Opinion
‘I became a quadriplegic while wakeskating because the boat driver was negligent.’ Which case won?
21st Sep 2022
The facts
Inexperienced wakeskater towed by boat on Tweed River
On 18 November 2007, a man who intended to go wakeskating met a boat driver at a wharf on the Tweed River, in northern NSW, where a boat was moored.
It was intended that the boat driver would drive the boat, along with an observer, while the man would be towed behind, either on a wakeboard or a wakeskate. (In wakeboarding the rider’s feet are attached to the board, whereas in wakeskating they are not.)
The man was initially towed behind the boat on a wakeboard. He got up on the wakeboard several times, falling off twice. The boat was then stopped and the man switched from a wakeboard to a wakeskate. The man had never wakeskated before.
Wakeskater suffers spinal cord injury after falling
The man attempted to get up on the wakeskate twice, but fell almost immediately on each attempt. On the third attempt the man succeeded in getting up on the wakeskate, and he had moved between 15 to 100 metres before he fell headfirst into the water. As a result, he suffered C6 tetraplegia, a spinal cord injury which left him a quadriplegic.
The man did not have any memory of what occurred immediately after the fall. He could recall that there were people who were standing in the water assisting him and that the person nearest to him had water up to his belly button.
A witness who was 12 years old at the time of the incident gave evidence that he saw the accident and its aftermath. He said that the water was waist deep where the man fell and denied that the man had moved in the water or had been moved by anyone else.
Wakeskater takes legal action against boat driver
The wakeskater sued the driver of the boat that was towing him, claiming that the driver had driven negligently outside the navigation channel into dangerously shallow water, causing the catastrophic injury which he suffered. The boat driver denied negligence.
It was up to the Court to decide whether the boat driver was indeed negligent and liable to pay damages to the wakeskater.
The case for the wakeskater
- The driver dictated the speed of the boat and the direction of travel of the wakeskate.
- Wakeskating is not an activity that involves a significant risk of physical harm, as long as it takes place in deep water.
- The driver was aware that the water outside of the designated river channel was very shallow.
- The driver knew or should have known that if a wakeskater was caused to ride into that shallow water, there was a real risk they would sustain significant injury.
- The driver’s driving of the boat caused me to ride outside of the perimeters of the channel and collide headfirst with the sandbar.
- The risk that the driver would drive the boat in such a manner was not obvious to a reasonable person in my position.
- The depth of the water was clearly marked around the channels. The driver should have registered the depth of the water.
- The observer in the boat agreed under cross-examination that where I fell was very close to the sand bar and that the water was only waist deep a metre or two from where I fell.
The case for the boat driver
- I kept the boat and the wakeskater within the bounds of the navigation channel. The rider drifted into shallower water after he fell.
- The accident occurred at a water depth greater than two metres, which is not too shallow.
- Wakeskating is a dangerous recreational activity because it involves high speed and a likelihood of falling.
- The risk of falling and sustaining injury was obvious to a reasonable participant in the position of the wakeskater.
- Expert evidence shows that it is common for a novice waterskater to fall – indeed it is an inevitable component of the sport.
- Expert investigators confirmed that there were no hard surfaces or any debris in the water.
- Expert investigators also confirmed that the risk of injury was very low.
- The observer in the boat has confirmed that the water depth where the wakeskater fell was above head height. When the observer and I jumped into the river to help the wakeskater after he fell, I was unable to touch the bottom of the river.
Expert commentary on the Court's decision
Court rules in favour of wakeskater
In Hume v Patterson [2013] NSWSC 1203, the Court ruled in favour of the wakeskater, Martin Hume (the plaintiff), and gave orders that the boat driver, Timothy John Patterson (the defendant), should pay him damages.
There were three main questions considered by the Court.
- First, did the injury occur within the navigation channel?
- Secondly, did Mr Hume strike an object in the river, or the riverbed itself?
- Thirdly, if Mr Hume did hit the riverbed, then questions of negligence and causation arise. Was there an obvious risk of a dangerous recreational activity?
Did the injury occur within the navigation channel?
The Court heavily considered the opinion, evidence and research of biomechanical experts to determine the depth of the water in various regions.
The Court found that Mr Hume would have fallen close to the sandbar and outside the channel of water.
Mr Hume argued that he fell 40 metres to the west of the marker of the channel. The Court found that this perception may have been less reliable than the evidence of other witnesses, given that Mr Hume had just endured a traumatic experience.
The trial judge concluded that, on the balance of probabilities, Mr Hume would have suffered his injury close to the sandbar and to the west of the channel. The water at that location was concluded to be approximately 1.1 metres in depth, which was regarded as shallow water.
An expert, Mr Ellison, a competitive wakeskater and coach, outlined that the minimum safe depth of water for wakeskating was 1.5 metres. The wakeskater and the boat driver were both out of this safe range when the accident occurred.
Did the plaintiff strike the riverbed, or an object submerged in the water?
The judge rejected the notion that Mr Hume struck an object.
Biomechanical engineers Dr Andrew McIntosh and Dr Tom Gibson gave a report on Mr Hume’s spinal injuries and advised that they were caused by ‘flexion and compression loading of the cervical spine most likely when his head contacted the bottom of the channel’ (at [17]), and not by hitting another object.
The biomechanical engineers also agreed that Mr Hume’s neck was bent in such a way that it had not come into contact with a specific object.
The Court also considered evidence from Mr Hume’s mother, who noticed sand in his hair, which would have been from the riverbed.
Negligence, causation and obvious risk of a dangerous recreational activity
The Court concluded that Mr Hume had struck his head on the riverbed.
The Court then considered the role of the defendant’s negligence, examining whether there was a duty of care, whether that duty was breached, the risk of injury, causation and the obvious risk of a dangerous recreational activity.
Did the boat driver owe a duty of care to the wakeskater?
To determine whether the boat driver had been negligent, the Court first had to identify a duty of care.
The relationship between the driver of the towboat and the passenger is considered a duty of care category by law.
Did the boat driver breach his duty of care?
The Court considered pt 1A ss5B–E of the Civil Liability Act 2002 (NSW) (CLA). Section 5B addresses the fault for not taking precautions against a risk of harm. The Court outlined that if the boat driver had driven the boat outside of the navigation channel, which had already been established was the case, he was in breach of his duty.
Risk of injury to wakeskater
The risk to Mr Hume was that he might suffer a significant injury, rather than minimal injury, from engaging in wakeskating. The precautions Mr Patterson could have taken were to ensure the depth of the water was not so shallow that it risked causing a significant injury to Mr Hume.
The Court considered a reasonable recreational boat driver who has engaged in wakeskating as the standard of a reasonable person and asked what this person would do in the same situation. An experienced driver like Mr Patterson would know that there is a risk of falling into a sandbar when navigating too close to it.
The Court found that a reasonable driver would have performed the activity solely within the marked navigation channel and that Mr Patterson was negligent in not staying within the channel.
While the Court found that a catastrophic spinal cord injury is unlikely to occur in a water channel of 1.1 metres in depth, it still ruled in favour of Mr Hume.
Causation and the ‘but for’ test
Section 5D of the CLA outlines the principle of legal causation. The Court considered the ‘but for’ test, wherein but for the actions of the defendant the plaintiff would not have suffered any injury.
The judge found that but for Mr Patterson moving outside the channel, Mr Hume would not have been injured.
The Court consulted medical experts to consider the injury and the actions that led to it. The medical experts found that the depth of the water at one metre equated to the risk of a catastrophic injury.
Inherent risks of wakeskating
The Court considered the inherent risks of engaging in an activity such as wakeskating and identified risks including the risk of running into something submerged below the water surface, the risk of injury when falling off the board, and the risk of drowning after falling off.
Was the wakeskater aware of an obvious risk?
Section 5L(1) of the CLA asks whether the plaintiff was aware of an obvious risk, as defined in section 5F. If so, the defendant will not be liable. The Court found that there was no obvious risk.
What is a dangerous recreational activity?
A dangerous recreational activity is outlined in s5K of the CLA as a recreational activity involving some significant risk of physical harm.
The Court did not classify wakeskating as entailing a significant risk of physical harm and therefore it was not considered to be a dangerous recreational activity. Mr Hume did not think at any point that Mr Patterson would drive the boat outside the navigation channel.
This is an edited version of an article first published by Stacks Law Firm.
The ALA would like to thank Chris Clarke for this contribution.
Chris Clarke is a Senior Solicitor at the Stacks office in Tweed Heads and an Accredited Specialist in Personal Injury by the Law Society of NSW. He was admitted as a lawyer in 1994. Chris has worked principally in New South Wales and Queensland personal injury litigation, both on the Gold Coast and in Newcastle. His work has mainly involved work injury damages claims, motor vehicle accident claims and occupiers liability claims in both states. He has negotiated thousands of claims for personal injury over the last 28+ years of legal practice.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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