The Plaintiff was being towed on a wake skate by a driver of a boat in the Tweed River. At the time the driver of the boat was travelling outside the channel markers in shallow waters. The Plaintiff had fallen off twice before and this was his third attempt. The boat had travelled about 15 metres when the Plaintiff fell off again, dove head first into the water, struck and sand bar and sustained significant injuries to his neck which resulted in him suffering quadriplegic injuries. The Plaintiff was taken to hospital where he was admitted and treated for a lengthy period of time. As a result of the accident and the significant injuries, the Plaintiff has been reduced to a wheel chair for the remainder of his life.
The Plaintiff initially instructed another firm of lawyers who conducted some preliminary investigations but then told the Plaintiff that he did not have prospects of success. The Plaintiff did not give up and ultimately sought advice from Gerard Malouf and Partners and instructed Gerard Malouf and Partners to act on his behalf. Further investigations were carried out and Gerard Malouf & Partners provided advice to the Plaintiff that the matter did have reasonable prospects of success and decided to pursue the matter against Club Marine for the relevant insurers of the owner of the boat. The matter was commenced the Supreme Court and ultimately it was heard before Justice Campbell who after numerous days of hearing of liability handed down a judgement on 30 August 2013 in the Plaintiff’s favour.
The Plaintiff was thrilled with the result given that another previous firm had told him that the matter did not have prospects of success. Because of the judgment in his favour, the Club Marine insurer has invited the Plaintiff to participate in a mediation. The case has not yet resolved as the Defendant has lodged a holding appeal and is likely to pursue that appeal if that matter cannot be resolved.
Of significance are the findings of Justice Campbell who concluded that had the Defendant remained in the channel, the risk of the Plaintiff sustained significant injury were quite low but because his honour found that the Defendant had driven his boat outside the channel and in water which was about 1.1 metres deep then the risk of injury became significantly higher. This rendered the Defendant negligent.
The case is on appeal at the moment but the result could be relevant to many other people who undertake the sport of wake skating and who may also suffer significant injury.