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Water sports accident – pre-existing undiagnosed spinal condition – characterisation of risk…

compensation law casenotes

…accident involving motorboat towing child in inflatable tube – whether sufficient precautions taken to guard against risk of back injury – whether dangerous recreational activity

The plaintiff, then 12 years of age, was participating in a recreational activity whereby he was ‘tubing’ on the Burrinjuck Dam in New South Wales in January 2015. 

Tubing involved the plaintiff being towed behind a motorboat in an inflatable circular tube referred to as a ‘biscuit’. The defendant, Mr Fuller, was the driver of the motorboat when the plaintiff had an accident and sustained a back injury. The plaintiff pursued a claim in negligence against the driver of the motorboat.  

There was a dispute between the parties as to how to categorise the risk that the defendant was said to have failed to guard against, and whether or not the plaintiff was out of time to bring his proceeding because of the statutory limitation applying to his claim (as set out in the Limitation Act 1969 (NSW)).

There was evidence that the plaintiff had been tubing several times before, but on those occasions, he rode in the centre of the wake and at a slower speed than he experienced on the day of the accident. The plaintiff gave evidence that the defendant provided no instruction on hand signals he could make, to alert the driver of any trouble or concern about the speed or the movement of the boat, nor did the plaintiff have experience with hand signals in any event.  

The defendant did not give evidence, so there was no competing version of events. The judge accepted the plaintiff’s evidence. The evidence was that the boat, on the date of the accident, was travelling at a speed much higher than had previously been experienced by the plaintiff, and it was being driven in a zig-zag manner. As a consequence the tube was moving from side to side, resulting in the tube hitting the wake left by the boat.  

The plaintiff told the court that the tube went up the wake, became unstable and capsized. The plaintiff went face-first into the water, and while under water he continued to hold onto the tube, which meant he was wrenched backwards. His back was arched and he sensed a clicking sensation in his back and associated pain.  

He let go of the tube, floated to the surface and waited for the boat to pick him up. Expert evidence was led by the defendant suggesting the plaintiff could not have continued to hold onto the tube, because he was wearing a life jacket and had gone face first into the water – that evidence was rejected.

Decision

  1. judgment for the plaintiff in the sum of $92,595.00
  2. interest payable on part of that judgment sum, in the amount of $310.95
  3. the defendant is to pay the plaintiff’s costs.

Ratio

The first issue for determination was whether or not the plaintiff was barred from pursuing his claim, because of the expiry of the limitation date applicable to his claim. The judge adopted a three-tiered approach:

  • When did the plaintiff know, or should the plaintiff have known, that the injury had occurred?
  • When did the plaintiff know, or should the plaintiff have known, that the injury was caused by the fault of the defendant?
  • When did the plaintiff know, or should the plaintiff have known, that the injury was sufficiently serious to justify bringing a claim?

As to the first question, the judge was satisfied that it would not have been long after the event that the plaintiff would have known that an injury had occurred, especially given his mother was in the boat at the time of the accident.

As to the plaintiff’s knowledge of the defendant’s fault, the judge said this refers to knowledge that the matter was ‘legally actionable’. In this regard, the judge had to identify when the plaintiff’s parents knew, or ought reasonably to have known, that any conduct of the defendant was actionable.  

The judge noted that the plaintiff’s father was a solicitor and principal of a law firm, and that the firm practised in common law negligence claims. The plaintiff’s father would have an advantage because of his legal knowledge, but it was not a matter of whether the father could provide the advice; it was that he did not want to – raising the question of whether advice was required from someone else before the plaintiff could know if the injury was legally actionable. 

It was submitted the plaintiff’s father did not live with the plaintiff at the time of the accident and was not aware that the injury had occurred until many months later. The judge noted that a question a parent asks of an injured child – as to how an accident occurred – is likely to be different to the question/s a competent lawyer asks in order to provide advice about a claim being legally actionable.   

As a result, the judge proceeded on the basis the plaintiff knew the claim was legally actionable on 4 February 2016, as at that stage, his father had sufficient information about the accident to seek legal advice from a qualified lawyer.

As to the third issue, when the accident occurred, the injury was painful but not debilitating for the plaintiff. At the time, it was not immediate that it was serious enough to justify pursuing a personal injuries claim. The plaintiff was following his general practitioner’s (GP) advice, and although there was some small delay in seeing the GP, that was understandable in the context of a painful injury.

It was necessary for the plaintiff to undergo specialist consultation and magnetic resonance imaging (MRI), and to try physiotherapy in the intervening period, to gauge whether the plaintiff’s injuries were sufficiently serious to bring a claim. It was not until the plaintiff saw a specialist that information could be obtained on whether the injury would ‘settle over time’, would be ongoing, whether it was treatable or could be fixed by surgery.

If it was assumed it was reasonable for the plaintiff to see a GP in mid-February 2015, there would have been a delay in seeing a specialist for many months, bringing the time – of when a cause of action might first be discovered – to mid-July 2015. Accordingly, the limitation period would only expire in mid-July 2018, and on this most favourable set of facts to the defendant, the claim remained on time, and the defence based on the Limitations of Actions Act 1969 (NSW) failed.

The court then turned its attention to the defences available to the defendant under the Civil Liability Act 2022 (NSW). The defendant raised the defence that, if the plaintiff suffered injury as a result of an obvious risk of a dangerous activity, it was therefore absolved of liability, or alternatively, the plaintiff was contributorily negligent.

The first challenge for the court was to work out the foreseeable risk of harm, that is, to determine the precautions a reasonable person would take. The judge defined the activity in question as “…an experienced and sober driver of a boat, towing a twelve-year-old boy, in an inflatable tube or biscuit, on water that was an established recreational water sports location, in daylight, in unremarkable weather conditions. The relevant risk created by the towing of any person (including a child) in an object on water is that the object might turn over or flip, causing a person to suffer a physical injury in that process.” 

The judge referred to Perisher Blue Pty Ltd v Nair-Smith and said: “characterisation of the risk must include the general causal mechanism of the injury sustained”. Further, that the general causal mechanism to guard against here was that a person sitting in the tube might get injured if the tube were to turn over.  

The judge held it was sufficient to class the relevant risk as one that the tube might flip, and in the process of flipping, may cause the person to suffer physical injury. The risk needs only be described by reference to the tube flipping, but not more specifically than that. The defendant argued for a much narrower definition of the risk, that is, a person might suffer an injury from being dragged or pulled in the water after the tube had flipped.

The judge then considered what precautions a reasonable recreational boat driver engaged in the activity might have taken. The judge accepted that the boat was going faster than it should have in the circumstances known to the defendant; when the plaintiff was not properly instructed about the zig-zag path of the boat, which was intended to create a wake where the tube rider had to cross.

The defendant did not take sufficient precautions to guard against the risk that the tube might pull or wrench the plaintiff’s body once he fell into the water. The defendant did not act with a sufficient level of precaution in response to the risk. It was noted, however, that the plaintiff had an underlying condition, and the judge accepted that the boating accident caused an aggravation of that underlying back condition. The judge was satisfied that the incident caused an “asymptomatic underlying spinal condition to become symptomatic”.

The judge was satisfied that there was no issue that the activity being undertaken by the plaintiff was recreational in nature. The judge referred to the decision in Whittington v Smeaton [2016] ACTSC 76, which set out a number of propositions for determining whether a particular recreational activity was dangerous, including:

  • the definition must be read as a whole
  • regard must be had to the nature and degree of harm that might be suffered on the one hand, and the likelihood of the risk materialising on the other
  • a risk is ‘significant’ if the likelihood of its occurrence is not trivial, but rather has a real chance of materialising
  • the assessment of the risk includes an assessment of the likely seriousness of the harm, and
  • significance is to be informed by the elements of both risk and physical harm.

The defendant argued that tubing was a risky and dangerous activity. The plaintiff argued to the contrary, saying that tubing does not carry a significant risk of significant physical harm, referring to Falvo v Australian Oztag Sports Association [2006] NSWCA 17.

The judge noted that the court will not consider the activity in the abstract; it will look at all the particular circumstances of the participation in the recreational activity. The judge was not satisfied that tubing, by its inherent nature, was in a category or activity which might be viewed as dangerous, such as bungee jumping or aerial skiing. The judge pointed out it was not lawn bowls or kite flying either. 

However, the relevant facts were that tubing was activity engaged in by a 12-year-old boy who was relatively inexperienced in it and who had taken the precaution of wearing a life jacket. The control and speed of the boat, including the direction, was in the control of a sober adult, the boy’s aunt was sitting in the boat facing him as an observer, the activity was during daylight hours at a known water sports location and there were no adverse weather conditions present.  

It was acknowledged that there was a risk of the tube flipping over while any person was being towed, and that if it did flip over, there was some risk of physical harm. However, the risk of serious or significant injury must be looked at in all circumstances, where he was wearing a life jacket and where all other precautions were being observed. The judge did not find the activity to fall within the definition of dangerous.

The judge then turned the attention to whether the risk was obvious, because the plaintiff here was a 12-year-old boy, and the obviousness of the risk in question must be looked at from the perspective of a 12-year-old child. The judge again pointed out the plaintiff’s age, that his previous experience had been travelling in a straight line in a sedate pace, and that he was wearing a life jacket. He had been given no instruction about the potential risk, or a suggestion that the boat might speed up, etc.

The risk of the boat continuing to pull the tube after flipping may be obvious to an adult, however might not have been immediately apparent to a 12-year-old that he should let go. As to contributory negligence, the judge held that in light of the factual findings already made, there was no room to accept that there was any level of contributory negligence on behalf of the plaintiff; given his age at the time of the event, and his inexperience of the activity in the manner in which it was conducted.

This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Tim McClymont, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.

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