Plaintiff Suffered Catastrophic Injury While in Sport of Wakeskating
Published 24 Mar 2014
On 18 November 2007, the Plaintiff proceeded to the Chinderah boat ramp where he met the Defendant and various other friends. The Plaintiff and his friends were all very young men. When the Plaintiff arrived the Defendant was navigating the boat to the ramp where the Plaintiff and his friends alighted. The Plaintiff got into the boat with Mr Woodford, as observer and the Defendant as driver. The trio entered the channel.
The Plaintiff put on a life jacket and entered the water to wakeboard. Mr Hume had experienced wakeboarding having undertaken the activity since the age of 16, including on at least 10 occasions in the two years leading up to the accident each time on the Tweed River.
On the day in question, the Plaintiff was being towed by the Defendant when the Plaintiff fell off his wake skate, diving head first into the water and smacking his head on to the sand bottom which resulted in serious spinal injuries and consequent quadriplegia.
THE ISSUES IN THE CASE
1. Precise location of the accident in the river. Campbell J in the Supreme Court considered the case of Jones and ? the evidence given by a mechanical engineer together with the lay evidence given and found that the accident had occurred outside the channel and in shallow water between 1.1 and 1.3 metres in depth. His honour found that such a depth the risk of catastrophic injury to the cervical spine was between high and substantial. His honour was comfortably satisfied on the balance of probabilities that the Plaintiff suffered catastrophic injury when he fell whilst wake skating or close to the sand bar to the west of the channel at Chindrah Bay in shallow water at approximately 1.1 metres in depth.
2. It was a question as to whether the driver of the boat towing a wake skater owed the wake skater duty of care recognised by the law of negligence. His honour considered sections 5B to 5E of parts 1A of the civil liability act 2002 NSW in particular section 5B. His honour found that by reference matters set out in section 5B sub section 2 that in the circumstances of this case a reasonable recreational boat driver would have taken the precaution of conducting his part of the activity of wake skating that is driving the tow boat wholely within the marked channel. His honour found that driving the boat outside the marked channel would result in the probability of harm materialising and such a probability of harm resulting would be relatively high. His honour found that he Defendant was negligent and failing to navigate the boat wholely within the channel whilst towing the Plaintiff.
3. CAUSATION. The court considered the issue of causation and noted that the owners of proving every fact necessary to establish that the negligence of the Defendant caused his injuries lies, and remains with Plaintiff (section 5B civil liability ACT 2002). His honour grounded that the Defendant did not contest causation seriously but concluded that the Plaintiff’s injuries would not have occurred at the Defendant navigated his boat in the Western extremity of the channel where the depth was such that no appreciable injury would have occurred. For that reason, his honour was satisfied that on the balance of probabilities but for the failure of the Defendant to take precaution of remaining in the channel, the Plaintiff’s injury would not have occurred.
4. Whether the sport of wake skating amounted to dangerous recreational activity within the meaning of section 5L of the civil liability act. His honour considered the various case law and concluded that he was not persuaded by the Defendant that wake skating was a dangerous recreation activity. The reasons provided by his honour were as following:
i. The activity was to be engaged in only relatively deep water of the channel.
ii. Unlike other variance of wake skating is undertaken at relatively slow speeds sometimes slower then wake boarding at about half the speed of water skiing whether on one or two skis and out of friction of the speed of ski racing.
iii. The Plaintiff was ? but he had experience in other water sports including wake boarding.
iv. The evidence of Mr Elison does not support the idea that wake skating is an activity involving a significant risk of physical harm even if one allows for the inherit risks which he identifies.
v. Even at 1.5 metres or less in depth it may be difficult that wake skating involved a risk of injury through striking the bottom which has a real change of materialising.
vi. His honour accepted that a low risk of catastrophic injury may amount to significant risk of physical harm but concluded the risk of the relevant ? factors combining to produce catastrophic injury had fallen in identical circumstances in the channel was so slow to justify to be put to one side as not significant quoting Fallvo Ippja.
His honour found in favour of the Plaintiff on the question of liability the damages to be assessed. The Defendant was in order to pay the Plaintiff’s costs of determination as agreed or assessed.