Carly McDevitt v James Irwin - [2005] ACTSC 13

CARLY MCDEVITT v JAMES IRWIN
[2005] ACTSC 13 (25 February 2005)

NEGLIGENCE – personal injury – water-skier – fall – alleged negligence of driver of towing boat - no issue of principle
DAMAGES – personal injury – hyperextension injury to back – depression - no issue of principle

Rootes v Shelton (1967) 116 CLR 383
Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460

No. SC 599 of 2002

Judge: Master Harper
Supreme Court of the ACT

Date: 25 February 2005

IN THE SUPREME COURT OF THE  )
  )  No. SC 599 of 2002
AUSTRALIAN CAPITAL TERRITORY  )

BETWEEN:CARLY MCDEVITT
Plaintiff

AND:JAMES IRWIN
Defendant

ORDER

Judge:  Master Harper
Date:  25 February 2005
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the defendant.

The plaintiff in this action is an accountant by profession. She was born on 31 January 1977, and is now twenty-eight. She claims damages for personal injury caused when she fell while water-skiing on the Molonglo River between Fyshwick and Pialligo on 9 February 2001, when she was twenty-four years old. The defendant was at the time of her fall the driver of the towing boat, and also one of the three joint owners. The case pleaded against the defendant is that the defendant towed the plaintiff into the wake of an oncoming boat, causing her to be thrown from her ski into the water. She suffered a hyper-extension injury to the spine.

The plaintiff is a bachelor of commerce in banking and finance, and also has a graduate diploma in professional accountancy. At the time of the accident she was employed by an accounting firm in Belconnen. She was subsequently made redundant, and at the time of the hearing had applied for registration as a tax agent with a view to conducting her own practice.

Liability – the plaintiff’s case

The plaintiff’s evidence was that on the day of her fall, she was telephoned by the defendant and invited to come water-skiing after work. She accepted the invitation, and arrived at the launch area about 5.00 pm. The defendant and the other two joint owners of the boat were out on a ski run when she got there. She waited until they came back, and went out on one of the next runs.

Her evidence was that she had skied about five or six times previously. She had skied once when she was ten years old, but not again until 1997 when she went skiing with a friend from university at Lake Burrinjuck. He recollection was that she had skied with the defendant and her friends about three times previously, including one occasion on the Molonglo River. The three owners of the boat were the defendant James Irwin, Vivan Sykes and Jerome Nash.

When it was her turn to ski, she put on a borrowed buoyancy wetsuit. The plaintiff used a single ski, and said that she usually skied on one ski. The defendant was driving the boat and Vivan Sykes was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carly McDevitt v James Irwin

Details

AGLC: Carly McDevitt v James Irwin [2005] ACTSC 13
Case: [2005] ACTSC 13
Decision Date

CaseChat Overview and Summary

In Carly McDevitt v James Irwin, the plaintiff sought damages from the defendant for injuries she sustained while water-skiing on the Molonglo River. The plaintiff alleged that the defendant, who was driving the boat that was towing her, was negligent in several respects, including that he failed to keep a proper lookout and to warn her of an oncoming boat, causing her to be thrown from her ski into the water. The plaintiff suffered a hyper-extension injury to her back and claimed damages for pain and suffering, medical expenses, and loss of earning capacity. The defendant denied the allegations of negligence and argued that the plaintiff's injuries were not caused by any breach of duty on his part. The court found that the defendant was not negligent in his conduct and that the plaintiff's injuries were not caused by any breach of duty on his part. The court also found that the plaintiff had suffered from pre-existing back problems, which may have contributed to her injuries. The court awarded the plaintiff damages for her injuries, but found that the defendant was not liable for those damages. The court ordered judgment for the defendant.

Orders