Compensation for Boating Personal Injury – Experienced diver successful in claiming damages

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The Supreme Court of Queensland delivered a judgment regarding compensation for boating personal injury on the 24 October 2014 in the case of Du Pradal & Anor v Petchell [2014] QSC 261 awarding damages of $675,203 to a 71 year old male for personal injuries he suffered whilst diving/snorkeling near Cape Moreton.

The case is significant in relation to two issues:

  1. Whether the defendant was liable for damages in relation to the boating injuries suffered by the Mr Du Pradal (“the First Plaintiff”) after the boat of Mr Petchell (“the Defendant”) struck the first plaintiff whilst the first plaintiff was snorkeling; and
  2. Whether the first plaintiff’s employer could also bring a claim for damages against the defendant for the action per quod servitium amisit, that is, for the loss of the first defendant’s services.

Findings

A number of issues arose out of this boating injuries incident that required a determination by the court. These findings ultimately dictated the outcome of the matter.

Liability for Boating Injuries

After considering oral evidence given by the Defendant, the Defendant’s passengers, the Third Party and another witness to the event, as well as expert evidence from a software engineer regarding material from the GPS units on both the First Plaintiff and Defendant’s respective vessels’ coordinates, the Court made the following conclusions, which informed the Court’s decision:

  1. That just prior to the accident, the First Plaintiff was floating on the surface of the water after he had tried to spot fish but without success. Therefore, the First Plaintiff ought to have been visible to the Defendant. This finding was supported by the injuries he sustained and the fact that the First Plaintiff had not heard the approach of the Defendant’s boat, which he would have heard had he been underwater;[1]
  2. That the Defendant on the other hand, was driving his boat at the speed of 13 miles (which converts to 11.3 knots) at the time, as noted by Mr King, a passenger of the Defendant’s boat, who had seen the digital speed recording at the relevant time;[2]
  3. That the data retrieved from the GPS units, as well as the account of independent witnesses confirmed that the accident occurred within a popular fishing and diving spot;[3]
  4. That the Defendant had failed to slow down as was noted by the Third Party, which was also supported by the fact that another witness mistakenly thought that the Defendant’s boat did not play a part in the accident since the boat was still moving at some speed after the accident;[4]
  5. That based on the estimates of witnesses and the GPS data, which recorded limited changes in direction of the boat, it was more likely than not that the Defendant’s boat was less than 30 metres from an anchored boat when the First Plaintiff was struck. Therefore the Defendant should have been travelling at only 6 knots per hour (where the boat’s actual speed was 11.3 knots contrary to the requirements of section 127(2) of the Transport Operations (Marine Safety) Regulation 2004 (Qld));[5]
  6. That the Defendant should have taken proper notice of the First Plaintiff’s orange dive float and taken steps to avoid it. It could not be properly confused  for a crab pot float as the Defendant had tried to claim, given the distinctly different shape and size and the fact that this was not an area for crab pots;[6]
  7. That if the Defendant had properly taken notice of the orange float he would have realized “the opportunity to change the boat’s path of travel or slow down and keep a proper look out for the diver”;[7]

Based on the above, the Court therefore concluded that as to liability:[8]

“The risk of harm to a diver in the water at a popular dive spot and in the vicinity of anchored recreational vessels was a risk of which [the defendant] ought reasonably to have known and the risk was not insignificant. A reasonable person in [the defendant’s] position navigating the boat in the vicinity of a popular dive spot where there were anchored fishing vessels and a commonly used dive float signaling the presence of a diver in the water would have taken precautions to avoid the risk of harm to the diver. There was an easily available course of action for [the defendant] to take to avoid that risk of harm and that was to travel further out from the shoreline and the anchored vessels.”

The Court also decided that the First Plaintiff was not contributoryily negligent for the following main reasons:

  1. He was spear fishing in a popular dive spot; and
  2. Had attached a commonly used dive float in the vicinity of anchored fishing vessels.

Further, it was not relevant that the First Plaintiff had failed to exhibit a rigid replica of the international code flag “A” not less than 1 metre in height on the buoy as the Marine Orders – Prevention of Collisions were not applicable to the First Plaintiff’s type of boat (pleasure craft)[9] and rule 27 of the Marine Orders was directed to preventing collisions between ships only.[10]

The court also held that, as the Third Party was not supervising or responsible for the first plaintiff, there was no duty of care imposed on him to intervene to protect him.[11]

Even if he did owe a duty, there was no breach because he did wave his arms and tried to attract the attention of the people on the Defendant’s boat It was considered unreasonable to suggest that at the same time he should have tried to warn the first plaintiff.[12]

Loss of Services Claimed by the Employer

 The Second Plaintiff, the wife of Mr Du Pradal, operated a business and employed the First Plaintiff as the administrator and manager of the business.

After the boating injuries accident the First Plaintiff was no longer able to work in the business and resume his ordinary duties and the Second Plaintiff claimed that it was financially unable to pay for replacement labour for the tasks that the First Plaintiff had once performed and since then the business has become less profitable due to his wife having to undertake these duties.

Therefore an action per quod servitium amisit, that is, for loss of services, by the Second Plaintiff was brought.

To make this claim, the Second Plaintiff employer had to show:

  1. That the Defendant owed the First Plaintiff a duty of care, and that duty of care breached (as established above) or the Defendant harmed the First Plaintiff intentionally; and
  2. This caused the Second Plaintiff employer harm.

(see the Barclay case).

As a rule of law, the Second Plaintiff was also required to specifically plead in its statement of claim the damages that it was seeking.

The Second Plaintiff tried to submit that the value of the lost services was the notional cost of employing a replacement.

The Defendant objected to this on the basis that the Second Plaintiff had in fact pleaded in its statement of claim the wrong measure of damages – it had in fact pleaded for loss of net profits instead of the market value of the services, which is “generally calculated by the price of a substitute less the wages which the master is no longer required to pay to the injured servant.”[13] To plead damages for lost profits would permit recovery on a much wider basis which would be “undesirable”.[14]

So because this action is an action for loss of service and this was not actually pleaded, as a matter of law this claim by the Second Plaintiff failed.[15]

Implications of the Decision

This boating injuries case is an example of the complexity of determining breach of duty in a personal injuries or negligence action.

This boating injuries case also confirms the technicalities when pleading your case to ensure all bases are covered in a statement of claim because this can be “the be-all and end-all” for your claim. 

Want to know more about Compensation for Boating Personal Injury 

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[1] Du Pradal & Anor v Petchell [2014] QSC 261at [39].

[2] Ibid at [43].

[3] Ibid at [27].

[4] Ibid at [45].

[5] Ibid at [46] – [47].

[6] Ibid at [49].

[7] Ibid at [51].

[8] Ibid at [56].

[9] Ibid at [52].

[10] Ibid at [54].

[11] Ibid at [38].

[12] Ibid at [59].

[14] Ibid per Keifel J at [164]).

[15] Du Pradal & Anor v Petchell [2014] QSC 261at [143].