Kishore Rohra v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) and Anor -(13/158497); Shivani Talwar v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) and Anor - (13/158533); Brenden..

[2016] NSWDC 78

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kishore Rohra v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) & Anor -(13/158497); Shivani Talwar v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158533); Brenden John Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158536); Marta Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158541); Adam Barnes v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158547); Vanessa Pillinger v Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) ) & Anor - (13/158553) [2016] NSWDC 78
Hearing dates:	7 - 15 March 2016
Decision date:	13 May 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for the plaintiffs. For Orders see [286]
Catchwords:	Torts; negligence; contributory negligence; breach of contract; Trade Practices claim; tour on motor vessel; “dangerous recreational activity”
Legislation Cited:	Australian Consumer Law Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth)
Cases Cited:	Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139 Campbell v Hay [2014] NSWCA 129 Derrick v Cheung [2001] HCA 48 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Falvo v Australian Oz Tag Sports Association [2006] NSWCA 17 Jones v Dunkel (1959) 101 CLR 298 Lormine Pty Ltd v Xuereb [2006] NSWCA 2000 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361 Nominal Defendant v Smith [2015] NSWCA 339 Paul v Cooke [2013] NSWCA 311 Vreman and Morris v Albury City Council [2011] NSWSC 39
Category:	Principal judgment
Parties:	Kishore Rohra, Shivani Talwar, Brenden John Barnes, Marta Barnes, Adam Barnes and Vanessa Pillinger (Plaintiffs) Ox. Two Pty Ltd trading as Ocean Extreme (ABN 46 115 919 509) (First defendant) Jetboats Australia Pty Ltd t/as Harbour Jet (ABN 70 123 849 954) (Second defendant)
Representation:	Counsel: B Dooley SC (All Plaintiffs) with G Hickey and K Balendra (in 13/158497) R Cavanagh SC (First and Second Defendants)   Solicitors: Slater & Gordon Lawyers McCulloch and Buggy
File Number(s):	13/158497, 13/158533, 13/158536, 13/158541, 13/158547, 13/158553
Publication restriction:	Nil

Judgment

Introduction

1. Each of the six plaintiffs claim damages for personal injuries suffered by them when they were passengers on a motor vessel operated by the first defendant, as agent of the second defendant.

2. Each of the plaintiffs had purchased, or had purchased for them, tickets sold by the second defendant to engage in a jet boat ride on Sydney Harbour. Each was advised on 22 May 2010 that the jet boat operated by the second defendant was unavailable, but that an alternative vessel operated by the first defendant, and known as “Extreme II”, was available.

3. During the harbour tour, as the vessel was approaching the Sydney Heads in Obelisk Bay, the plaintiffs suffered injury in the circumstances described below. The plaintiffs’ causes of action are brought in negligence, as damages for breach of contract, and alternatively, as damages pursuant to the Trade Practices Act 1974 (Cth) (“TPA”), for breach of warranty pursuant to s 74 of the TPA.

4. The hearing, which took place over 7 days from 7 March 2016, was limited to the issues of primary liability and contributory negligence.

The defences to the plaintiffs’ claims

5. The defendants in each case had similar interests and were represented by the same legal practitioners and counsel. The Amended Defence to the Amended Statement of Claim in each matter, denies negligence, breach of contract, and breach of any imputed guarantee pursuant to s 60 of the Australian Consumer Law.

6. The defendants also plead reliance on various sections of the Civil Liability Act 2002 (NSW) (“CLA”), including:

1. “That the risk of harm posed by the harbour tour was an obvious risk; and

1. Pursuant to s 5G of the CLA, the plaintiff is presumed to have been aware of the risk of harm; and

2. The plaintiffs voluntarily assumed the risk of harm; and

3. Pursuant to s 5H of the CLA, the defendants did not owe a duty of care to the plaintiffs to warn of the risk.”

7. In the alternative, the defendants plead that any risk of harm posed by the harbour tour was an inherent risk for the purposes of s 5I of the CLA, whereby they are not liable in negligence for harm suffered by the plaintiffs as a result of the materialisation of that inherent risk.

8. Further, in the alternative, the defendants pleaded that at the time of the injuries the plaintiffs were involved in a recreational activity for the purposes of Pt 1A Div 5 of the CLA, and:

1. “The plaintiffs were provided by the defendants with a risk warning regarding the risks involved in the harbour tour and;

2. Pursuant to s 5M of the CLA, the defendants did not owe a duty of care to the plaintiffs in respect of the activities involved in the harbour tour.”

9. Further, and in the alternative, the defendants have pleaded reliance on s 5N of the CLA, and that the contract was subject to an express term that all passengers took part in the harbour tour at their own risk. In those circumstances, other than the gross negligence of the skipper as proved by a court of law, neither of the defendants or either of them were not liable for any injuries suffered by any of the plaintiffs. Further, the defendants plead that the activities involved in the harbour tour constituted dangerous recreational activities for the purposes of s 5L of the CLA, and the risk which resulted in the harm allegedly suffered by each plaintiff was an obvious risk of that dangerous recreational activity, and pursuant to s 5L, the defendants are not liable for the harm suffered by each of the plaintiffs.

10. Further, the defendants plead contributory negligence on the part of each plaintiff. The claim is particularised as follows:

“Particulars of Negligence or Contributory Negligence

(a) Failing to take any or any reasonable care for her (their) own safety.

(b) Failing to keep a proper lookout of swell conditions in front of the vessel.

(c) Failing to follow instructions as to how to ride safely in the vessel.

(d) Failing to heed warnings as to the risk associated with the harbour tour.”

11. The defendants have also pleaded a failure to mitigate loss by each plaintiff by failing to take reasonable steps to obtain appropriate medical treatment.

12. In his final submissions, learned senior counsel for the defendants conceded they owed the plaintiffs a duty to take reasonable care for their safety.

The issues to be determined

13. The issues to be determined are therefore:

1. Does any provision of the CLA relied on by the defendants absolve them from that duty of care?

2. Did the defendants breach their duty of care, i.e. was the driver of the vessel “Extreme II” negligent in the way he managed or controlled the vessel in the prevailing conditions?

3. Was there a contract between each of the plaintiffs and the defendants, or any of them, and if so, what were its terms?

4. Was there a breach of the contractual terms?

5. Did s 74 of the TPA apply?

6. If so, was there a breach of s 74 of the TPA?

7. Did any of the plaintiffs contribute to their own loss or injuries by way of their own contributory negligence?

The plaintiffs’ evidence as to liability

Evidence of Kishore Rohra

14. Mr Kishore Rohra purchased four tickets for a jet boat ride through a website known as “Scoopon”. He intended to take two relatives and his wife and a booking was made for them to do so on 1 May 2010. That booking was cancelled and a further booking was made on 22 May 2010. On that occasion Mr Rohra invited two friends Ms Shivani Talwar and her husband Mr Avikesh Avikesh to join him and his wife on the jet boat ride.

15. On 22 May 2010 they arrived at the Darling Harbour dock. On the upper level he spoke to a man employed by the defendant and presented his voucher. He was told to pick out a spray jacket and the four of them did so. After 20 minutes or so the group proceeded to the lower dock or pontoon where they stood a metre or two away from the boat that had arrived. An employee of the defendant said to the group of people assembled on the dock:-

16. “There’s a lifejacket under your seats, use it if you need to use it. Second thing is, if you need a less bumpy ride sit on the back and if you need more bumpy and more adventurous ride sit in the front.”

17. Next he said, “Make sure you always keep your leg up on the seat and don’t put your leg down,” and he said, “go ahead, and there’s a form there’s a, a form which, which, which you need to sign before you get onto the boat.”

18. Mr Rohra then identified his signature as that being number 21 on Exhibit B. He was the last person to sign the document which was on a clipboard which was passed from person to person.

19. Mr Rohra said there were no further instructions given by any of the crew. There were two crew members on board, a driver and a deck hand.

20. Mr Rohra gave evidence that the boat had left Darling Harbour and proceeded at a slow speed past the Opera House and the zoo, where it accelerated to a speed of between 50 and 70 kilometres per hour.

21. Mr Rohra described the waves in the harbour as “smooth waves”. In the inner harbour he described those waves as having a height of “four or five metres”.

22. He then described waves near the Opera House as being small-medium, and as they travelled towards the heads the waves got bigger. Mr Rohra described the waves when the boat first commenced to accelerate as being from zero to two metres and then increasing from two metres to five metres. He was not able to observe the waves because he was at the back of the boat but was giving an indication of the size of the waves from feel. He was seated in the back row on the left hand side of the boat. Mr Rohra’s evidence in relation to the incident in which he was injured was as follows:-

“Q: What happened in relation to this wave?

A: At one point in time we came to a really big wave and we actually had got into the air and then fell onto the water.

Q: If I can ask you about the really big wave. In terms of the boat was it going at, was it slowing down as it went up the wave or was it going the same speed or was it going faster as it went up the wave, what was it?

A: It went faster.

Q: It was accelerating?

A: It was accelerating.

Q When you then, as it went over the wave, what do you say happened to the boat?

A: It was airborne for a few seconds and everyone in that boat including myself, I felt like I’m in, in the air and then suddenly you had jerk and, yeah, and I, and I fell on my back on the iron rod.

Q: Is there much of an impact?

A: It was a very big impact.

Q: What was the feeling that makes you say that it was a big wave, what feeling did you get?

A: Because I was in the air for a few seconds, for at least two, two and a half, three seconds.”

23. Mr Rohra then described the boat inclining up the wave in an upward direction and described an incline of “30 to 45 degrees”. He estimated the speed at which the boat went over the wave as between 50 to 70 kilometres per hour.

24. He did not go to visit the Harbour Jet website at all prior to booking the ride.

25. In cross examination, Mr Rohra agreed that he was not a “boating person”. He agreed that the estimate he had given as to the height of waves were an estimate only and he at no time prior to being in the witness box had been asked to bring to his mind what the height of the waves might have been. Similarly he had no experience in estimating the speed of boats and agreed that his evidence in relation to the speed of the boat was a “bit of a guess”, compared to a car. He did not agree that it was completely inaccurate but said it was his best estimate. He agreed that as he was sitting in the back of the boat he could not see the wave.

26. The plaintiff identified the two Scoopon vouchers which became Exhibit C. Prior to purchasing the tickets he had looked at the Scoopon website and the description of the trip. He agreed that the description included “heart-stopping speeds” and that meant going really fast and doing turns at full speed, and stopping quickly. He agreed that in doing those sort of manoeuvres he would be thrown from one side to the other.

27. Mr Rohra said he expected to be going on a very fast and adventurous ride, and an adventure ride. He expected being moved around and bumped on the boat but did not expect to be twisted because in his previous experience there was a “nice soft cushioned harness and a nice cushioned seat”.

28. Mr Rohra agreed that before the boat left he could see that the seats did not have a harness. He did not agree that he knew there was a risk that he could twist his spine “or something like that”. He did think there could be a risk of some kind of injury but not an extreme injury.

29. Mr Rohra disagreed with the proposition that he expected the boat to become airborne. He denied they were given a safety briefing at all other than the conversation in which they were told there was a less bumpy ride at the back of the boat. He further denied that they were told that if anyone was pregnant or had any back or similar type of problems they should not go on the ride. Mr Rohra also denied that at the end of the safety briefing they were told that they should “now go and read the conditions set out on the sign”. He had never seen the sign with terms and conditions on it.

30. Mr Rohra acknowledged that Exhibit B contained the heading “Assumption of risk signature form”, however, he gave evidence that he did not read the document but wrote out his name and signed it. He referred to it as an “attendance sheet”. Mr Rohra said that it was similar to an excel spread sheet.

31. It was put to Mr Rohra that the Extreme II ride was not actually as adventurous as the boat ride he originally booked on. He was not aware of that. He was asked:-

32. “Q: Because it doesn’t do fishtails, it doesn’t do 270 spins, I suggest to you sir. Are you aware of that or not?

33. A: I wasn’t.

34. Q: In case it be suggested through your evidence that somehow you’re being upgraded for a more dangerous or more adventurous ride, I want to suggest to you that in fact it’s the opposite. It’s the less adventurous ride you were put on sir. Are you aware of that or not?

35. A: No because what was said was bigger and better. Never ever explain what the definition of what you are getting into.”

36. Mr Rohra said he knew to hold onto the metal bar in front of him because the person sitting in front of him was doing that.

37. His evidence was, “the first person would have been given the instruction and then you start copying what’s in front of you”. He agreed he was told to stay seated at all times and he did not stand up at all during the ride.

38. Mr Rohra agreed that from time to time the crew member would look behind him to see if everything was okay. Up until the incident nobody expressed any concerns. The boat had become airborne on more than one occasion. On this occasion it took longer for the boat to come down, two to three seconds. He denied exaggerating about that. He was asked:-

39. “Q: it mightn’t even have been airborne at all sir, mightn’t it?

40. A: It was definitely two to three seconds.”

41. Mr Rohra gave evidence that he was screaming out after the incident because a lady was bleeding from her mouth. Within a few seconds he realised that his back was broken and painful.

42. Mr Rohra gave evidence that before he got on the boat he was aware that the boat would be going over waves which he described as “normal waves”. He was aware that as the boat went over waves the front of the boat would likely be in the air, and also that depending on the size of the wave, more of the boat would be in the air. He was certain that the boat became airborne.

43. He denied that any of the passengers were standing up at the time of the incident and did not hear any of the Barnes party tell each other it would be a good idea to stand up as the boat was going over waves. Finally, he said the speed was between 50 and 70 kilometres per hour and an average of 60 kilometres per hour.

44. In re-examination Mr Rohra identified by reference to photograph in Exhibit A, page 41 that the exit spot from the boat was similar to the entry spot shown in photograph 41.

Evidence of Mrs Harpreet Kaur

45. Mrs Kaur was the wife of Mr Rohra. Using the voucher her husband purchased from Scoopon, Mrs Kaur made a booking for the jet boat ride on 1 May 2010. That booking was cancelled and another booking made on 22 May 2010. She gave evidence that when they arrived at the Darling Harbour wharf, they were given spray jackets and were then asked to go down a level to where the boat was moored.

46. On the dock there was a conversation as follows:-

47. “A: So what I remember was they say if you are pregnant and have back injuries then this boat is not for you, you should not board the boat and about the life jackets as well, that they’re underneath the seats.

48. Q: Anything else?

49. A: That’s what I remember.

50. Q: Did they tell you how to hold on, or how to sit or anything like that?

51. A: Yes, yes.

52. Q: What did they say?

53. A: They said you have to hold onto the front of your seat and you, your legs should be touching the ground. I remember, no, yeah.

54. Q: Is there any other discussion than that?

55. A: No.

56. Q: Then when you got on the boat was anything said?

57. A: When we were getting into the boat, they said if you want a rough, sorry a steady ride, then it’s better you sit at the back of the boat, but if you want a more adventurous ride then at the front of the boat, so we decided to sit at the back.”

58. When asked whether anything was said before the boat sped up after it passed the Opera House, Mrs Kaur said:

59. “A: Yeah they, I heard a man, probably the helper in the boat, saying ‘Oh get ready for the fun.’”

60. Before the accident, Mrs Kaur gave evidence that the waves the boat was going over were “roughly a metre, metre and a half”. When asked what sort of speed the boat was doing she answered:-

61. “A: I don’t know exactly, but roughly 60-70.”

62. As the boat approached the wave, Mrs Kaur gave evidence that it accelerated towards the wave. When asked what happened, she said:

63. “A: So we went up the wave and then down. That was the first wave, then there was another wave after that and that’s I think when everyone got hurt, the second.”

64. When asked how big that wave was she said “roughly two metres”.

65. Mrs Kaur gave evidence that there were no problems going over the first two waves, although after the second wave it was a little bit bumpy. The next wave was higher, “roughly three metres”. Mrs Kaur indicated that the boat climbed steeply at an angle of 45 degrees. When asked what happened when the boat went up the wave she said:-

66. “A: So we all were up in the air for a few seconds and I’m telling about my stuff and I landed back on my seat.

67. Q: Did it land with much of a bang, or what was it?

68. A: Yes.

69. Q: Was it a small, large, whatever?

70. A: It was a big bang.”

71. In cross examination, Mrs Kaur agreed that she had no idea how to estimate speed on water, or the height of waves. She gave a statement to police within 10 days of the incident in which she told the police that she didn’t have any idea what the actual speed of the boat was.

72. Mrs Kaur had never been on a speed boat or a jet boat and had never been asked to estimate the speed at which a boat was travelling before.

73. Mrs Kaur agreed that she did not see the wave before the boat went over it. She was asked:-

74. “Q: If you didn’t see the wave before the boat went over it, you’d be unable to estimate the height of the wave, would you agree with that?

75. A: When we were up in the air, I’m just predicting the height at that point in time.”

76. She agreed she said in paragraph 7 of her police statement, “I don’t think the driver did anything wrong”. She agreed that was her view at the time, that the driver was not driving aggressively or in any way extreme. She believed there was a problem with the seats.

45. Mr Kaur agreed that she believed that they would be going fast, and that it would be a thrill ride. She agreed that the boat would be jumping over waves however she said “small waves”. As to the safety briefing, Mrs Kaur did not agree that the representative of the company told the group about the boat, that it had 900 horsepower motors and that it would travel very fast over waves. She did remember him saying that it had a top speed of around 80 kilometres an hour. She denied that he said that it could get airborne going over waves. She agreed that they were told that it was important to hold on but not because the boat would be going fast over the waves. She denied that they were told that they had to read the conditions of the ride. She also denied that he pointed to the sign on which the conditions were set out in respect of the form Exhibit B. She was asked:-

46. Q: In any event he told you that once you read the conditions you’d be required to sign a form didn’t he?

47. A: He said ‘You have to sign the form,’ and the form was given to me; not, nothing to do with the conditions.”

48. She believed it was an attendance sheet and no one told her that she should read the words “Assumption of risk signature form”.

49. Mrs Kaur gave evidence of the risks she believed were involved in going for the boat ride were:-

50. “A: That you should not be pregnant and should not have any back injuries and it will be-there will be spins, turns and water splashing…”

51. As to the incident, Mrs Kaur was challenged as to her evidence that the boat became airborne, on the basis that she did not tell the police that. She adhered to her evidence. She said that it was in the air for a couple of seconds, but she did not tell the police.

52. There was no re-examination.

Evidence of Vanessa Pillenger

85. Ms Vanessa Pillenger attended on 22 May 2010 with her boyfriend Mr Brendan Barnes to celebrate the birthday of Brendan’s younger sister, Bridgette. Bridgette’s mother purchased tickets for the family to go on a jet boat ride. She gave evidence that, after they arrived, they were asked to sign an attendance form which was on a clipboard. She identified her signature on Exhibit B. They were given spray jackets and then moved to the lower dock level to get on the boat.

86. Ms Pillenger gave evidence that when they got on the boat one of the persons from the company saidm “we’ll be heading to - approaching the heads and if it gets bumpy hold onto the bars in front of you.”

87. “Q: Were there any other instructions given?

88. A: No.

89. Q: Were there any instructions about whether you had any problems or health problems or anything like that?

90. A: No.

91. Were there any instructions about whether you should go and read some forms or look at signs or anything like that?

92. A: No.”

93. Ms Pillenger gave evidence that when the boat passed the Taronga Park Zoo it accelerated to 60 kilometres per hour and continued up the harbour. Prior to the incident in which she was injured, she gave evidence that the boat went over three to five waves of less than one metre. As the boat approached the final wave, it accelerated above 60 kilometres oer hour. She could see the wave and gave evidence that the boat rose up at an angle of 40 degrees over it. Once it hit the crest of the wave “we were airborne”. She said:

“A: It felt like we were above the water, so as we were going up, it felt like five seconds airborne and then it hit the- we slammed- the boat slammed back into the water.”

94. Ms Pillenger sustained a fractured eighth thoracic level disc. In cross‑examinationm Ms Pillenger agreed she had never been on a speed boat, and in estimating the speed of the boat she would be guessing. She also had no experience in estimating the height of waves. Ms Pillenger agreed that she did not have a recollection of everything that occurred on the wharf before the boat arrived.

95. She agreed that the safety briefing was given by a person standing on the boat whilst the group was standing on the wharf. She denied that he gave a general description of the boat and that it had a 900 horsepower engine. She denied that he told them that it travelled very fast over waves, and said she did not know that before she got on the boat.

96. Ms Pillenger agreed that the person said that they would be going fast over waves but she did not remember being told that it had a top speed of about 80 kilometres per hour.

97. She agreed that they were told to hold on and shown to hold a bar in front of them. They were shown how to sit with their legs straddling the seats. She did not recall hearing him say that they were not to stand up. She denied that they were told that if anyone was pregnant or had any back problems that they should not go on the ride. She then said that she was sitting on the boat whilst he was giving the safety briefing. When asked about whether she was a bit hazy about the briefing she said:

98. “A: I was sitting right at the back, like I said, so I couldn’t hear most of the time”.

99. Ms Pillenger said she expected that they would be going over the waves at speed, and that she knew there was a risk that they would be bumped around on the boat. She denied that they were told that they would have to go and read the conditions set out on the sign and that once they had read those conditions they had to sign the “Assumption of risk signature form”. She didn’t read that form (Exhibit B) but just signed it. She agreed that no one said it was just an attendance record.

100. As to the incident, it was her best estimate that the boat went up the wave at an angle of 40 degrees. She agreed that she could not see whether there was any water in contact with the bottom of the boat, and that it was the perception she had that the boat was above the water. She described that as a long time and said “It felt like it was five seconds”. When put to her that the boat never actually got airborne she saidm “I was certain it was airborne”.

101. In re-examinationm she described an uncomfortable feeling in her stomach as being the feeling of being airborne, “it was like a rollercoaster ride”. She had not expected to go over big waves and there was no mention of how big the waves were going to be. She said “I just expected little waves”.

Evidence of Mrs Shivani Talwar

102. Mrs Shivani Talwar was married to Mr Avikesh and they were friends of Mr Rohra and Mrs Kaur. They were invited to go on the boat trip on 22 May 2010 and arrived at Darling Harbour with them. When they arrived they were given a spray jacket to put on by one of the crew and then they proceeded down to the lower level where the boat was and were asked to sign a document. She identified her signature on Exhibit B and said she did not read the form. They then got on the boat and the only thing they were told was that it was “going to be a little bumpy at the front and less bumpy at the back”. She asked one of the crew “Do you have a life jacket?” and he told her, “No, you just need to hold onto the iron bar in front of you”.

103. Once the boat got into open waters, she estimated its speed at around 100 kilometres per hour. She estimated the waves at more than two metres.

104. When asked what happened she said they hit a big wave which was double the ones that she had seen before, “so maybe four metres”. The boat was accelerating up the wave and hit the wave “very bad and we were are the air”. When asked how long they were in the air she said, “a couple of seconds”. She gave this evidence:-

105. “Q: Okay, and then what happened next?

106. A: Then we hit it really bad to the surface and that was, that was when everybody, when, we’d been hit, I actually hit my face on the iron bar that I was holding onto it and it was bad, I’m and I mean really bad. So bad, the driver did not stop. I’m bleeding, and then I just know that this is- and I’m just, and then that’s the time when I shut my eyes and I’m just screaming at them to stop and my husband realised that I’m, I’m hurt, because he saw me bleeding. Everybody tells the driver to stop, that’s when he stopped.”

107. In cross examination, Mrs Talwar said she expected the boat to be going fast, but not very fast. She had read on the website that it could go 70 kilometres per hour. She expected that the boat would be jumping waves and she expected it to be “a little bumpy”. Mrs Talwar was shown her police statement in which she stated that she had her eyes closed for the ride. She also stated, “and could feel the boat was going fast but I don’t know what speed”. Her estimate of 100 kilometres per hour was an estimate, not an exact speed.

108. She said that she didn’t tell the police those things, they put that in their own words. She explained that she had wind in her eyes.

109. Mrs Talwar agreed that her eyes were closed at the moment of impact. She agreed that her estimate of the size of the wave as four metres was only an estimate, but would not agree that it was an exaggerated guess.

110. Mrs Talwar did not read the sign near the ticket booth. When asked whether there was a safety briefing, she said “No, nothing at all”. She said once the boat arrived, “They told everyone to sign the document and hop on”. She denied there was a man standing on the boat who gave a safety briefing to the group while they were on the wharf. She denied the boat was described as having a 900 horsepower engine. She denied they were told the boat would become airborne as it went over the waves and that it had a top speed of 80 kilometres per hour.

111. She denied that they were physically shown how to sit in their seat and how to hold on. Nor were they told the ride was not suitable for anyone who was pregnant or had back problems.

112. Mrs Talwar denied that the person giving the briefing pointed to a sign on the level above and said, “you should go and read that sign”, and “once you’ve read the sign you should sign the assumption of risk form”.

113. There was no re-examination.

Evidence of Mr Avikesh Avikesh

114. Mr Avikesh Avikesh gave evidence that he had seen the jet boat on the harbour prior to May 2010. He and his wife were invited by their friends to go on a jet boat ride on 22 May 2010 and arrived at the Darling Harbour wharf with their friends. They were given a spray jacket and were next handed a clipboard to sign their names. Mr Avikesh identified his signature on Exhibit B. No one explained what it was they were asked to sign.

115. There was no discussion or talk before they got on the boat. His wife asked about life jackets and someone told her to hold the bar. They said the boat was going to be high speed.

116. Mr Avikesh described the boat as speeding up as it passed the Opera House.

117. When they got to an area where there were waves, the boat went up a first wave which was 3 metres in height. The boat was travelling at 80 to 100 kilometres per hour and when it went over the wave it hit the bottom very hard. The boat then accelerated again and became airborne for three to four seconds. When asked to estimate the height of that wave he said it was “very high”.

118. In cross examination, Mr Avikesh agreed that he expected the boat would be going at high speed which he described as 60 kilometres per hour. He had looked at photographs on the website of the boat and not read any of the content. He agreed it would be an adventure ride. He gave this evidence:-

119. “Q: You answered in response to my question that you knew there was a risk of some sort of injury didn’t you?

120. A: I thought it’s, it’s going to be very safe.

121. Q: What did you think the significance of having seatbelts or harnesses was?

122. A: I think that, that saves you if something happens and you need, like, to safety measure I think.

123. Q: Did you think the presence of seatbelts would in some way prevent you from suffering some risk of injury did you?

124. A: 100 per cent and we were airborne.”

125. Mr Avikesh was asked if, when he turned up and saw there were no seatbelts, whether he formed the view that there was some risk of being thrown around and suffering injury, which he denied.

126. Mr Avikesh denied that one of the staff members of the boat company gave a safety briefing. He disagreed that took place when they were on the wharf, and the staff member was on the boat. He denied being told details of the boat, including that the boat had a 900 horsepower engine and that it would travel very fast over waves. He further denied that he heard anyone tell them the boat had a top speed of 80 kilometres per hour and it could get airborne as it went over waves.

127. Mr Avikesh denied that he was told that it was very important to hold on. Rather the crewman said, “just hold this bar”, referring to the top of the seat. He sat in the back of the boat because he thought there would be less impact and his wife was sitting there.

128. With respect of Exhibit B, he said he did not read the form before he signed it, and that no one from the company asked him to sign it. It was passed to him and he passed it onto someone else.

129. Mr Avikesh agreed that he told the police that as they left the wharf the driver said, “We’ll be doing 220 kilometres an hour”. It was put to him the driver never said that and he said that he told the police that the driver said they would be doing a high speed. He agreed that he told the police that when the driver went over the wave in question he was going very fast but he did not know how fast. He said that the driver “lost the plot”. Mr Avikesh told the police the boat was going twice as fast. It was put to him that was not true which he denied, saying, “it was- even more than twice”. He was also asked the question:

130. “Q: You don’t know whether the boat got airborne do you?

131. A: It was airborne.

132. Q: The boat wasn’t going nearly as fast as you suggest it was.

133. A: It was very high speed.”

134. There was no re-examination.

Evidence of Mr Adam Wayne Barnes

135. Mr Barnes attended on 22 May 2010 with other members of his family. They were handed spray jackets and made their way down to the deck on the lower level. He identified his signature on Exhibit B which he said was on a clipboard. A member of the staff said “Has everyone put their names on this?”. He then said:

136. “A: People individually lined up and went to the guy with the clipboard”.

137. He did not read the piece of paper before he signed it. He described it as an attendance sheet. The only instruction given once they had boarded the boat was to “lean forward”. No other explanation or briefing was given. Once the boat passed the Opera House it proceeded towards the Sydney Heads. When asked about the speed of the boat at that time he said:

138. “A: We accelerated and we were going really, really fast. But before we got to that point, we did some turns and then when we were heading out to the heads the swell picked up and we got going and we got around, if I’m true to my statement, it was around 60 miles per hour.”

139. As the boat approached the heads the waves got bigger. The boat accelerated to 80 to 100 kilometres per hour. He based that estimate on his experience on his father’s boat.

140. Mr Barnes estimated the height of the waves that the boat was travelling over as two and a half to three metres. He had experience on boats and with surfing.

141. They came to a set of waves and he estimated the first wave to be one and a half to two metres. The boat went over that and the next wave was bigger, and he estimated the height to be two and a half metres. The boat accelerated up the wave and he was asked:-

142. “Q: Then what happened to the boat as you got to the top of the wave?

143. A: Well we got to the top of the wave and we launched.

144. Q: When you say launched what happened to it?

145. A: Well, we went over the wave and we got airborne, that would have been four to give seconds. We’ve hit the desk and then the incident happened.”

146. Mr Barnes sustained fractures to two discs in his back. He was asked whether the impact was a significant impact with the water and answered:-

147. “A: It was, it was the biggest pain I’ve ever felt and it was a really large impact, like nothing you’d ever believe.”

148. In cross examination, Mr Barnes denied there was any briefing or that they were told that the boat would get airborne. He was asked about his experience on his father’s boat in Pittwater. He had not been on a jet boat ride before. He described the waves he saw coming towards the boat as “a large set”. He agreed that he stood up as he was going over the wave as he had got that advice from somewhere but did not know who told him. It was not from the crew. When asked if it was a member of his family who told him to stand he said he was not sure.

149. There was no re-examination.

Evidence of Mrs Lynnette Barnes

150. Mrs Barnes was the mother of Brendan and Adam Barnes. She purchased tickets for the jet boat ride to celebrate the birthday of her 15 year old daughter Bridgette. She did that on the jet boat website. When booking the tickets, she asked the salesperson “Is the ride safe?”, and that person answered, “Yes.” Mrs Barnes then said, “I have two children”, and the saleswoman said, “What are their ages?” to which she replied, “Fifteen. Do they have life-spray jackets and seat belts?”, and the salesperson said, “Harnesses”.

151. Mrs Barnes was also told that people suffering back and neck pain, or who were pregnant, should not go on the ride.

152. She received an email in reply with the Harbour Jet electronic ticket (Exhibit A4).

153. On 21 May 2010, a lady from Harbour Jet rang to say that the boat was broken down and that they would supply another boat.

154. In cross-examination, Mrs Barnes said that when she purchased the ticket she understood that there were terms and conditions attached to it. Those ride restrictions were part of Exhibit A4, page 11.

155. It was put to Mrs Barnes that she understood that the ride was likely to be a bumpy ride to which she answered:

“A: No, I understood it to be a ride of turns that perhaps wouldn’t be good with someone with a bad back or pregnant.”

She understood that the ride was an adventure ride, with restrictions on the speed of the boat because it was within the harbour. She was not concerned if the boat was going at speeds of about 30 knots, “If there was harnesses and there were competent drivers.”

156. She said she was concerned that the replacement boat would be an older boat but at no time did she think it would be a different ride to the one she purchased. She said, “I was shocked when I saw a navy seal boat pull up to the wharf.”

Evidence of Mr Brendan John Barnes

157. Mr Brendan Barnes gave evidence that he had experienced driving a boat owned by his father that was capable of achieving speeds in excess of 100 kilometres per hour, and that he had operated that vessel in the open ocean in one and a half and two metre swells. He had also been a surf life saver,

158. On 22 May 2010, Mr Brendan Barnes attended his sister’s birthday party at the Darling Harbour wharf. He was given a spray jacket to put on. Whilst that happened, a document was handed around and he gave evidence that, “I was just told to sign it by the person who had it before me”. He did not hear anyone say anything about the document from the jet boat company. The document was on a clipboard, and he identified his signature on Exhibit B.

159. Before proceeding to the lower level of the dock, he gave the following evidence:

“Q: Was there any more discussion from the person from the company while you were on that upper level that you can recall?

A: There was there was a discussion about – yeah I was told to remain seated in the boat and to hold on to the bar in front of me.”

160. Mr Barnes’ evidence was that they then went straight to the boat as a group and got straight on the boat. There was no discussion with the crew before they left.

161. Once the boat was past the Opera House, it accelerated to between 40 to 50 kilometres per hour. As it proceeded towards the heads, he noticed some waves and one wave of significance. When asked what happened next, he said:

“A Yeah well yeah, so the reason why I say one of significance is that the wave – all waves come in sets and so there’s going to be smaller waves before larger ones. And there was yeah, there was one wave that was sort of in the set that I noticed of significance which was the, you know, about a one and a half metre wave.

Q: OK, so how many sets of waves did you go over before the subject accident?

A: Yes, we went over the one – the one wave and then, yeah, so yeah, we went over the one wave – one, one big wave and then the largish one which was the second one we went over.”

162. Mr Barnes gave evidence that the boat was traveling at 60 kilometres per hour when it went over the first wave and it became “airborne slightly.” He was then asked:

“Q: Then what happened?

A: Then it landed and then he increased speed coming to the second wave which was –

Q: And so after the first wave, how – what sort of impact?”

A: It was yeah, a minor impact, we were only airborne for you know, about a second or half second.

Q: OK, then this – the next wave you approached what size was that wave?

A: That was a large wave, that was about three and a half to four metres.

Q: OK and what did the driver – what happened to the speed of the vessel?

A: There – he increased speed and reached a you know, a point about – a fast point of acceleration at the top of the wave.

Q: What sort of speed did it reach, the vessel?

A: I – 70, 80km/h. It was very quick.

Q: And then what happened to the vessel as it reached that point, it went over the top of the wave?

A: Yeah, we became airborne and that’s when they pulled back on the accelerator to stop the motor from turning when we were out of air and we hung in the air for about five seconds and then, yeah, everything sort of seemed to go quiet and then the boat, yeah, landed.

Q: And you say they pulled back on the accelerator, did you say accelerator or not?

A: Yes, yeah, yep.

Q: How do you know that? Did you see it, hear it or what?

A: You can, yeah, you can hear it yeah cause you could hear the motor, yeah, it stops revving or you know the revs drop down.

Q: What occurred, after when it landed?

A: Yeah well when it’s landed that’s, yeah, I experienced a pain like I’ve never felt before in my life.

Q: Were you seated at the time you landed?

A: Yes.

Q: And what happened to you?

A: My, I received a crush fracture to my tenth vertebrae.

163. Mr Barnes was seated right at the back of the boat on the right hand side. He was asked to physically describe what happened to the movement of his body after the boat landed, and answered:

“A: Yeah well, yeah, so what, what had happened is when, when we launched off the wave I sort of bounced out of my seat and yeah, then recall that I’d been told to sit down so I remember being in the air and thinking I, I, we’d been in the air for a long time then sat back down in my seat and wondered whether we’d already landed or not and then, yeah, then the boat actually landed and while I was seated and yeah, I, I sort of sat there and, and, and couldn’t, couldn’t breathe or, or, or say anything because I was just hoping that someone somebody would stop the boat because I don’t, I couldn’t, yeah.

Q: Are you certain the boat became airborne?

A: Yes, yes.”

164. In cross-examination, Mr Barnes was challenged as to his estimate that the boat was going a little under 40 knots at the time of the incident. He agreed that it was difficult to estimate speed on water but he denied exaggerating the speed at which the boat was going at the time it went over the wave. It was put to Mr Barnes that it was not true that the wave in question was 3 and a half to 4 metres in height. He said it was true. He disagreed that the wave in question, the cause of the problem, was between 1 and a half to 2 metres high. He also denied that the boat was travelling at a speed of something under 30 knots. He also denied that they were given a safety briefing at the lower level of the dock.

165. Mr Barnes agreed that his evidence was his best recollection of the events that occurred six years previously without regard to any contemporaneous documents. Learned senior counsel put to him the defendants’ case as to the briefing on the lower deck and he denied each component of that briefing. He denied that they were told that they were told that the boat could get airborne and that they were physically shown how to sit in the seat and hold the metal bar. He also denied that they were told that the ride was not suitable for anyone who was pregnant, or who had any sort of injuries including back problems,

166. Mr Barnes agreed that it was an adventure ride and that he hoped it would be going fast. He also knew that the ride could be bumpy going over waves or swell, and he knew when he got on to the boat that there were no seatbelts.

167. Mr Barnes denied that he was standing up at any time on the boat, and did not hear one of his brothers telling his family members to stand up.

168. Mr Barnes denied that at the end of a safety briefing, the person conducting the briefing told him to read the conditions on the sign on the upper level and had pointed to that sign, and then told him that once he had read those conditions to sign the Assumption of risk form. When shown Exhibit B he said that he did not read it before signing it. It was Miss Pillenger who handed him the form.

169. When asked whether he accepted that his recollection of the height of the wave could be faulty, Mr Barnes said, “definitely not”.

170. When it was put to Mr Barnes again that the boat did not become airborne on the subject wave, his answer was:

“A: 100 per cent the wave – the boat became airborne, there is no, yeah no question about that whatsoever.”

171. It was put to him that he had reconstructed the whole event for the purposes of his case which he denied. He agreed that the boat increased the speed by 10 to 20 kilometres per hour between the first wave and the second wave.

172. There was no re-examination.

Evidence of Mrs Samantha Barnes

173. Mrs Samantha Barnes attended with her husband at the Darling Harbour dock. She understood that a jet boat ride had been organised, and she had some experience of the ocean on boats and jet skis. She was given a spray jacket and then a clipboard on the upper dock area to sign. She thought it was an attendance list. She identified her signature on Exhibit B.

174. Mrs Barnes followed the others down to the lower dock and did not remember any member of the crew saying anything there. She got onto the boat and sat in the middle of the third row from the back. She heard someone saying to stand up and lean forward but she did not know who that was. After the boat passed the Opera House, she said it was doing 60 kilometres per hour. As the boat approached the Heads it was doing 80 kilometres per hour. The boat went over one wave of one and a half metres height and then a second wave of 2 metres height. She gave this evidence:

“Q: OK and what happened to the boat as it went over the first wave?

A: We went in the air and we came back, it was quite hard but it wasn’t as bad then he accelerated and I saw the wall of water ahead of me, and someone said, “It’s a big wave”, and at this stage I closed my eyes I didn’t know what – see what was going to happen because I knew it was-–

Q: And how are you able to tell us what you describe as the wall of water or the wave?

A: It was above the driver so it must be at least three metres high.

Q: Then what happened and what feeling did you have in respect of the boat?

A: I felt I was airborne for a few seconds – 3-5 seconds.

Q: And what did you notice about when the boat came down?

A: It just went bang on the water and I couldn’t breathe you know, I was in awful pain and they kept going and the girls behind started screaming and someone told them to stop.

Q: What you sustained – what sort of injury did you sustain?

A: Compression fracture to T8.

Q: Can you tell us about the speed as the boat went over this last wave. Are you able – tell us what speed it was going?

A: Well I would estimate that it would be around 90 km/h even 100km/h.”

175. In cross-examination, Mrs Barnes said she had not been on a jet boat ride before. Mrs Barnes denied that she was standing, but said that she was holding the bar, and bending her knees. She agreed that she was very scared on the ride but not that she had her eyes closed for a lot of the time. She said that she would close her eyes when hitting a wave. She denied that the jet boat people told her to hold on tight and to remain seated. Mrs Barnes denied that there was a safety briefing at the boat or that any instructions were given. She said, “If there were any warnings, I wouldn’t go on that boat”.

176. Learned senior counsel then put the defendants’ case as to the safety briefing to her and she denied that such a briefing took place. When put to her that she signed the assumption of risk form, she said that, “I signed the attendance list”. She agreed that her evidence was that no person from the boat company ever gave her instructions about anything on that day. She described the crew as, “young and casual boys”.

177. As the boat approached the heads, she described the waves as getting bigger and bigger and the conditions as, “Getting really rough.” She described seeing three waves, one over 1 and half metres in height, the second over 2 metres, and the third one, “around 3 metres”.

178. She agreed that she did not mention 3 metre waves in her police statement. She made her statement to police on 22 June 2010. In that statement, she was unable to tell the police what speed the boat was travelling at. She did not tell them that it was travelling at 80 kilometres per hour. She said she was suffering a lot of trauma at the time she made her statement to police, and denied exaggerating her level of trauma. She said, “It was a horrific experience.” She agreed that she told the police that she was just closing her eyes and told the court that she could predict what was about to happen. She said, “I could see the big waves and I knew he was driving way too fast for the waves that were coming”. In her police statement, she said that the waves “would have been more than one metre high”.

179. In her police statement, Mrs Barnes had told the police that she had stood up. She explained that in fact she bent her knee and lifted “my bum from the seat”.

180. It was put to her that the boat did not get completely airborne which she denied. She described the boat as landing really heavily, “it was a massive bang”. She agreed that she landed heavily on her bottom. She said the boat was airborne for at least three seconds, or between three and five seconds.

181. It was put to Mrs Barnes that she was not being truthful about the height of the wave or the speed of the boat which she denied. Finally, she denied that she was standing up.

182. There was no re-examination.

Evidence of the plaintiffs’ expert witness

Mr Wayne Fitness

183. Mr Fitness prepared a report dated 31 October 2014, which became Ex A20. Mr Fitness held qualifications as a Master Mariner Class 1, and had 21 years sea command and operational experience in the Royal Australian Navy, attaining the rank of Lieutenant Commander. He had worked as a boating safety officer employed by New South Wales Roads and Maritime, and was conversant with New South Wales Maritime legislation. His qualifications were not challenged. In his report, Mr Fitness expressed a number of opinions which were summarised under the heading “Executive Summary”, as follows:

“(1) The printout of the vessel’s survey stated that the vessel is not to operate when wave height exceeds 1.5 metres.

(2) The vessel encountered a 2 metre swell off Obelisk Bay which resulted in significant injuries to the passengers.

(3) The master failed to conduct proper passage planning, failed to appreciate that swell conditions were increasing, failed to proceed at a safe speed, and did not manoeuvre his vessel to meet the swell at a safer angle.”

184. With leave, Mr Fitness gave the following evidence in chief about the vessel’s class 1 survey issued in Queensland. That survey authorised the vehicle to be used in “partially smooth waters”. When asked about what that meant, Mr Fitness said:

“A: A class 1D survey means that he’s authorised to operate in partially smooth waters and the Marine Safety Act defines that as waters of 1.5 up seas – wave heights up to 1.5 metres 90 per cent of the time.

Q: What does that mean in reality for mariners in terms of their decision to operate?

A: That, that means if the wave heights are greater then 1.5, he should cease operating in that area.”

185. In cross-examination, Mr Fitness agreed that a survey report undertaken by New South Wales Maritime on 14 May 2010 (Ex A7), suggested any concern that the boat involved in the incident should have safety harnesses or seatbelts was not warranted.

186. When asked whether he believed the boat was operating in accordance with all appropriate laws and regulations in the survey, Mr Fitness said:

“A: I believe he was operating outside his survey, so they, because the wave height was higher than what was stated in his survey.”

187. In his report, Mr Fitness identified that the Master stated he was travelling at 10 knots at the time of the incident, the deckhand said 50 kilometres per hour, and a number of other statements of the plaintiffs were paraphrased. He was asked about the statement of Mr Craig Barnes, in which he said, “I think the boat was going at a speed no faster than the waves before”. He answered:

“A: I was a little unsure of his meaning there, whether he was talking about the speed of the waves or the speed at which the boat approached the waves.”

188. Mr Fitness agreed that it was notoriously difficult to estimate the height of waves for an “untrained observer”. He agreed that the estimates of speed given by passengers in boats could vary wildly.

189. Mr Fitness agreed that wave height is normally measured from trough to crest.

190. Mr Fitness gave evidence that having encountered a 2 metre swell, the boat was operating contrary to survey. He gave the following evidence:

“Q: But you’re not really suggesting, are you, that, having not encountered the wave of 2 metres before that, if that be the facts in this case, the fact that he came across a 2 metre wave meant that he was operating breach of survey, are you?

A: Yes, because my understanding of it is that a prudent seaman would have seen that he was coming out of the lee of south head and that the swell was progressively increasing.

Q: And so if the Master had been proceeding and hadn’t encountered any such wave of that height, if it be 2 metres, in all the conditions up to that point, wouldn’t you agree then, that the normal conditions, having regard to the survey, were, in fact, not 2 metres but something less than 2 metres?

A: I would think a prudent mariner would appreciate the fact that the swell was increasing and that he was going into an area where the waves would be in excess of his survey.”

191. Mr Fitness formed the view that Mr Edward Curtis must be wrong as to the wave size, as his statement was contrary to other statements. It was suggested to Mr Fitness that he had been selective in the material he had relied on from the various witness statements. He answered:

“A: Not entirely. I looked at the, the various vessel incident reports, and the reporting of external observers and I took a consensus of reports from the statements made. The crew member, as I recall, was at variance with what the, what the, what the skipper said it was.”

192. In accepting the skipper’s estimate of the wave, Mr Fitness said that he took the most reliable estimate. He denied that he discounted the crewman’s opinion.

193. Mr Fitness agreed that estimating wave size was a matter of estimation, coupled with experience. He agreed that the best person on the boat to determine the speed at which the boat was going would be the Master of the vessel. The Master would also make the best estimate of the wave height.

194. Mr Fitness gave evidence that if the actual wave was around 1 and a half metres, he would still be critical of the Master on the basis that he was still required to proceed at a safe speed, and maintain a proper lookout. He denied working backward from the fact that a number of people on board the vessel sustained injuries. He stated:

“A: The Master is responsible for the safety of the passengers and crew.”

195. Mr Fitness agreed that the whole idea of the boat in question was to travel fast over waves. Travelling at a speed of 10 knots in the circumstances was excessive and unsafe in the prevailing conditions. He was asked:

“Q: It wouldn’t, I suggest to you, be unsafe or dangerous in any way for a boat of this type to be travelling at a speed of 10 knots through and over a wave between 1.5 and 2 metres, would it?

A: It could be, there’s, there’s a definite danger there.

…

Q: You’re not seriously suggesting it’d be dangerous for this boat to be travelling at 18 kph over a wave between 1.5 and 2 metres high, are you?

A: I am because there are a number of variables. There’s wave length, would he be going from one wave to the other, or would he be going from the crest of one wave to the trough of the next one? What was the shape of the wave, if the wave was back less, whether he’d go through and just drop, there are many variables. My point, my point being in this situation, that he was entering an area of increasing wave length.”

196. Mr Fitness gave evidence that a speed boat such as this, with a planing hull, would get on the plane at about 10 knots. He was of the opinion that the boat in question should not be allowed to operate in the conditions experienced on Sydney Harbour.

197. Mr Fitness agreed that if the swell was predicted to be 1 to 1.5 metres, he would have no difficulty with the boat operating in those conditions, but qualified his answer by saying, “at the appropriate speed”.

198. In re-examination, Mr Fitness was asked:

“Q: You were asked about paragraph 13 of your report about the nature of the seats and reference to no restraining devices or harnesses?

A: Yes.

Q: Is that something that the Master would need to take into account in terms of the way the passengers are restrained and protected in terms of determining the speed at which the vessel was going and the sort of waves or wave heights over which the vessel should traverse?

A: Most certainly he could perhaps have a margin of safety if the passengers were restrained.

199. Mr Fitness also gave evidence in re-examination about the bureau of meteorology wave rider buoy off Sydney Heads, which measures the actual height of waves from trough to crest. He also gave evidence that wind strength could affect the height of waves. When asked whether the driver of the vessel was not keeping a proper lookout, he answered:

“A: If he was keeping a proper lookout he should have had a better appreciation of the size of the waves.

Q: Is it a function of the terms of the weather, safe to traverse 1.5 metres is really a function of wave height and the speed of the vessel?

A: Yes, it’s a combination of both.”

200. He agreed that in cross-examination it had not been suggested to him that the vessel was travelling at a particular speed. He was asked to explain his evidence that a speed in excess of 10 knots could not be considered appropriate. He gave the following evidence:

“A: Because waves are not regular beasts, if it had been a long ocean swell, where we would have climbed to the peak and then gone down the other side, yeah a faster speed could have been quite safe. But when you’re approaching a sudden increase in swell and you are unsure of the shape of that wave, a prudent mariner would reduce to steerage way, say about 4 knots, and allow the wave to pass under him, before re-assessing.

Q: Is it practically possible to reduce to those speeds?

A: Quite practical and prudent.

Q: And that if it – if the description of the events were that as the Master of the vessel was approaching the subject wave, if he was travelling at a speed of 10 knots which he understood to be a safe speed for travelling in that time, what would that indicate to you about the conditions at the time of the size of the waves and the like?

A: It would tell me more about the Master’s lack of appreciation of the conditions.

Q: In what respect?

A: In that he didn’t adjust his speed and course accordingly.

(1) In every contract for the supply by a corporation in the course of a business of services to a consumer, there is an implied warranty that the services will be rendered with due care and skill, and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.”

327. Section 74 is within Pt 5, Div 2 of the TPA. Section 68 is in the same division and deals with contractual terms, which would include the exclusion clause relied on by the defendants. Section 68 provides as follows:

“68 Application of provisions not to be excluded or modified

(1) Any term of a contract … that purports to exclude, restrict or modify, has the effect of excluding, restricting or modifying;

(a) the application of all or any of the provisions of this Division;

(b) the exercise of a right conferred by such a provision;

(c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or

(d) the application of s 75A; is void.

(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of s 75A unless the term does not expressly or is inconsistent with that provision or section.”

328. Section 68B provides as follows:

“68B Limitation of liability in relation to supply of recreational services

(1) A term of a contract for supply by a corporation of recreational services is not void under s 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying;

(a) the application of s 74 to the supply of the recreational services under the contract; or

(b) the exercise of a right conferred by s 74 in relation to the supply of the recreational services under the contracts; or

(c) Any liability of the corporation for a breach of warranty implied by s 74 in relation to the supply of recreational services under the contract;

So long as:

(d) the exclusion, restriction or modification is restricted to liability for death or personal injury; and

(e) the contract was entered into after the commencement of this section.

Section 68B commenced on 19 December 2002.

The plaintiffs’ claim for breach of contract and the application of s 74 of the TPA

329. The two contracts here, were properly characterised by learned senior counsel for the plaintiffs as being two ticketing contracts. The first was between Mrs Lynette Barnes and the second defendant, on behalf of the plaintiffs, Ms Vanessa Pillinger, Mr Adam Barnes, Mrs Marta Barnes and Mr Brendan Barnes. The second ticketing contract was between Mr Kishore Rohra and the second defendant, on behalf of himself, his wife Mrs Harpreet Kaur, Mrs Shivani Talwar and Mr Avikesh Avikesh.

330. In respect of the first ticketing contract, Mrs Barnes purchased 10 tickets for a jet boat ride with the second defendant on 6 May 2010. I accept the plaintiff’s submission that the contract was complete at the time when the tickets were paid for. At that time, there were terms and conditions stated as follows:

“RIDE RESTRICTIONS

1. Child weights are for children 14 years and younger and at least 130cm tall. Children under 130 cm are not permitted to ride for safety reasons. It is not recommended that children under 12 years old do not travel on the Middle Harbour Adventure. Children under 12 years old must be accompanied by an adult.

2. Any passengers who may be pregnant, suffer from back, neck or heart conditions, or previous injuries, are strongly advised not to ride on Harbour Jet and should consult with the Skipper before boarding Harbour Jet.

3. Passengers board and ride on the Harbour Jet vessels at their own risk and in no circumstance other than the gross negligence of Harbour Jet staff as proven by a court of law, will Jet Boats Australia Pty Limited, its officers, servants, or agents be held responsible for any accident, injury, loss or damage to person or property whilst embarking, travelling or disembarking from Harbour Jet.

4. Jet Boats Australia Pty Limited, trading as Harbour Jet, reserves the right to add, withdraw, substitute and/or vary advertised routes, vessels, prices and departure times and may refuse any person, for whatever reason, participation in the ride, in its absolute discretion, whether or not they have previously purchased a ticket.

5. All information is correct at the time of printing and subject to change without notice.

6. Passengers must check in at Convention Jetty, Darling Harbour, a minimum of 20 minutes prior to departure time or risk forfeiting tickets.”

331. The second contract concerning Mr Rohra, was entered into on 23 April 2010 with acceptance of his payment through the ticketing agency “Scoopon”. There were no terms and conditions attached to that contract.

332. The Assumption of risk signature form (Ex B), contained the following acknowledgement:

“I acknowledge that I have read the Assumption of Risk form and that it has been explained to me. I fully understand its terms and that I have given up substantial rights by signing it. I signed this document freely and voluntarily without any inducement made to me and intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law.”

333. At the bottom of the form, the following words appeared:

“The Skipper’s signature above confirms all customers/passengers have read and been informed of the conditions of riding and have signed this Assumption of Risk form.”

334. Each of the plaintiffs acknowledged their signature on the form. All said they believed they were signing the form as a testament to their attendance. The form on its terms, acknowledged only the reading of that form. It set out none of the terms and conditions relied on by the defendants to absolve itself from liability in this case. As set out in my findings of fact above, the plaintiffs were not referred, during the safety briefing, back to the terms and conditions on the upper deck, and they not told that they should read that sign before signing the Assumption of risk form. The terms and conditions set out on that noticeboard, therefore, do not form part of either contract of ticketing, by which the plaintiffs came to board the vessel.

335. Section 74(1) of the TPA does, however, apply to those ticketing contracts, to imply a warranty that the services would be rendered with due care and skill. To the extent that either contract included a term which had the effect of excluding, restricting or modifying that implied warranty, that term would be void pursuant to s 68 of the TPA, by virtue of s 68(1)(c).

336. The defendants rely on s 68B for the purpose of establishing that the relevant terms and conditions which exclude liability are not void, pursuant to s 68. Section 68B provides that the terms and conditions are not void, by virtue of the application of s 74 to the supply of recreational services under the relevant contract, “so long as” the exclusion, restriction or modification under those terms and conditions is limited to liability “for death or personal injury”, pursuant to s 68B(1)(d).

337. Those sections, and their impact on ss 5M and 5N of the CLA, were considered in Motorcycling Events Group Australia Pty Ltd v Kelly, supra. The Court of Appeal held that s 5M is directed to negating any duty of care, rather than limiting or excluding liability for a breach of duty. That reflects the contents of its subject matter, namely, where an anterior risk warning has been given to a plaintiff to take care in respect of a risk involved in a recreational activity. At [88], Gleeson JA said:

“Such a risk warning has the effect of negating any duty of care owed to the plaintiff in respect of the risk the subject of that warning.”

338. The Court held that if an exclusion clause goes beyond exclusion of liability for death or personal injury, then s 68B does not apply because of the proviso in s 68B(1)(d), limiting the effect of the section to liability for death or personal injury (see Basten JA at [21], Meagher JA at [41]) Here, the exclusion clause relied on by the defendants, whether it be the “Ride Restrictions” set out above (which refers to “any accident, injury, loss or damage to the personal property whilst embarking, travelling or disembarking …”), or, the terms and conditions set out on the notice board (see Ex 1 – photo 6), goes beyond the terms of s 68B which therefore does not apply so as to enable the defendants to avoid liability.

339. The Court also held that s 5N applied to a contractual duty, but was inconsistent with a Commonwealth law, and therefore did not apply to absolve the defendant from liability.

340. Having regard to my findings in relation to the terms of the contract, and the application of s 74 of the TPA, the defendants conceded that their defences pleaded pursuant to ss 5M and 5N of the CLA, could not be made out, and the matter then had to be determined on the basis of whether the master of the vessel was negligent (see [205] above). In accordance with my reasons set out above, the master of the vessel was negligent, and the defendants were also in breach of their warranty, implied by s 74 of the TPA, that the service would be rendered with due care and skill. In those circumstances, there is no utility in determining whether there was any other breach of contract giving rise to a claim for damages, and neither party made any submission to that effect.

Contributory negligence

341. The defendants’ case on contributory negligence was that at least one of the Barnes’ plaintiffs told others in the group to stand, rather than sit on the seats provided, and that that should be the basis of a finding of contributory negligence against all the plaintiffs. The onus is on the defendants to prove contributory negligence, and in this case, the defence has not been made out for the following reasons:

1. Whilst the defendants submitted that Mr Craig Barnes, one of the passengers, told a number of the plaintiffs to stand up, there is no evidence establishing that he did so. His statement (Ex 7) sets out that he told his father to “Hang on, this is a big one”. He then stood up, as he was experienced on boats.

2. The statement of Mr Craig Barnes establishes that he suffered no injury.

3. Nor does the evidence establish that the passengers failed to follow the instructions given to them in the safety briefing. Mr Adam Barnes was the only plaintiff who stood up as the vessel passed over the wave.

4. Further, the defendants have not established on the balance of probabilities, that by standing up on the vessel, that placed the plaintiffs at a greater risk of harm than otherwise was the case. In fact, the contrary appears to have been the case, namely, that those passengers who were following the instructions given in the safety briefing, suffered serious injuries.

342. Having regard to the whole of the evidence, the defendants have not made good its defence of contributory negligence, and I decline to make any finding of contributory negligence in respect of any of the plaintiffs.

Conclusion

343. I have, therefore, concluded that the defendants were negligent in that they were vicariously liable for the master of the vessel who was negligent in the manner of driving and control of the vessel Extreme II, in the circumstances that pertained off Obelisk Bay on 22 May 2010.

344. There will therefore be a verdict for each of the plaintiffs in each of the cases.

Orders

345. I make the following orders:

1. In each case there will be a verdict for the plaintiff.

2. The matters are to be stood over for call-over before the List Judge for directions and to allocate a hearing date on damages (on a date to be allocated on 10/6/16).

3. The defendants are to pay the plaintiffs’ costs on the liability hearing.

4. The plaintiff is to file a Notice of Motion, returnable before me, on 10 June 2016, seeking a special costs order, and file any affidavit evidence in support.

5. The plaintiff is to file and serve a written outline of its submissions on costs on or before 28/5/16.

6. The defendant is to file and serve its written outline of submissions on or before 3/6/16.

7. The exhibits are returned forthwith.

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Amendments

13 May 2016 - Case name changed "& Ors" taken out

Decision last updated: 13 May 2016