The Facts

Inexperienced wakeskater towed by boat on Tweed River

On the 18th of 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 on the wakeskate twice, but fell almost immediately on each attempt. On the third attempt the man had moved between 15 to 100 metres on the wakeskate when he fell forwards, falling into the water headfirst. As a result he suffered C6 tetraplegia, a spinal cord injury which left him a quadriplegic.

Bystanders came to the aid of the man and attempted to bring him to the surface. An ambulance was called.

The man did not have any memory of what occurred immediately after the fall. He could recall 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 which was towing him, claiming it had been 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.

case a - The case for the wakeskater

case b - The case for the boat driver
  • 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.
  • 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 is 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.

So, which case won?

Cast your judgment below to find out

Chris Clarke
Personal injury
Stacks Law Firm

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