Ross turned the ski around to collect Todd, they hit the wake of another boat and Nathan fell into the water. His foot became tangled in the rope. Ross, unaware that Nathan had fallen into the water sped off and causing the rope to tighten and cut Nathan’s foot off. Sadly, Nathan’s accident is common. In 2007, Jet Ski represent 20 percent of the number of fatal or serious accidents on QLD waterways.

Nathan brought a claim against the brothers (one the owner and the second the driver) and their insurer for his injuries.

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The Judgement

The brothers initially argued that it was a dangerous recreational activity (a recreational activity where one may be injured) and that injury was an obvious risk. The Court did not accept this as the Judge found that a person in Nathan’s position, riding the Jet Ski was not an activity with a significant risk of harm. The insurer argued they were not liable under the policy because the driver did not have a QLD licence to drive the ski. The policy did have an exclusion clause stating that the policy did not cover accidents where the ski was being used by an unlicensed person. Despite this, the Court found that the Insurance Contracts Act meant that the Insurer could not refuse to pay the insurance claim. This was because it was able to be proven that him being unlicensed was not related to the loss suffered by the Plaintiff. He had previously obtained a NSW boating licence and had ridden the ski hundreds of times. The Insurer argued that had he taken the training course required when obtaining a QLD licence the accident was unlikely to have occurred. The Judge disagreed and said that obtaining a QLD licence would have made no difference given his experience and NSW boating licence. The Insurer was ordered to pay damages of $800,000 with the majority of this being for economic loss and his impairment to his ability to work. 

MCW Legal's Opinion

We agree with the Judge’s interpretation of the legislation in this case. This legislation is in place for these circumstances where an insurer denies paying settlement on technical grounds and was correctly used in this case. Had he not held a NSW boating licence or had experience on a jet ski then the result would have been very different.

The Consequences

There are a number of consequences arising from this case. It highlights that serious accidents on water are more common than people think and it is important to have appropriate insurance. It also highlights that insurers can’t just deny liability on a technicality, which is a win for policy holders. It’s also a reminder that people should be aware of their policies of insurance and know exactly what they are covered for.

Written by Mitch Herlihy | Associate

Woman receives $230,000.00 after suffering life threatening injuries in a boat crash

Facts

Campbell v Woollard [2012] WADC 48 On 17 November 2007, Kate Campbell and some friends decided celebrate the end of exams and the start of summer holidays by attending a school friend’s party. The party was taking place on Luke Woollard’s fathers speed boat. Kate dragged her friend, Louise along. The two were having a ball, drinking wine and beer alongside the boys and soaking up the summer’s sun.  They had all been drinking since 4 pm. The function started at 7 and finished at approximately midnight. After the function, Luke and 2 friends decided to take the speed-boat back home.  They took 5 people with them including Kate. Luke was driving the speed-boat and shortly before 1.00 am, it collided with the pylon of an unlit navigation beacon. The seats Kate and Luke were sitting on were torn from their bearings and the left side of the boat was badly damaged.  Three of the passengers were thrown overboard and the others were flung about inside the boat.  Kate hit face-first into the console in front of her and suffered horrible injuries including a broken ankle, pelvis, vertebrae and jaw, a shattered larynx, torn oesophagus and eight missing teeth. Kate would have died if she didn’t have emergency surgery. Her first 11 days in hospital were spent in intensive care in an induced coma or heavily sedated. After her hospital stay she had a lot of rehabilitation.  She recovered from some of her injuries but still suffers from some physical and psychological disabilities.

Boating Accident Statistics

A boating accident like Kate’s is extremely common. Every year thousands of people are seriously injured or killed in a boating accident, many of which were caused by negligence.  A large majority of boating accidents involve the driver of the boats drinking alcohol. The table below shows the number of boating accidents for the years 2011 to 2015 in Queensland alone. In 2015, the most commonly reported incidents were collisions between ships (28%), collisions with an object (10%), capsizing (11%) and groundings (12%). Out of the 588 marine incidents in 2015, 98 people were injured including 19 who were admitted to hospital and 7 deaths.

The Judgement

Luke was charged and convicted. He was sentenced to a suspended term of imprisonment and ordered to perform 120 hours of community service. Kate said that the collision was Luke’s fault because he drove the speed-boat without keeping a proper lookout and was driving too fast. Luke said that he was too drunk to safely drive the speed-boat and that Kate knew this but still went on the speed-boat knowing the risks.  He said because she knew he was drunk he did not owe her a duty of care and also was not responsible for her injuries. Further, Luke says that Kate was guilty of contributory negligence which means he thinks Kate contributed to her injuries by failing to take responsibility for her own safety.  He says that she knew he was drunk.  He says she turned down other offers of a lift home.  He said she knew it was dark and should have known he was too drunk to drive the speed-boat properly. It is up to Luke to prove that Kate should be held partly responsible for her own actions and injuries.  Likewise it is up to Kate to prove that Luke should be held responsible for causing the accident and her injuries.

The Decision

The Judge considered Luke’s defences of ‘no breach of duty’ and ‘voluntary assumption of risk’.  In doing this he considered other cases relating to a passenger who accepts a lift with a driver known to be seriously drunk. He said:

“The Court must be satisfied that the passenger not only knows, but also accepts, that he or she is to be driven by a driver who is seriously intoxicated (drunk).  So, the passenger must make a decision to travel as a passenger with a drunken driver, who to the knowledge of the passenger has an impaired ability to drive.”

Further, he said that the defence of ‘voluntary assumption of risk’ differs from the ‘no breach of duty’ defence in one important way, namely the passenger must have fully known the risk of what happened and accepted it. He said a person is not liable for harm caused by them to another person if the other person engaged in a dangerous recreational activity and there is an obvious risk of harm when doing that activity.  

Dangerous Recreational Activity (def.): A recreational activity is an activity engaged in for enjoyment, relaxation or leisure.  The term dangerous recreational activity means a recreational activity that involves a significant or obvious risk of harm.

  An obvious risk of harm means a risk that would be obvious to a person even if the chances of it happening are low. There was nothing to indicate to any of the passengers that there was any risk of harm in riding in the speed-boat.  The risk of an object being hit (like the beacon) in the protected waters of the river was very unlikely.  There was nothing to indicate that any great harm could come to anyone even if anything went wrong. It was the Judge’s opinion that the level of risk associated with Luke’s drunkenness was very low. He said...

“None of the passengers were negligent in accepting a ride in what was expected to be a leisurely cruise in a boat over known and basically deserted protected waters.”

The Judge found that Kate was intoxicated to some extent, but in no way did she place herself at risk.  She was alert to the need to take care for her own safety. Therefore he didn’t consider Kate contributed to her own injuries by not taking care for her own safety. Kate’s total award was $229,627.

Expert’s Opinion

The decision of the Court is useful for people who have been injured in an accident who have accepted a lift with a driver known to be seriously drunk. A lot of factors need to be taken into account, for example:

  • How drunk the driver is
  • How drunk the passenger is
  • The passenger’s knowledge of how drunk the driver is
  • The passenger’s appreciation of the driver’s level of impairment and/or intentions
  • The passenger’s other options available instead of accepting a lift with a driver who had been drinking

Just because you accept a lift with a person who is drunk it doesn’t been you are not able to make a claim if you are injured in an accident.

The Consequences

This decision is a positive outcome for people that are involved and injured in an accident when they have accepted a lift with a person who has been drinking.

Written by Chandelle Whitney | Associate

How one simple mistake cost Jess half her compensation

It’s a favourite Australian past time for many, cruising our abundant waterways to marvel at the Australian landscape and wildlife. Usually, cruising our waters goes without a hitch and is a lovely day out for many Australians and tourists. However, the water can be a dangerous place even for the most skilled captains, as Jess and her family soon discovered...

The Facts

(Lormine Pty Limited & Anor -v- Xuereb [2006])

It was a sunny morning in November when Jess and her husband took their three kids on a dolphin watching cruise in Forster, NSW. They were promised the cruise would visit a unique pod of resident dolphins, which reside in the calm ocean waters 10 minutes offshore. Jess and her family boarded the boat. The Captain handed Jess a form and asked her to tick the number of guests in their group and sign at the bottom to waive the operation of its liability surround ‘diving and scuba related activities’. The boat travelled out to the pack of dolphins and moored in what was described as the ‘wave zone’ to allow passengers to snorkel. The captain of the boat invited those not snorkelling to sit on the bow of the boat to view the dolphins whilst he assisted the other passengers with their preparations to enter the water and swim with the dolphins. Whilst Jess was sitting on the bow of the boat with her daughter, a large wave crashed over the bow of the boat. Jess was thrown to the back of the boat and was seriously injured. She suffered:

  • a fracture to her right kneecap;
  • a fracture to her right rib;
  • an injured left hip;
  • an injured right ankle and foot; and
  • ongoing depressive mood.

Consistent pain from her injuries crippled Jess, forcing her to reduce her hours at her job. Eventually, she decided to raise a claim against the boat owner and the captain to replace her lost income and superannuation.

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Jess’ accident is not uncommon. You may be surprised to know that the majority of accidents don’t happen in rough seas – it’s not like what you imagine from the movies. Most reported incidents actually happen on smooth waters (see graph below on marine incidents in QLD).

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The Initial Judgement

There were two contested issues at trial.

  1. Jess signed a waiver upon boarding the boat that the boat owner claimed excluded them from liability.
  2. The trial judge had to determine whether the Captain owed Jess a duty of care

Waiver

The captain and boat owner tried to avoid liability by claiming that Jess signed a waiver stating they were exempted from responsibility for Jess’ decision to move to the front of the boat. Jess argued that the waiver wasn’t fully explained to her and that she thought its purpose was simply for determining passenger numbers. The trial judge agreed with Jess, saying the waiver was…

“So ambiguous both in its overall context and standing alone that I am unable to interpret it as a release of claims for injury stemming from sightseeing”.
 “The waiver was also not appropriately explained to [Jess] and therefore cannot exclude liability”.

Captains Duty of Care

The trial judge then dealt with the claim of negligence. Judge Ashford found that the captain was indeed negligent as he failed to keep a proper look out for waves being that he stopped in the ‘wave zone’. He, therefore, exposed the passengers to a greater risk that the boat would collide with a wave and should have acted accordingly. The trial judge held that: “The defendant should have taken precautions by removing passengers from the bow of the vessel whilst in close proximity to the wave zone and/or removing the vessel from that area”. The judge awarded Jess $171,548 for her lost income, pain and suffering and limited future earning capacity.

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The Appeal

This case was appealed by the boat owners to the Supreme Court. They claimed that the trial judge had awarded Jess too much for her limited future earning capacity. They stated that no evidence was presented to substantiate that Jess lost $100 per week in income as a result of the injuries sustained in the accident. Jess had simply supplied a rounded figure of her gross income each year following the accident, which showed her annual income falling each year. And the appeal judge agreed with the boat owners. Jess had not provided evidence to support her claims. The appeal judge said...

“The trial judge gained no assistance from a schedule of tax returns that detailed business income, expenses and net income but offered no breakdown of expenses; and where the amounts varied without apparent explanation” “Assessments for past and future loss were not substantiated by the tax returns or the evidence. They were nothing more than round figures claimed on the plaintiff's behalf.”

Jess’ compensation was reduced by over 50% to $64,720.

MCW Legal’s Opinion

This case is very interesting as it sees two points drawn from it. Firstly, that waivers do not exclude an organisations duty of care, particularly if:

  1. It isn’t explained properly or fully; and
  2. Its clauses aren’t clear.

This case also presents a clear lesson to claimants – evidence is critical! Jess lost half of her awarded compensation because she failed to provide proof to support her rounded figures. She, therefore, could not show that she lost income as a result of her injuries. By simply providing your mathematical calculations (like the ones outlined in the Future Economic Worksheet available below), Jess may have been able to keep her full compensation.

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You are wondering how the Courts calculate compensation, download this free 'Economic Loss Worksheet'. Discover the simple calculations that will estimate the value of any compensation claim in 10 minutes.

The Consequences

As you can see from this case, the court is willing to make a judgement in favour of claimants who have been injured due to boat operators’ negligence, even if you have signed a waiver to say that you board the boat at your own risk. It also again highlights that evident is paramount. Jess’ case isn’t the first to fall down due to a lack of evidence and it certainly won't be the last. Don't make the same mistake Jess did.

Written by Gemma Corles