The Facts
Inexperienced wakeskater towed by boat on Tweed River
On the 18th of November 2007, a man who intended to go wakeskating met a boat driver at a wharf on the Tweed River, in northern NSW, where a boat was moored.
It was intended that the boat driver would drive the boat, along with an observer, while the man would be towed behind, either on a wakeboard or a wakeskate. (In wakeboarding the rider’s feet are attached to the board, whereas in wakeskating they are not.)
The man was initially towed behind the boat on a wakeboard. He got up on the wakeboard several times, falling off twice. The boat was then stopped and the man switched from a wakeboard to a wakeskate. The man had never wakeskated before.
Wakeskater suffers spinal cord injury after falling
The man attempted to get on the wakeskate twice, but fell almost immediately on each attempt. On the third attempt the man had moved between 15 to 100 metres on the wakeskate when he fell forwards, falling into the water headfirst. As a result he suffered C6 tetraplegia, a spinal cord injury which left him a quadriplegic.
Bystanders came to the aid of the man and attempted to bring him to the surface. An ambulance was called.
The man did not have any memory of what occurred immediately after the fall. He could recall there were people who were standing in the water assisting him and that the person nearest to him had water up to his belly button.
A witness who was 12 years old at the time of the incident gave evidence that he saw the accident and its aftermath. He said that the water was waist deep where the man fell and denied that the man had moved in the water or had been moved by anyone else.
Wakeskater takes legal action against boat driver
The wakeskater sued the driver of the boat which was towing him, claiming it had been driven negligently outside the navigation channel into dangerously shallow water, causing the catastrophic injury which he suffered. The boat driver denied negligence.
It was up to the court to decide whether the boat driver was indeed negligent and liable to pay damages to the wakeskater.
Expert commentary on the court's decision
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.