January 23, 2015

The failure to adequately brief an 80-yr-old charter yacht passenger before she boarded a vessel in Hamilton Island harbour is alleged to have caused the fractured spine that resulted from her fall down the galley stairs moments later.
Ruth Ellery’s daughter, Christine had arranged the cruise at the end of a family holiday in the Whitsundays. Soon after the party boarded the catamaran, while cupboards and fridges were being stacked with provisions, Ruth stepped backwards and fell down a short but steep flight of steps.

Christine had chartered the French built Lagoon 440 Sea Lynx on-line from international self-sail hire company, Sunsail – with a skipper – for a one day cruise among the neighbouring islands in May 2012. The evidence – much of it given by phone – suggested that while another member of the family was handing him items for the fridge, Ruth’s husband was looking for his motion sickness tablets.

Someone else may also have been trying to get past at that moment. Ruth was bumped or took a step or two backwards and then fell backwards down the unseen steps. Captain Ash gave testimony that he normally gave a briefing on the back deck after passengers had settled in.

Expert evidence – from engineer Roger Kahler – spoke of Maritime Safety Queensland’s risk assessment guidelines the primary task of which is to identify hazards. Kahler referred Australian Standards to also demonstrate that the identification of available injury data was an essential part of that process.

Having performed that exercise for the purposes of the trial, he concluded there was indeed potential for serious injury from a fall down the stairway.

The general public – Khler said – could not be expected to be familiar with the “configuration of its walkways and access systems”, resulting in a significant risk. This left it open to District Court Judge Brian Devereaux to conclude that the skipper ought to have briefed passengers before they embarked onto the vessel.

Should Sunsail also have fitted a barrier at the top of the step rungs?

According to the judge, while the “wood panelling no doubt produced an elegant and stylish vessel for private use, in commercial charter, a reasonable response to the risk requires a physical safety barrier which reduced the risk of falling at least until all passengers were on board and given a thorough safety briefing”.

Failure to implement such a safety system amounted to a breach of duty and was a significant cause of the plaintiff’s injury. Sunsail contended it should nevertheless be immune from liability for the 80-year-old’s injuries under the Civil Liability Act because the stairway was an “obvious risk”.

“Not so” ruled the court. The risk was real and “the confines of the saloon on the Sea Lynx and the peculiar structure and situation of the access stairway” meant the obvious risk defence “to absolve the defendant of its duty,” was inapplicable.

Regardless, the octogenarian – who spent three weeks in Mackay Base Hospital and another 10 in Caloundra Hospital – was found to have partly contributed to the boat injury by failing to “keep a proper lookout”. Now requiring full-time care rather than enjoying her former active lifestyle, “pain and suffering” damages were assessed at just $30k.

The cost of public hospital treatment of nearly $120k was also allowed in a total assessment of $168k – which after adjustment for her 30% contributory negligence – was reduced to $118k.

But because the full amount of the “free” public hospital charges (nearly $120k) must be repatriated immediately to the state – regardless that a 30% deduction to damages was applied – Ruth will likely see nothing of the award.

Ellery v Sunsail (Australia) Pty Ltd [2014] QDC 285 Devereaux SC DCJ published 22/01/2015

Categories: Litigation & Law Practice , Boating & Watercraft , Holiday & Travel Law

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