Which case won?

The case for the wakeskater
  • The driver dictated the speed of the boat and the direction of travel of the wakeskate.
  • Wakeskating is not an activity that involves a significant risk of physical harm, as long as it takes place in deep water.
  • The driver was aware that the water outside of the designated river channel was very shallow.
  • The driver knew or should have known that if a wakeskater was caused to ride into that shallow water, there was a real risk they would sustain significant injury.
  • The driver’s driving of the boat caused me to ride outside of the perimeters of the channel and collide headfirst with the sandbar.
  • The risk that the driver would drive the boat in such a manner was not obvious to a reasonable person in my position.
  • The depth of the water was clearly marked around the channels. The driver should have registered the depth of the water.
  • The observer in the boat agreed under cross-examination that where I fell was very close to the sand bar and that the water was only waist deep a metre or two from where I fell.
The case for the boat driver
  • I kept the boat and the wakeskater within the bounds of the navigation channel. The rider drifted into shallower water after he fell.
  • The accident occurred at a water depth greater than two metres, which is not too shallow.
  • Wakeskating is a dangerous recreational activity because it involves high speed and a likelihood of falling.
  • The risk of falling and sustaining injury was obvious to a reasonable participant in the position of the wakeskater.
  • Expert evidence shows that it is common for a novice waterskater to fall – indeed it is an inevitable component of the sport.
  • Expert investigators confirmed that there were no hard surfaces or any debris in the water.
  • Expert investigators also confirmed that the risk of injury is very low.
  • The observer in the boat has confirmed that the water depth where the wakeskater fell was above head height. When the observer and I jumped into the river to help the wakeskater after he fell, I was unable to touch the bottom of the river.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case A won. You were right!

How people voted
case a35%
case b65%

Expert commentary on the court's decision

“When you engage in a sport there is a risk of injury. You should take responsibility to assess the level of risk involved, as the court will consider the 'obvious risk' test in the event that you are injured. If this happens, there will be some onus on you as the injured person and the court will consider your history and ability in the activity in question.”
Court rules in favour of wakeskater

In Hume v Patterson [2013] NSWSC 1203 the court ruled in favour of the wakeskater, Martin Hume (the plaintiff), and gave orders that the boat driver, Timothy John Patterson (the defendant) should pay him damages.

There were three main questions considered by the court.

First, did the injury occur within the navigation channel?

Secondly, did Mr Hume strike an object in the river, or the riverbed itself?

Thirdly, if Mr Hume did hit the riverbed, then questions of negligence and causation arise. Was there an obvious risk of a dangerous recreational activity?

Did the injury occur within the navigation channel?

The court heavily considered the opinion, evidence and research of biomechanical experts to determine the depth of the water in various regions.

The court found that Mr Hume would have fallen close to the sandbar and outside the channel of water.

Mr Hume argued that he fell 40 metres to the west of the marker of the channel. The court found that this perception may have been less reliable than the evidence of other witnesses, given that Mr Hume had just endured a traumatic experience.

The trial judge concluded that on the balance of probabilities, Mr Hume would have suffered his injury close to the sandbar and to the west of the channel. The water at that location was concluded to be approximately 1.1 metres in depth, being regarded as shallow water.

An expert, Mr Ellison, who is a competitive wakeskater and coach, outlined that the minimum safe depth of water for wakeskating was 1.5 metres. The wakeskater and the boat driver were both out of this safe range when the accident occurred.

Did the plaintiff strike the riverbed, or an object submerged in the water?

The judge rejected the notion that there was any object which struck Mr Hume.

Dr Andrew McIntosh and Dr Tom Gibson are biomechanical engineers who gave a report on Mr Hume’s spinal injuries and advised that they were caused by “flexion and compression loading of the cervical spine most likely when his head contacted the bottom of the channel”, and not by hitting another object.

The biomechanical engineers also agreed that Mr Hume’s neck was bent in such a way that it had not come into contact with a specific object.

The court also considered evidence from Mr Hume’s mother, who noticed sand in his hair, which would have been from the riverbed.

Negligence, causation and obvious risk of a dangerous recreational activity

The court concluded that Mr Hume had struck his head on the riverbed.

Therefore the court then considered the role of the defendant’s negligence, examining whether there was a duty of care, whether that duty was breached, the risk of injury, causation and the obvious risk of a dangerous recreational activity.

Did the boat driver owe a duty of care to the wakeskater?

To determine whether the boat driver had been negligent, the court first had to identify a duty of care.

The law identifies categories where one person owes another a duty of care. The relationship between the driver of the towboat and the passenger is considered a duty of care category by law.

When a defendant owes a plaintiff a duty of care, by law they are required to exercise reasonable care in preserving the safety of the plaintiff. The law requires the driver of the towboat to take reasonable care to avoid injury to the passenger.

Did the boat driver breach his duty of care?

Once it has been established that there is a duty of care owed, the next question is, was there a breach of that duty? The court considered Part 1A section 5B-5E of the NSW Civil Liability Act 2002. Section 5B addresses the fault for not taking precautions against a risk of harm.

The court outlined that if the boat driver had towed the boat outside of the navigation channel, he was in breach of his duty. As the court had already found this to be the case, it concluded that yes, there had been a breach of duty.

Risk of injury to wakeskater

The risk to Mr Hume was that he might suffer a significant injury, rather than minimal injury, from engaging in wakeskating. The precautions Mr Patterson could have taken were to ensure the depth of the water was not so shallow that it risked causing a significant injury to Mr Hume.

The standard of care used by law is that of the “reasonable person”. The court considers a reasonable recreational boat driver who has engaged in wakeskating as the standard of a reasonable person and asks what this person would do in the same situation.

An experienced driver like Mr Patterson would know that there is a risk of falling into a sandbar when navigating too close to it.

The court found that a reasonable driver would have performed the activity solely within the marked navigation channel and that Mr Patterson was negligent in not staying within the channel.

While the court found that a catastrophic spinal cord injury is unlikely to occur in a water channel of 1.1 metres in depth, it still ruled in favour of Mr Hume.

Causation and the “but for” test

Section 5D of the Civil Liability Act outlines the principle of legal causation. The court considers a threshold called the “but for” test, wherein but for the actions of the defendant the plaintiff would not have suffered any injury. (For more information about the “but for” test, please see “I wouldn’t have injured my back, but for my employer’s negligence.” Which case won?)

The judge found that but for Mr Patterson moving outside the channel, Mr Hume would not have been injured.

The court consulted medical experts to consider the injury and the actions which led to it. The medical experts found that the depth of the water at one metre equated to the risk of a catastrophic injury.

Inherent risks of wakeskating

The court considered the inherent risks of engaging in an activity such as wakeskating and identified a number of such risks.

These include the risk of running into something submerged below the water surface, the risk of injury when falling off the board and the risk of drowning after falling off.

Was the wakeskater aware of an obvious risk?

Section 5L(1) of the Civil Liability Act asks whether the plaintiff was aware of an obvious risk. If so, the defendant will not be liable.

An obvious risk is one which would have been an obvious outcome to a reasonable person, as defined in section 5F. An obvious risk is something of common knowledge, even if there is a low probability of it occurring and the risk is not physically conspicuous.

The court found that there was no obvious risk.

What is a dangerous recreational activity?

A dangerous recreational activity is outlined in section 5K of the Civil Liability Act as a recreational activity involving some significant risk of physical harm.

“Recreational activities” are defined as any sport or activity of enjoyment at a place where people typically engage in sport, leisure or relaxation.

The court did not classify wakeskating as entailing a significant risk of physical harm and therefore it was not considered to be a dangerous recreational activity. Mr Hume did not think at any point that Mr Patterson would drive the boat outside the navigation channel.

Warning to novice wakeskaters

Mr Ellison, a coach and expert consultant on wakeskating, outlined that it is anticipated one will fall off the wakeskate. However, he said that he had never witnessed anyone suffering serious injuries during his time coaching.

Mr Ellison said he had witnessed injuries in the form of sprains, bruises and broken arms, but added that these minor injuries do not affect all participants. He knew of only two significantly serious spinal injuries resulting from wakeskating – one of a skilled performer in Sea World and the other of a ski racing competitor. Both suffered spinal injuries after falling.

Assessing the level of risk involved in sport

When you engage in a sport there is a risk of injury. You should take responsibility to assess the level of risk involved, as the court will consider the “obvious risk” test in the event that you are injured. This test asks if a reasonable person would have assumed there is an obvious risk involved in engaging in the activity.

If this happens, there will be some onus on you as the injured person and the court will consider your history and ability in the activity in question.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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