Recreational injury · Paid watersports
Injured on a banana ride, parasail, towed tube or paid watersport in Queensland?
A watersport operator must take reasonable care with its boats, towlines and harnesses, its briefings, and the way each ride is driven. A waiver doesn’t automatically end a claim. Claims start with a notice of claim, and strict time limits apply.
- No-obligation first consultation
- No win, no fee*
- We set out our costs in writing at the start.
The risk you took on, and the risk they created.
- A spill into the water at a gentle speed
- Spray, chop and getting wet
- A towline or harness that failed
- A driver turning too fast or too close
- Riders sent out without a life jacket or briefing
A risk created by a failure to properly operate, maintain or care for equipment or an animal usually isn’t an obvious risk. (Civil Liability Act 2003 (Qld) s 13(5))
Time limits
Time limits can start on the day you’re hurt.
Most recreational injury claims start with a notice of claim. These are the deadlines, in order.
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9months
Notice of claim, or sooner
Give Part 1 of a notice of claim within 9 months of the injury (or of first symptoms, if later), or 1 month after you first ask a lawyer to act for you and the party responsible is identified, whichever comes first. (PIPA s 9(3)) A late notice can still be given, but you must also give a reasonable excuse for the delay. (s 9(5))
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1month
Their first reply
Within 1 month, they must say whether they’re the right party and whether your notice complies. (ss 10, 12)
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6months
Liability decision
Within 6 months of a complying notice, they must say in writing whether they admit liability. (s 20)
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3years
Court action
Generally within 3 years of the injury. (Limitation of Actions Act 1974 (Qld) s 11) For a child’s negligence claim, generally within 3 years after they turn 18. (s 29) Claims against a product maker, and some flight claims, have different limits that can run out sooner.
If it happened to a child
A parent can give the notice of claim for a child. (PIPA s 9) A negligence claim can generally go to court up to 3 years after the child turns 18. Claims against a product maker, or for a flight, can have shorter limits that run during childhood, and the notice has the usual deadline.
No CTP on the water
Boats and jet skis aren’t covered by the CTP scheme. (Motor Accident Insurance Act 1994 (Qld) s 4) A claim is made against the operator, owner or driver through the usual notice of claim. (PIPA s 9)
The obvious-risk defence
Three questions decide it.
For a dangerous recreational activity, there’s no claim in negligence for an injury from one of its obvious risks. (Civil Liability Act 2003 (Qld) s 19) Many injuries come from risks that aren’t obvious.
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Question 1
Was it a dangerous recreational activity?
An activity done for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm. A gentle ride or a beginners’ trail may not be one. (Civil Liability Act 2003 (Qld) s 18)
If not, the defence doesn’t apply
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Question 2
Was the risk obvious?
One that would have been obvious to a reasonable person in your position. It can be obvious even if it couldn’t be seen. A risk created by poor operation or maintenance usually isn’t. (s 13)
If not, the defence doesn’t apply
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Question 3
Were you the one doing it?
The defence only applies to the person doing the activity, not to spectators or bystanders. (s 19)
If not, the defence doesn’t apply
All three must be true for the defence to apply. Even then, it only covers that obvious risk.
There’s also no liability for an inherent risk, one that can’t be avoided even with reasonable care. (Civil Liability Act 2003 (Qld) s 16) A failure to warn about it can still be a claim, but not usually if the risk was obvious. (s 15) Otherwise, a claim turns on whether reasonable care was taken, and whether that caused the injury.
“At your own risk” isn’t the last word.
Waivers and signs
Signed a waiver? It may not end your claim.
Queensland has no special law, like New South Wales has, that gives recreational waivers extra force. Whether a waiver stops a claim depends on whether it was part of your contract, what it clearly covers, who signed it, and consumer law.
It has to be part of the deal
Terms first shown after you booked and paid, like a form signed on arrival, may not form part of your contract.
It’s read strictly
If a waiver’s meaning is unclear, it’s read against the business relying on it.
Some things can’t be signed away
Consumer guarantees, like the guarantee that a service is provided with due care and skill, generally can’t be signed away. (Australian Consumer Law s 64) For recreational services, a waiver can limit them for personal injury, but never for a significant injury caused by reckless conduct. (Competition and Consumer Act 2010 (Cth) s 139A)
A child’s claim is their own
A parent’s signature generally can’t sign away a child’s own claim.
How it happens
How people get hurt on paid watersports.
A ride being thrilling doesn’t make every injury an obvious risk. A risk created by poor maintenance or operation usually isn’t one. (Civil Liability Act 2003 (Qld) s 13(5))
Thrown by a sharp turn
A tow boat turning hard or speeding up suddenly, throwing riders together or off.
Gear that fails
A towline, harness, winch or parasail canopy that breaks or releases.
Collisions on the water
Riders thrown into the boat, a jetty or each other, or another vessel too close.
A bad parasail landing
A parasail brought down too fast, or onto the boat or water at the wrong moment.
No proper briefing
No life jacket, no explanation of what to do if you fall, or riders unsuited to the ride.
Who may be responsible
Who looks after what on a watersport ride.
More than one party may be responsible. A claim can be made against each.
The operator
Running each ride safely, its boat drivers and crew, and checking riders can take part.
Ask for: The booking, any waiver and an incident report
The equipment maker or importer
A towline, harness, parasail or inflatable with a safety defect. (Australian Consumer Law ss 7, 138)
Ask for: The equipment’s make, model and any recall
A maintenance contractor
Inspecting and servicing boats, winches and gear.
Ask for: Service and inspection records
Straight after
Four things to do now.
- Step 1
Report it before you leave
Ask the crew for an incident report, and note the boat, the time and their names.
- Step 2
Photograph everything
The boat, the ride, the gear and your injuries. Keep your ticket or booking.
- Step 3
Get the witnesses
Names and numbers of other riders, and anyone who saw it from the beach or a boat.
- Step 4
See a doctor
Get treatment, and keep referrals and receipts. Treatment costs may be claimable.
Compensation
What you can claim.
- Pain and sufferingSet on the Injury Scale Value, from 0 to 100. (Civil Liability Act 2003 (Qld) s 61)
- Past and future lost earningsWages and super you’ve lost, and what the injury will cost you in future.
- Treatment costsMedical, hospital and rehabilitation costs, past and future.
- Care from familyIf the care is needed because of the injury and given for at least 6 hours a week for at least 6 months. (s 59)
- Paid care and aidsHelp at home, equipment and changes you need because of the injury.
- Travel and other costsGetting to appointments, and other out-of-pocket costs.
Your own share of responsibility can reduce damages. (ss 23, 24) Medicare and Centrelink may need to be repaid from a settlement.
How a claim runs
From the first call to court, if it’s needed.
No-obligation first consultation
We look at what happened, who may be responsible, and your time limits.
Notice of claim
Part 1 of the notice goes to the operator or the party responsible, within the time limit.
Their response
They must reply within 1 month, and say within 6 months whether they admit liability. (PIPA ss 10, 12, 20)
Evidence and reports
Records, footage, witness statements, and medical and expert reports.
Conference and offers
A compulsory conference, then written final offers if it doesn’t settle. (PIPA ss 36, 39)
Court, if needed
If the claim hasn’t resolved, proceedings start within the time limit.
Costs
What it costs you.
No win, no fee*
You don’t pay our professional fees if your claim is unsuccessful in the ordinary case.
If your claim succeeds, outlays are repaid from your settlement at cost. If your claim does not succeed, we absorb those outlays in most cases, unless you have agreed to pay them under your costs agreement.
If court proceedings have been commenced, a court may also order you to pay a contribution to the other party’s legal costs, but following our advice will NEVER put you in the position of having to pay the opposite party’s legal costs.
We explain this in writing before you sign, and again in detail before any proceedings are commenced.
Fully transparent charges
Our fees
Our professional fees are calculated according to an agreed scale that sets out the charge for each type of work performed — not as a percentage of your settlement.
Out-of-pocket case expenses such as court filing fees, barrister fees and expert reports are charged at cost, with no loading.
Our fee structure is transparent and clearly specified in your written costs agreement.
Uplift or success fee
In some cases, an uplift or success fee applies to reflect the risk we take in conducting your claim on a no win, no fee* basis. Any uplift fee is explained and set out in your written costs agreement before you sign.
No-obligation first consultation
You decide whether to go ahead once you know your options and the likely costs.
Everything in writing
Fees and outlays are set out in a costs agreement before we start.
Questions
Questions people ask.
Possibly. A waiver must be part of your contract and must clearly cover what happened. Terms first shown after you booked may not count. A waiver also can’t exclude the guarantee of due care and skill for a significant injury caused by reckless conduct. (Competition and Consumer Act 2010 (Cth) s 139A)
Not always. A gentle spill may be an obvious risk. But a risk created by how the boat was driven, or by gear that wasn’t properly maintained, usually isn’t an obvious risk. (Civil Liability Act 2003 (Qld) s 13(5))
It depends on the ride. The defence only covers obvious risks of an activity involving a significant degree of risk of physical harm. (Civil Liability Act 2003 (Qld) ss 18, 19) A ride sold as suitable for families or beginners may not be one.
Generally, no. A parent can’t usually sign away a child’s own claim. A child’s negligence claim can generally go to court up to 3 years after they turn 18. (Limitation of Actions Act 1974 (Qld) s 29) But the notice of claim has the usual deadline and some other limits run during childhood, so act early.
A notice of claim is due within 9 months of the injury (or of first symptoms, if later), or 1 month after you first ask a lawyer to act for you and the party responsible is identified, whichever comes first. (PIPA s 9) Court action is generally due within 3 years. (Limitation of Actions Act 1974 (Qld) s 11)
Hurt somewhere else?
Hurt on a watersport ride?
Your first consultation covers which notice applies, your time limits, and what to keep. There’s no obligation to go ahead.
No win, no fee*: You don’t pay our professional fees if your claim is unsuccessful in the ordinary case. If your claim succeeds, outlays are repaid from your settlement at cost. If your claim does not succeed, we absorb those outlays in most cases, unless you have agreed to pay them under your costs agreement. If court proceedings have been commenced, a court may also order you to pay a contribution to the other party’s legal costs, but following our advice will NEVER put you in the position of having to pay the opposite party’s legal costs. We explain this in writing before you sign, and again in detail before any proceedings are commenced. This page is general information, not legal advice about your situation.