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
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.
1  QDC 233.
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This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.
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