Written by Peter CarterOctober 31, 2014
It was a perfect Sunday in June 2008 when the pair sped from Scarborough across the calm waters of the bay, for a morning of spearfishing at Cape Moreton. Jacques Du Pradal skippered the 5.5 m Viking to a reef 2nm east of the lighthouse where he and dive companion Andrew Willsford began their snorkelling.
About the same time the pair had departed the mainland, a fishing party had embarked at Pacific Harbour on Bribie Island for fishing spot to the south of the divers’ position.
About 11am, the Viking headed in-shore for drift diving off Honeymoon Bay where another 10 or so boats were anchored.
Just before midday the wet-suited Du Pradal went over the side with spear gun in hand. He had placed the “diver below” flag in a fishing rod holder on the canopy and trailed an orange “warning” float attached to his weapon by 20 m of line.
At the moment he entered the water, the fishing party was approaching the bay from the east in a Haines Hunter vessel skippered by David Petchell.
Du Pradal bobbed along the surface as he drifted about 50 m away from his boat, looking down through goggles to sight a target at which he could take aim.
Willsford – who was by then back on the Viking having a sandwich – spotted the Haines approaching from the east when it was about 100 m distant. He began waving frantically to warn the approaching boat of the diver.
By analysis of GPS data, it was established that Petchell slowed the Haines from about 23 knots to 11 knots from a point about 150 m away, where he explained he had first seen the orange float.
Taking a line through a 40m gap between the Viking and a group of anchored vessels further inshore, Petchell thought the float was “for a crab pot”. The occupants saw the bobbing snorkeller too late.
They all heard the thud when their port bow struck and the sound of the diver bouncing along the underside of the hull as it drove over him until its rotating propeller began cutting into his abdomen and left leg.
Willsford immediately powered across to pull his companion from the water and then sped the 400m to a beach near Comboyuro Point, to allow the helicopter evacuation from there. Petchell defended the injury lawsuit that followed on several grounds including, that Du Pradal hadn’t taken sufficient care for his own safety by reason of the absence of a “diver below” flag on the safety float itself.
Supreme Court Justice Debra Mullins disagreed. Expert evidence established that in 2008 most dive floats did not have dive flags. “The orange float did not need a dive flag attached for it to be recognised as a dive float. As it was visible to Petchell when he was about 100 to 150m away, it did act as a warning.”
She was satisfied that a reasonable skipper navigating a boat in the vicinity of a popular dive spot where fishing vessels were anchored would have taken precautions to avoid the risk of injury to people swimming or diving nearby.
Justice Mullins also found that the Haines failed to comply with the 6 knots speed limit within 30m of an anchored vessel. Petchell was liable, she ruled, for the resulting injuries which included several rib fractures and associated pneumothorax and diaphragm injuries, internal organ injuries and nearly every large bone in his left leg and foot, broken.
As a complication of the injuries, Du Pradal also suffered a stroke two months later.
Orthopaedic specialist Greg Gillett assessed his whole person impairment at 21% while neurosurgeon Scott Campbell certified that the diminution in language and communication skills – a 10% whole person impairment – was a result of “a small infarct of the left middle cerebral artery that occurred as a result of the stroke”.
The court assessed general damages at just $68k and past loss of income of $144k.
But given Du Pradal’s age (65 years at time of accident), it only allowed a further one year’s loss of future earning capacity damages notwithstanding the plaintiff’s sworn testimony that he intended to work in the family business for a further 10 years, given that his wife was 10 years his junior.
Past and future care damages of $285k made up the total award including expenses, to $675k.
The family company also sued for the loss of his services but given it had not employed any replacement labour, that claim was dismissed.