23 Aug 2019With reckless behaviour on the rise at a number of Australian surf breaks, surfboard accidents are becoming an increasing cause of painful injuries to surfers and swimmers alike.
So, what are your rights if you are injured by an uncontrolled board? Can you sue the surfer?
Injuries caused by negligence can lead to a lawsuit
In my opinion, if you’re harmed by an out-of-control surfboard, you do have the right to sue the surfer, and a claim for damages would most likely succeed.
And the law doesn’t stop at the water’s edge. If you cause somebody an injury in any situation through your negligence, then you can be liable to pay recompense in the form of damages.
Limit risk of injury to others by taking industry-standard precautions
All surfers, even the very best, fall from their surfboards. The problem arises when the surfer hasn’t sought to control what happens to their board after they fall, and that board injures somebody.
If the surfer has opted not to use a leg rope, there is a significant risk that their surfboard could be launched by waves into the beach like a torpedo. And this out-of-control surfboard could crash into other surfers or swimmers, including children, causing injury.
While there is no law in Australia requiring surfers to use leg ropes, it is well known in surfing circles that they reduce the risk of boards careering out of control, causing surfboard accidents and injuring others in the water.
Do surfers need to exercise a duty of care?
The legal principle of negligence in civil law could apply to surfers who fail to take precautions against “obvious risk”, which is defined in section 5F in the Civil Liability Act 2002 (NSW).
The Civil Liability Act applies in most circumstances where negligence is alleged against a defendant, not just in the surf. In order to establish negligence under this law, a plaintiff would have to prove that the defendant owed a duty of care, breached that duty of care, and caused the alleged damage.
Outlining the principles behind a duty of care, section 5B of the Civil Liability Act states that it would be necessary to establish that the risk was foreseeable, the risk was not insignificant and that a reasonable person would have taken precautions to limit the risk.
When does the risk of injury become the responsibility of the victim?
Under Division 4 and 5 of the Civil Liability Act, a surfer whose out-of-control board has caused injury could have a defence if surfing is considered to be a “dangerous recreational activity”, which is defined in section 5L of the Civil Liability Act. In this circumstance, the victim would need to accept responsibility for the risk of partaking in the activity of surfing.
Taking preventative measures will reduce the risk of causing a surfboard accident
It’s common knowledge and an expectation that every surfer should use a leg rope to reduce the risk of causing a surfboard accident.
If a surfer chooses not to wear a leg rope and their board collides with an ordinary beachgoer and causes injury, I believe a claim for damages against the surfer would most likely be successful.
