James v Surfers Jet

[2015] QDC 233

DISTRICT COURT OF QUEENSLAND

CITATION:

James v Surfers Jet [2015] QDC 233

PARTIES:

WALTER GREGORY JAMES
(plaintiff)

v

SURFERS JET
(defendant)

FILE NO/S:

D128/2013

DIVISION:

Civil

PROCEEDING:

Civil trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

22 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2015

JUDGE:

McGill SC DCJ

ORDER:

Plaintiff’s claim dismissed.

CATCHWORDS:

NEGLIGENCE – Breach of duty - injury to passenger on jet boat ride – whether want of care by driver shown – whether inference of negligence open – whether obvious risk - damages assessed.

Civil Liability Act 2003 s 9, s 13.

Angel v Hawksbury City Council [2008] NSWCA 130 – cited.
Baresic v Slingshot Holdings Pty Ltd [2004] NSWCA 464 – considered.
Blunden v Solomon [2005] NSWCA 52 – cited.
C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 – cited.
Dwan v Farquhar [1988] 1 Qd R 234 – considered.
Fallas v Mourlas (2006) 65 NSWLR 418 – cited.
Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 – considered.
Harwood v Priestley (1997) 6 Tas R 383 – considered.
Houston v Queensland Railways [1994] QCA 529 – cited.
Hume v Patterson [2013] NSWSC 1203 – considered.
Jolley v Sutton LBC [2000] 1 WLR 1082 – cited.
Jones v Dunkel (1959) 101 CLR 298 – applied.
Lambos v Commonwealth of Australia (1967) 41 ALJR 180 – considered.
Medlin v SGIC (1995) 182 CLR 1 – cited.
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 – applied.
Plumb v State of Queensland [2000] QCA 258 – cited.
Roads and Traffic Authority NSW v Dederer (2007) 234 CLR 330 – cited.
Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 – considered.
Rootes v Shelton (1967) 116 CLR 383 – cited.
Rosenberg v Percival (2001) 205 CLR 434 - cited.
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 – cited.
Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437 – cited.
State of Queensland v Kelly [2014] QCA 27 – cited.

COUNSEL:

M E Pope for the plaintiff

The defendant appeared in person

SOLICITORS:

DGM Lawyers for the plaintiff

The defendant was not represented

1. On 26 April 2010 the plaintiff was a passenger on a jet boat operated by the defendant, sitting in the end seat of the back row.  At one point during the ride the plaintiff said that he was thrown into the air, and when he came down on the seat he felt pain in his back.  It emerged that he had fractured a vertebra.  The plaintiff alleges that this injury was caused by the negligence of the defendant in the way the boat was operated, but there was no evidence that any specific thing which should not be done by a jet boat operator was done on this occasion; the plaintiff’s case was essentially one of res ipsa loquitur.  The defendant said that on this occasion he did what he does on every jet boat ride that he conducts,…