April 20, 2016

A freak accident resulting in a serious injury to an army private during a ski run on the Ross River in Townsville has been litigated in the ACT Supreme Court.
Scott and Todd Smeaton had grown up with boats at Batemans Bay in New South Wales. Both had boat licences and both had been accepted – after completing their basic training in Victoria – into army marine specialist training.

Scott and fellow recruit Nathan Whittington became mates and their association continued when they found themselves posted to Lavarack Barracks.

Todd – the elder of the two brothers – purchased a Yamaha jet ski in May 2009 while in Townsville on leave from a tour of duty in Afghanistan and used it frequently on the Ross River.

The tragedy occurred the third time – in November 2010 – Whittington joined the brothers and other soldiers for a ski on the Reserve Reach of the river.

Whittington reluctantly agreed to Todd’s request to act as his observer, because – unprepared for the activity – he was fully clothed and had no understanding of an observer’s role.

The senior Smeaton explained that he would need to ride in backwards-facing pillion position and relay to him communications signalled by hand from the skier and tell him when the skier went down. He assured Whittington that he would not even get wet.

Todd drove at first, with Scott barefooting behind for about 10 to 20 minutes. The novice observer had no difficulty interpreting the “slow down” and “go faster” hand signals. When Scott let go of the ski rope at the end of his run, he competently retrieved it from the water as Todd began a slow gentle turn downstream to collect the skier.

The trio then returned to shore so skier and driver could swap roles, with Todd opting to use a ski.

About 10 minutes into that run, After Whittington relayed to Scott that Todd was down. The driver executed the turnaround at greater speed and at a tighter radius than the observer was prepared for.

Just as Whittington was reaching down for the ski rope to begin to pull it in – while the watercraft was still at some speed – the wake from another vessel hit, causing him to lose balance and fall in unnoticed by the driver who continued his swift return to his skier.

Whittington’s leg somehow got tangled in the ski rope. It spliced through his lower right limb traumatically amputating his foot.

Whittington launched an injury compensation lawsuit in the ACT Supreme Court against both Smeatons. Because Todd’s insurer – Allianz’s Club Marine – refused to cover them for the loss, it was joined as a party to the claim.

Club Marine contended that the defendants enjoyed Civil Liability immunity because the accident arose from an “obvious risk” in the course of a “dangerous recreational activity”.

But the expert evidence of mariners Ellison and Laing was that riding a jet ski in good weather and water conditions with an experienced driver was “not an activity that involved any significant risk of physical harm”.

Justice David Mossop agreed, drawing further comfort from the assurance given to Whittington that he would “not get wet”. That assurance “constituted a limitation on his participation to the extent of reduction of any danger that might otherwise be involved,” he ruled.

Neither was the risk that materialised by any means “obvious” as neither expert had heard of any such accident. Severe injury to pillion passengers on jetskis in enclosed waters were almost unheard of, the experts agreed.

Thus, Scott as driver and Todd as the person who provided Whittington’s safety briefing could not take advantage of Civil Liability immunity and were liable in negligence to Whittington for negligence.

But could they compel Club Marine to pay up as per Todd’s policy?

Because Scott Smeaton had boating licence but not one for personal watercraft, the insurer sought to rely on its exclusion relating to “unlicensed persons” in control of a vessel.

Scott and Todd countered against that with a contention that Scott’s lack of a PWC license had nothing to do with the accident and that Club Marine was nevertheless liable – on the strength of Insurance Contracts Act section 54 – to pay up regardless.

Justice Mossop concluded, having regard to the fact that a NSW licence would have been granted to Scott merely upon sitting a written test, that such qualification would have played no role in preventing the resulting injury.

Although such NSW license would have been permitted Scott to operate a jet ski in Queensland, Justice Mossop also considered the Queensland licensing regime – requiring as it does a 2 hour training course to be undertaken – would have been unlikely to have caused Scott to have driven the jet ski any more safely as the course included nothing about pillion or waterskiing safety.

The most that could be said of Scott’s participation in such a course was he may have received “a gentle reminder of safety issues” and he may have “learned some new technique”. However what new information might have been imparted was mere speculation.

Insurance Contracts Act section 54 was held to have applied so as to prevent Club Marine’s refusal of payment of the claim.

Judgement was entered against it for the agreed damages of $800,000.

Whittington v Smeaton [2016] ACTSC 76 Mossop AsJ 18/04/2016

Categories: Personal Injury , Litigation & Law Practice , Civil procedure

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