Recreational injury · Scuba diving
Injured on a Queensland dive trip, course or commercial scuba operation?
Dive operators must take reasonable care with gear, briefings, supervision and lookouts. Queensland’s diving rules require a lookout, supervision of divers who aren’t certified, and medical checks for new divers. (Safety in Recreational Water Activities Regulation 2024 (Qld)) 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.
- Ear discomfort on the way down
- Cold water and surge
- Faulty or badly filled gear
- No lookout or headcount
- A new diver left unsupervised
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.
-
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))
-
1month
Their first reply
Within 1 month, they must say whether they’re the right party and whether your notice complies. (ss 10, 12)
-
6months
Liability decision
Within 6 months of a complying notice, they must say in writing whether they admit liability. (s 20)
-
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.
Dived outside Queensland?
A dive interstate or overseas, or a trip booked with a business elsewhere, may be governed by other laws and time limits, so get advice early.
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.
-
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
-
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
-
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 diving.
Diving has some obvious risks. But a risk from gear that wasn’t properly maintained or filled usually isn’t one. (Civil Liability Act 2003 (Qld) s 13(5))
Gear or gas problems
A faulty regulator, an empty or contaminated tank, or gear that wasn’t checked.
Poor supervision
New or uncertified divers left without an instructor, or groups too large to watch.
Left behind or lost
No headcount before the boat moves, or no lookout watching the water.
Health checks skipped
No medical declaration taken, or warning signs not acted on before a dive.
A rushed ascent
Dive plans or ascents that ignore safe limits.
Who may be responsible
Who looks after what on a dive.
More than one party may be responsible. A claim can be made against each.
The dive operator
The boat and gear, lookouts, headcounts and dive plans, and the instructors and guides it uses.
Ask for: The dive safety log and any incident report
An instructor or dive guide
Briefings, supervising divers who aren’t certified, and decisions underwater.
Ask for: Their name and certification
The gear maker or importer
A regulator, gauge or buoyancy vest (BCD) with a safety defect. (Australian Consumer Law ss 7, 138)
Ask for: The gear’s make, model and serial number
Straight after
Four things to do now.
- Step 1
Report it straight away
Tell the crew, and note the dive site, the boat and the times.
- Step 2
Keep your dive records
Your logbook, dive computer data and the booking.
- Step 3
Get the witnesses
Names and numbers of your buddy, the crew and other divers.
- 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.
If your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing 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.
Capped at 50%
Our professional fees are capped at 50% of what you recover, after refunds and outlays. (Legal Profession Act 2007 (Qld) s 347)
Questions
Questions people ask.
Possibly. A waiver must be part of your contract and must clearly cover what happened. It 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) A medical declaration is a safety check, not a waiver, though some forms include both.
They include medical checks for new divers, a lookout while people are in the water, instructor supervision of divers who aren’t certified, headcounts and dive safety logs. (Safety in Recreational Water Activities Regulation 2024 (Qld)) A breach usually doesn’t give a claim on its own, but it can be evidence that reasonable care wasn’t taken.
It may be. But the defence only covers its obvious risks, and only for the person diving. (Civil Liability Act 2003 (Qld) ss 18, 19) A risk from gear that wasn’t properly maintained usually isn’t obvious. (s 13(5))
Yes. The operator must still take reasonable care with the boat, gear, briefings, lookouts and headcounts, even for certified divers.
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 dive?
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*: if your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing before you sign. This page is general information, not legal advice about your situation.