(1) Judgment is entered for the plaintiff in the sum of $92,585.
(2) Interest is payable on part of the judgment sum, in the amount of $310.95.
(3) The defendant is to pay the plaintiff’s costs.
(4) If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 3 is stayed until further order.
Catchwords:
CIVIL LAW – Negligence – Personal injury – water sports accident involving motorboat towing a child in an inflatable tube with a pre-existing undiagnosed spinal condition – characterisation of risk – whether sufficient precautions taken to guard against risk of back injury – whether water sport of tubing a dangerous recreational activity – whether risk of injury obvious to a twelve-year-old child
LIMITATION OF ACTIONS – Personal injury – whether proceeding out of time – where plaintiff was twelve years old at time of alleged breach – where plaintiff required benefit of legal advice and specialist opinion in order to determine whether injury was sufficiently serious to justify the bringing of a cause of action – action brought within time
[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.
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AGLC
Glover v Fuller (No 2) [2023] ACTSC 12
Case
[2023] ACTSC 12
Decision Date
CaseChat Overview and Summary
In the case of Glover v Fuller (No 2), the plaintiff, Glover, sought damages for injuries sustained in a water sports accident. Glover was twelve years old at the time of the accident, which occurred when he was being towed behind a motorboat in an inflatable tube. Glover suffered injuries to his spine, which was undiagnosed at the time. The defendant, Fuller, was the operator of the motorboat. The primary legal issue was whether Fuller had taken sufficient precautions to avoid Glover’s injury and whether the risk of injury was obvious to a twelve-year-old child.
The court had to decide whether the sport of tubing was inherently dangerous and whether Fuller had adequately protected Glover against the risk of injury. The court found that while tubing could be considered a dangerous recreational activity, Fuller had taken reasonable precautions, including ensuring that Glover wore a life jacket. However, the court determined that the risk of injury was not obvious to a twelve-year-old child. The court also considered whether Glover's pre-existing undiagnosed spinal condition contributed to his injuries.
The court held that Glover’s claim was not statute-barred as he was a minor at the time of the accident and required the benefit of legal advice and specialist opinion to determine the seriousness of his injury. The court found that Fuller was negligent and awarded Glover damages of $92,585, with interest of $310.95 on part of the judgment sum. Fuller was also ordered to pay Glover's costs. The judgment provides clarity on the duty of care owed by operators of motorboats towing individuals in inflatable tubes and the considerations in assessing the obviousness of risks to minors.
Orders
Orders of the court
(1) Judgment is entered for the plaintiff in the sum of $92,585.
(2) Interest is payable on part of the judgment sum, in the amount of $310.95.
(3) The defendant is to pay the plaintiff’s costs.
(4) If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 3 is stayed until further order.