A recent Queensland District Court decision has found a jet boat operator was not negligent when a passenger sustained a back injury during a jet boat ride.
In James v Surfers Jet1, 66 year old Walter James claimed damages for a back injury he sustained while a passenger in a jet boat ride on the Gold Coast in April 2010. The jet boat trip involved a one hour ride on the Gold Coast Broadwater and included stunts being performed by the boat skipper including spins (with the bow of the boat going below the water, the stern rising out of the water and the boat turning around 270°). It was during one of these spin manoeuvres that Mr James says he was thrown into the air and crashed down on his seat. He says he felt excruciating pain in his back, and it later emerged he had fractured a vertebra (with his back injury being assessed as a 28% whole person impairment).
Mr James alleged the skipper of the jet boat was negligent in the way he operated the boat. The defence was essentially to the effect that Mr James' injury was caused by some inherent weakness in his spine, or was otherwise suffered without negligence on the defendant's part.
The skipper, who was also the operator of the jet boat business (and was self-represented at trial), argued that his actions were not outside the ordinary course of operating the vessel. He also gave evidence that Mr James' injury was the only occasion an injury had occurred during a jet boat ride, and that he had taken some 40,000 passengers for rides and spins.
The court focused attention on the burden of taking precautions to avoid the risk of harm and, in doing so, made reference to a number of other cases where the distinctive feature of a finding of negligence resulted from the operator doing something which ought not to have been done in the particular case, and which had the effect of causing the injury. The defendant's evidence was that he did not do anything different on this occasion from what he always did when performing a spin with the jet boat, and that no injuries had occurred in the past. The evidence also established there was some padding on the seats, albeit not much, and that the driver had instructed passengers to brace themselves by holding the bar in front of their seats once he signalled a manoeuvre was commencing.
The Judge ultimately concluded there was no evidence that any specific thing which should not be done by a jet boat operator was done on this occasion or what the defendant could have done to avoid the risk of harm occurring. The Judge also rejected the allegation that the mere fact of the injury supported an inference that the vessel was being operated unsafely (e.g. at an excessive speed) or a breach of the duty of care. The Judge considered there were two possible hypotheses for the plaintiff's injury which did not involve negligence on behalf of the defendant: the defendant took reasonable care but something unusual happened on this occasion which caused the injury to the plaintiff or the plaintiff at the time had a vertebra that was unusually susceptible to injury so that something which would have been harmless to others caused him to suffer a serious fracture.
Overall, the lack of evidence from the plaintiff about the defendant's alleged negligence ultimately led to the court finding in favour of the defendant. The plaintiff simply did not prove any facts sufficient to sustain an inference of negligence on the balance of probabilities.
The decision reinforces that a plaintiff has the onus of proving negligence and that the plaintiff must be able to show that an act of negligence caused the injury. Nevertheless, vessel operators who undertake thrill or adventure rides which might potentially expose a passenger to injury should however always ensure that whatever manoeuvres they perform are still safe, are performed within the ordinary course of operating the vessel, that any risk of injury has been assessed and that appropriate precautions are implemented to minimise any risk of injury.
Footnote
1 [2015] QDC 233.
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