The NSW District Court found that a fishing charter operator was liable in negligence for injuries suffered by a passenger when the defendant’s catamaran encountered large waves while crossing the Yamba Bar.
The decision illustrates the importance of meaningful and documented safety briefings and risk warnings for leisure boating operators, particularly those operating in open water.
The Plaintiff and her partner had orally engaged the Defendant to conduct an offshore fishing charter from Yamba. As the vessel crossed the Yamba Bar, it encountered three large waves. The Plaintiff (who had limited experience of boats negotiating river bars) was thrown from her feet and suffered injuries to her ankle and back.
The Court made the following relevant findings of fact:
- The Defendant did not give the Plaintiff or her partner a safety induction either prior to departure or when the vessel was under way;
- The Defendant did not provide any written terms and conditions to the Plaintiff at any time;
- The Defendant did not warn the Plaintiff that the vessel might encounter large waves when crossing the bar;
- The Defendant did not advise the Plaintiff how she should hold on when crossing the bar;
- When passing a Maritime Services boat on the river, the Defendant instructed the Plaintiff and her partner to put on their lifejackets but not to do them up.
The Court found that the Defendant was liable to the Plaintiff in negligence. The risk of injury posed by the waves was foreseeable and the Defendant’s failure to instruct the Plaintiff in how to hold on appropriately was causative of her injuries.
There was no reduction for contributory negligence as the Plaintiff had no appreciation of the dangers she faced and did not know how to adopt any precautions because she had not received any relevant instructions from the Defendant.
The Court also found that the statutory defences under the Civil Liability Act 2002 (NSW) did not apply:
- The ‘inherent risk’ defence (Section 5I) failed as the risk could have been avoided by the exercise of reasonable care and skill, namely providing an appropriate risk warning;
- The ‘obvious risk’ defence (Section 5H) also failed. While the risk of falling over in a boat is obvious, the risk that the vessel might encounter dangerous waves while crossing the bar would not have been obvious to a reasonable person with the Plaintiff’s limited boating experience; and
- Crossing the bar was not a ‘dangerous recreational activity for the purposes of the defence in Section 5L as there was no significant risk of harm from a prudent crossing of the Yamba Bar.
The decision is relevant to leisure craft operators as it demonstrates the importance of meaningful and documented safety inductions. In this case, a substantive safety briefing may have prevented the incident which was the subject of the proceeding.
Even with appropriate safety briefings it is not possible to prevent all accidents on leisure craft. In these situations, the risk management focus shifts from preventing injury to being able to defend claims arising from such injuries.
As a starting point, leisure craft operators can transfer (or at least manage) risk by incorporating an appropriate risk warning and waiver into a written contract with the passenger prior to commencing the trip. To be effective, the waiver needs to alert the passenger to the general risks of the activity and the fact that they are giving away their legal rights to the leisure craft operator. The wording needs to strike a balance between delivering a meaningful risk warning and creating a document that a potential passenger will read, understand and sign.
If worded properly, the waiver will enhance the operator’s prospects of persuading a court that an effective risk warning was provided and potentially allow the operator to rely on the defences provided under civil liability legislation.
Secondly, having incorporated a risk warning and waiver into a written agreement with the passenger, the operator needs to follow it up with a meaningful and documented on-board safety briefing. Ideally, the briefing should follow a standard script (which can potentially be tendered as evidence of the content of the briefing) with the operator keeping a written record that it has been delivered – such contemporaneous records may be crucial if there is dispute as to the delivery of a safety briefing or its content.
This article was written by Anthony Highfield, Partner and James McIntyre, Special Counsel.