Written by Peter CarterSeptember 22, 2015
The Paradise Point outing in April 2010 was intended to give all staff who rolled up the thrill of an authentic jet boat ride on the Southport Broadwater, 14 passengers at a time.
Walter James and his wife boarded first and sat at the starboard end of the rear row.
Although the seats had “not much padding”, there was a bar in front of each seat for each riders to hold on to.
Powerful water rockets allows the New Zealand built vessel – which had been operated on the famous Shotover River – to perform aerobatic-like stunts beyond the capacity of propeller driven watercraft.
One such feat is a 360 degree spin conducted once the vessel is configured “on the plane” at about 30 kts that ends with the boat’s nose “buried” under water as its rear becomes airborne before it splashes back down.
The boat came in for the first spin “pretty fast” and as the stern reared up, so did Walter. When it crashed down, he did too. The result, a compression fracture to his thoracic spine with a debilitating whole person impairment diagnosed by Neurosurgeon Scott Campbell, of 28%.
His injury compensation claim alleged the injury was caused by the negligence of the driver by “operating the jet boat at an excessive speed”. The case also relied on the doctrine of res ipsa loquitur.
While the court accepted that the jet boat “under the control and management of the defendant physically caused the injury,” it was not prepared to assume that its operation was thereby negligent.
The driver/operator – who was self represented at the Southport trial – swore he “did what he does on every ride and that he has never known of any passenger being injured in this way before”.
Denying the suggestion that he was going too fast, had he been going slower – he claimed -the boat would not have been able to do the manoeuvre at all.
No contrary evidence was called and on that basis Judge John McGill ruled “there is no proper basis on the evidence on which I could conclude that the fact of the injury supports an inference of negligence on the ground of excessive speed”.
Equally likely in his view, were other possible explanations: some unexplained unusual factor caused the injury, despite reasonable care; or “his spine may have been unusually susceptible to injury, so that something harmless to others caused him a serious fracture”.
“I have no evidence which supports the conclusion that the hypothesis of negligence would outweigh the other two hypotheses,” said the court.
But even if excessive speed had been proven, Civil Liability Act s 9(1)(c) required – for proof of negligence – that a reasonable person in the position of the defendant would have performed the manoeuvre at a slower speed. There was no evidence to support such a conclusion.
Of interest, the absence of sufficient padding was not a pleaded particular of negligence and “all the particulars pleaded were concerned with the operation rather than the design of the vessel”.
For all those reasons, Mr James failed in his claim that otherwise would have netted the 66-yr-old, $170k.