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The tragedy occurred at picturesque Chinderah, about 1 km south of the Barney’s Point Bridge as the Tweed bends gently northwards for its last long sweep before emptying through its mouth, the Heads that bear its name.
It was a warm Sunday afternoon in November 2007. Martin Hume had finished his supermarket shift at the Tweed mall early. He hurried to the Chinderah boat ramp whereas another group was dropped ashore by driver Timothy Patterson – he boarded the Cruise Craft ski boat with friend Bryan Woodford to act as an observer.
Belting on a lifejacket and over the side of the boat with wakeboard and ski rope in hand, he has towed on his wake run upstream towards Tumbulgum. After his first few runs on the wakeboard, Hume switched to a wakeskate: a similar device but wider; with no boots or foot straps; and with a grip tape topside surface to allow riders to flick and jump the board like a skateboard.
The two very similar wake-riding activities involve jumping or riding the boat’s wake. The repertoire of a skilled rider includes manoeuvres of breathtaking aerobatic complexity but for beginners, all efforts are directed to getting out of the water and just staying upright behind the boat. Both forms of the sport require a relatively benign tow speed of around 15–20 knots, significantly slower than for conventional water skiing.
For Hume, it was his first-ever attempt on a wakeskate but he was an experienced skier and boarder. Almost as soon as he got up on the board from his third “deep water” start – this time heading downstream – he came off, falling forwards and striking a shallow sandbank, headfirst.
Hume sued Patterson’s insurer for the catastrophic tetraplegia resulting from the compression fracture his neck sustained in the impact. The factual issue before the New South Wales Supreme Court was exactly where in that reach of the river the spill had occurred.
An eight-day trial on the separate issue of liability only heard testimony from numerous witnesses and expert biomechanical engineers. His Honour concluded the driver had towed Hume outside the main channel, into the vicinity of a sandbank over which water depth was less than 1.5 m. Patterson’s evidence that the injury must have resulted from an unseen submerged obstacle inside the main channel was rejected.
The marine insurer opposing the claim asserted, that regardless of the fault of its insured driver, Civil Liability Act immunity should be granted to protect it from having to pay under the boat owner’s policy. The accident, it claimed, had resulted from an “obvious risk” arising from a “dangerous recreational activity”.
Wakeskating even at low speeds in a safe depth of water by an experienced waterskier such as Hume – involved, it contended – “significant risk of physical harm”. The insurer’s proposition was rejected.
While the court agreed there was indeed a small risk of harm associated with the sport as it is normally conducted in the water of safe depth, in this instance, it was the hazardous circumstances – an unsafe water depth over or very close to the sandbar – that created the danger.
Civil Liability Act immunity was refused.
Judgement was entered in Hume’s favour for damages to be assessed at a later trial.
Hume v Patterson [2011] NSWSC 439 Campbell J 30 August 2013 – view decision
Categories: Personal Injury , Litigation & Law Practice