Lightfoot v Rockingham Wild Encounters Pty Ltd - [2017] WADC 62

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LIGHTFOOT -v- ROCKINGHAM WILD ENCOUNTERS PTY LTD [2017] WADC 62

CORAM: BRADDOCK DCJ

HEARD: 25 - 29 JULY 2016

DELIVERED : 9 MAY 2017

FILE NO/S: CIV 454 of 2015

BETWEEN: LOUISE CAROL LIGHTFOOT
Plaintiff
AND
ROCKINGHAM WILD ENCOUNTERS PTY LTD
Defendant

Catchwords:

Torts - Negligence - Recreational activity - Duty of care - Dolphin watching cruise - Breach of duty - Section 5I of the Civil Liability Act 2002 - Relevant risk warning - Contract - When made - Whether terms operated to exclude liability for recreational activities - Whether preserved by s 5J of the Civil Liability Act 2002 - Australian Consumer Law - Section 139A of the Competition and Consumer Act 2010 (Cth) - Damages

Legislation:

Civil Liability Act 2002 s 5B, s 5C, s 5I, s 5J
Competition and Consumer Act 2010 s 139A, sch 2
Fair Trading Act 2010 (WA)
Navigable Waters Regulations 1958 reg 14A

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr N Morrissey
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: CLA Legal
Defendant: SRB Legal

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Shire of Gingin v Coombe [2009] WASCA 92
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Turner v State of South Australia (1982) 56 ALJR 839
Wyong Shire Council v Shirt (1980) 146 CLR 40

BRADDOCK DCJ:

Introduction

On 23 September 2012 Ms Lightfoot and her friend Ms Farah were passengers on a boat called 100% Wild. This vessel was operated by the defendant, Rockingham Wild Encounters P/L (RWE) for the purpose of taking paying passengers on dolphin watching cruises. The skipper of the vessel was Mr Ian Bryant, an experienced master. Prior to boarding the vessel, Ms Lightfoot and her friend attended at the RWE's office in Shoalwater to collect and pay for their tickets. She was asked to sign a waiver of liability in relation to the trip at that time and did so. Ms Lightfoot had reserved the tickets online the previous day.
As part of the tour, Ms Lightfoot and her friend, with other passengers, were transferred by a small ferry to Penguin Island from the mainland at Mersey Point in Shoalwater Bay. On the jetty at Penguin Island and before boarding 100% Wild, the skipper gave the passengers a short briefing.
On the vessel, Ms Lightfoot and her friend sat on seats at the front near the bow. The vessel departed and cruised around some islands in Shoalwater Bay before it entered Cockburn Sound, searched for dolphins, and then began its return voyage.
On the way back out of Cockburn Sound, the skipper navigated the boat in a westerly direction through a gap in a reef situated between John Point and John Ledge. The vessel encountered some waves, then a larger wave, which caused Ms Lightfoot to rise out of her seat and come down hard, onto the same seat, striking her back against its edge. As a result of the impact she received a serious spinal injury, which required her to be transferred to hospital, ultimately undergoing surgery two days later. She has recovered from the surgery, but is left with disabilities and restrictions and faces further surgery.

The action

On 12 February 2015, Ms Lightfoot issued a writ against RWE, claiming damages for personal injury.
In her amended statement of claim of 5 July 2016, Ms Lightfoot pleaded the action as:
a breach of the duty to take reasonable care to ensure that the Plaintiff was not exposed to the risk of injury in the process of the Plaintiff attending the dolphin watch tour on the vessel, 100% Wild.
The particulars of the alleged negligence/breach of duty were extensive. At trial, counsel for Ms Lightfoot relied only upon one matter:
The defendant, its servants or agents were negligent in that it:
10.15Navigated the boat into an area where it was foreseeable that the boat could encounter large swell/waves which would endanger the safety of passengers seated near the front of the boat including the Plaintiff.
The claim was also pleaded under s 2 the Occupiers Liability Act 1985 (OLA). It was said that RWE had control over and occupied the vessel, and owed a duty to passengers under s 5 of the OLA, on the basis of the identical particulars as were pleaded in negligence.
It was not pleaded as a contractual claim or under the Fair Trading Act 2010 (FTA) or other consumer legislation.
The claim under the OLA was not pursued at trial.
In its re-amended defence, dated 14 December 2015, RWE pleaded that Ms Lightfoot was engaged in a dangerous recreational activity and any injury was the result of the occurrence of an obvious risk of that activity.
At the outset of the trial, it was conceded by counsel for RWE that watching dolphins was not, in these circumstances, a 'dangerous recreational activity'.
RWE admitted that the vessel was in the open ocean and that there were waves in the ocean, but the facts and circumstances of the incident were disputed. Negligence was denied, and RWE relied upon s 5I and s 5J of the Civil Liability Act 2002 (CLA), claiming that a risk warning (s 5I) was given to Ms Lightfoot in relation to sitting at the front of the vessel and that she had signed a relevant waiver (s 5J) of liability.
The action was opened on and argued in negligence under the CLA.

Evidence

The plaintiff

Ms Louise Carol Lightfoot was, at the time of trial, 37 years old. She was born on 21 February 1979. She was educated principally in England, leaving high school in 1997. She then went to Nottingham Trent University and studied international relations. After graduation she worked as a recruitment consultant in the City of Bath. Subsequently, she joined her parents who were living in Oman and worked as an English language teacher.
In 2004, she relocated to Dubai where she worked as a recruitment consultant. She continued there until 2009, when she went to travelling and took a 'gap' year. After this she moved to Australia in 2010. She secured employment in the oil, gas and resources industry as a recruitment officer. In early 2012, she commenced work with Downer Mining as a senior recruitment advisor in relation to mining projects in the Pilbara, specifically professionals. She was based in Perth, working 'office' hours, although occasionally required to visit sites usually in the Pilbara.
In April 2012, her parents came to visit her in Australia. During the visit, they went on a dolphin adventure tour with RWE. She described booking the tickets the day before online, attending at Shoalwater, near Rockingham where she queued, paid for and collected the tickets and then signed a waiver. She and her parents waited for the boat to take them across to Penguin Island. They joined the dolphin watching cruise vessel there. She described that day as very sunny, calm and incident free. They saw quite a few dolphins and had a 'very nice time'.
In September 2012, a great friend from Dubai, Jumana Farah, came to visit her. Ms Lightfoot decided to take her friend on the dolphin watching cruise. She again booked the tickets online the day before, completing what she believed the standard booking form. She received an email confirming the booking that same day, exhibit 2. The email is dated 22 September at 11.31 am. Its subject heading is 'Shoalwater safari cruise' 'booking confirmation 9156'. In addition to recording the date, times, numbers of passengers booked, the point of embarkation, it provides that payments can be made on the day, when the passenger checks in, refers to the cancellation conditions, gives directions, advises passengers to dress warmly and refers to their website for 'FAQs' and provides:
You will be required to sign a waiver of liability to participate in the Dolphin Watch Adventure Cruise. We highly recommend you read this waiver of liability before your tour at: if you have any concerns please do not hesitate to contact us.
On the morning of 23 September 2012, Ms Lightfoot and her friend drove from Ms Lightfoot's flat in Fremantle to Rockingham and attended the offices of RWE at Shoalwater. They went to collect the tickets and to pay for them. They were both asked to sign a waiver, which Ms Lightfoot said was 'in order to get on the boat'. She signed the waiver without reading it thoroughly. She said that she was not concerned about it, having been on the tour before. A copy of the waiver was produced in evidence, exhibit 9, together with the signature sheet for both the April tour with her parents, exhibit 8, and the tour on 23 September, exhibit 10.
The waiver is in the following terms:
Waiver of Liability for 'Dolphin Watch' and other tours conducted on board '100% Wild ... the ultimate eco-adventure boat'
This waiver applies to 'Dolphin Watch' the name of the tour operated by Dolphin Watch Pty Ltd (a member of the Rockingham Wild Encounters Ecotourism group) or other tours, charters or cruises conducted on board the company vessel known as '100% Wild'.
Acknowledgement and Assumption of Risk
Warning: This may affect your legal rights and obligations. If you have any questions please ask your representative before signing.
Like any marine based activity, tour or cruise, passengers travelling on board 100% Wild' can be exposed to certain inherit risk, therefore: -
I acknowledge and understand that whilst participating in the activity:-
The conditions in which the activity is conducted may vary without warning.
I assume the risk of and responsibility for any injury, death or property damage resulting from my participation.
I have listened to and understood the tour safety briefing.
I agree to follow all oral and written instructions given to me by Rockingham Wild Encounters Pty Ltd staff during the tour.
I will query any matters that I do not understand.
I am not under the influence of drugs/medication/mind altering substances, that affect my understanding of safety instructions, or ability to safely participate.
I will inform Rockingham Wild Encounters Pty Ltd staff of any mental infirmity, allergies, physical disabilities or any other significant issues that may prejudice my performance/safety or the safety of others.
Release and Indemnity to Dolphin Watch Pty Ltd. Rockingham Wild Encounters Pty Ltd and Penguin Island Cruises Pty Ltd
In consideration of the acceptance of my payment for participating, except to the extent it is precluded by statutory law I agree to release and indemnity Dolphin Watch Pty Ltd, Rockingham Wild Encounters Pty Ltd and Penguin Island Cruises Pty Ltd.
I release, indemnify and hold harmless Dolphin Watch Pty Ltd, Rockingham Wild Encounters Pty Ltd, Penguin Island Cruises Pty Ltd, its servants and agents, from and against all and any actions or claims which may be made by me or on my behalf or by other parties for or in respect of or arising out of any injury, loss, damage or death caused to me or my property whether by negligence, breach of contract or in any way whatsoever.
My acceptance of this waiver of liability is demonstrated by my signature overleaf: -
…
The two women then went straight to the jetty where a boat was waiting to take them to Penguin Island. Once there, they disembarked and waited. Whilst they were waiting the skipper introduced himself, and a young lady who was the 'hostess'. Ms Lightfoot said that she was informed how to board the boat in a safe manner, that spray jackets were available if required, and that children should board first, which they did. There were quite a lot of families on the vessel that day. Ms Lightfoot and her friend were last onto the boat. They took seats together at the front of the boat.
She described the trip as starting slowly, moving out to the open ocean and looking for dolphins. Unfortunately, they were not very successful in finding them. She remembered going under a bridge into what looked like an industrial area and looking for dolphins for a period before returning back under the bridge. On the way back, she said they were heading to the open ocean and she saw a reef in front of them. She said it was quite noticeable because there were waves breaking over the reef. She identified photographs taken by her friend from the boat showing breaking water. After that she said they encountered quite a few of what she described as 'smack-downs', where the boat went over a wave and the front of the boat rose up then crashed down making a noise. She said there were two or three such waves then a larger wave approached. She said they rose 'really high in the air' over this wave.
She estimated that they rose 3 m in the air. She said the engine turned off. She braced herself. She said she thought that there was spray coming up even when they were on the top of the wave. As the wave went under the vessel the bow came crashing down on the other side. As a result she came out of her seat. She said that her body rose above the height of the seat. As she came down her lower back hit the top of the chair on its right hand side.
She said that she knew immediately that something terrible had happened. Her back was bent and she could not straighten up. She described the pain as being excruciating. She informed the hostess who wanted to move her to the back of the boat, although she protested she could not move. With her friend's help they got to the back of the boat and she asked for an ambulance. The skipper made a call from the satellite phone for an ambulance and the vessel headed directly back to the jetty at Mersey Point Shoalwater, not to Penguin Island. She described every stage of the journey as being horrific. The ambulance met the boat and she was given pain relief and taken to Rockingham hospital but was almost immediately transferred to Fremantle Hospital by ambulance.
The next day she was transferred to Royal Perth hospital for surgery performed by Dr Peter Woodland.
After the surgery she was fitted with a 'Jewett' brace which she had to wear 24 hours a day for three months. After four or five days she was transferred to Shenton Park rehabilitation centre for further care.
Whilst in the hospital she was visited every day by her boyfriend, Ryan, and her friend Jumana. It appeared that her friends spent as much time with her as they could. Ms Farah stayed in her flat. At the hospital Ms Farah fetched her things, such as clothes and magazines, she washed hair and did a lot to keep up her morale. It became apparent that she would not be able to return to her flat because it was up three flights of steps. As a result of this, Ms Farah packed up her flat and when she left hospital she moved into Ryan's address in Beldon.
Ms Farah stayed for about three months assisting Ms Lightfoot with appointments and at home. Both of Ryan's mother and sister assisted from time to time. She was off work until February 2013.
After consulting her surgeon, she went back to work part‑time, which was four hours per day. She was paid pro rata for this work. During the first three months she did not receive any payment, but after that she had the benefit of a company income protection policy. The company assisted her to return to work by arranging an ergonomic assessment when she returned to work and providing her with a parking pass so that she did not need to travel on public transport.
She said that she was getting stronger at that point, but still required assistance with household chores and that Ryan was her main carer. She avoided household duties that involve bending or lifting. She said that when they were both working his help would be about an hour a day having previously been up to three hours per day. She said that she still avoids bending such a scrubbing the shower, making the bed doing the gardens mopping the floors. If she engages in activities of that kind it triggers back pain. Her pain is managed under outpatient treatment and by her GP. She initially took tramadol on her release from hospital. After she was free of the 'Jewett' brace, she had hydrotherapy and physiotherapy. She did both activities weekly. When she returned to work she did rehabilitation at lunchtime. She said that decreased but she continued to do physiotherapy when she was working.
She paid for these therapies herself and with the assistance of her health insurance with BUPA. After about three months she returned to work full‑time mainly for financial reasons. She did not go to site visits and her employer was considerate in relation to the restrictions of her back injury, concerning carrying things and the like. She said she did full‑time recruitment advisor duties. When she returned to full-time duties she received full-time pay. She has also engaged in Bowen therapy.
Shortly after she returned to work full‑time she found that she was pregnant with her first child. Pregnancy worsened her back pain considerably. She was not able to take the painkillers that she had previously. Her first child was born in June 2014. She went on maternity leave about five or six weeks prior to the birth. She was unable to have an epidural painkiller during childbirth due to her back, because her surgery had involved metal. Ultimately she had a C‑section. After the birth of her daughter, there were continuing difficulties managing a new born baby. She suffered a lot of pain at this stage, although she said that most mothers do also, but it was worse because of her back injury. After the birth, she attended Royal Perth as an outpatient and an x‑ray revealed that one of the screws in her back had snapped. It was arranged and she would have the metal removed on 18 December 2014. At that time she had a 7‑month‑old baby and was she was advised that she would again need to be in a brace for 12 weeks. She organised assistance with child care and her partner took time off work. Then, just before the operation, it was cancelled due lack of bed space.
Although the procedure was postponed to May 2015, she was then given only four weeks' notice of the date. She was unable to arrange assistance for that time. She had just returned to work after maternity leave. Due to considerations of job security and her finances, she decided that this was not the right time for such an operation.
Four months later she became pregnant again. Her second child was born on 26 April 2016. In 2015, she requested to work four days rather than five days per week, after her maternity leave with her daughter. This was granted. However, in March 2016, just two weeks before she was due to go on maternity leave for the birth of her son, she was made redundant.
At the time of her redundancy, her base rate of pay was $99,798 per annum. At the time of the trial, she was receiving the 'state maternity payment' at $620 per fortnight, in benefits. She plans to return to work in the future, but said that her back remains an issue and she has two children to care for at present.
The long term consequences of her injury affect her in her personal activities as well as her work. She describes herself prior to the accident as being adventurous and engaging in motor biking, camping and going on boats quite regularly. Now she said she would rarely do these activities. She also said that it has an impact on her children. She finds it difficult to sit on the floor for a long period of time to play. It restricts the activities she can engage in, such as the cycling. Her partner takes on more of the household chores than she does, and she does not do the gardening nor does she groom the dog. She still needs medication. Bending forwards is a problem, as is sitting for long periods.

Ms Farah

Jumana Farah is a friend of Ms Lightfoot. They met in Dubai some eight years previously. Ms Farah came to visit Ms Lightfoot in Australia, arriving on 18 September 2012. She had planned to stay for two weeks. She accompanied Ms Lightfoot on the dolphin tour on 23 September 2012. They drove from Ms Lightfoot's apartment in Fremantle to Shoalwater and attended the kiosk. Ms Lightfoot paid for the tickets which had been reserved the day previously. They were then handed a waiver form to sign, which she read through briefly and signed. After that they left quickly to board the boat to Penguin Island.

When they arrived at Penguin Island there were already a lot of people waiting to get on the tour boat. The skipper gave them a briefing. Mr Farah said that the skipper instructed all children to board first and to board at the back of the boat, which she said is what they did. She said that when she and Ms Lightfoot boarded the boat it was quite full and they took seats at the front of the boat. She said that after that the skipper informed them that there were lifejackets under the seats and what to do in the event of fire. In cross‑examination, she was definite that the skipper did not advise people with bad backs to sit towards the back of the boat. Nor did she hear anything said about pregnant women. She described the cruise and said they saw a few dolphins. When they were returning back towards the 'main ocean' she remembered putting on her jacket because she felt that the weather had changed and she was a little cold. She described the waves as being quite 'choppy'. She went to take a picture of waves to the left of the vessel. She said she was just taking pictures as they returned to Shoalwater. At that stage she thought the boat was going quite fast because there was a lot of spray and that's also why she put a jacket on. She said the only time she felt the vessel slow was when she saw the wave coming towards them. She said that as she was looking to the left taking the picture she remembered turning forwards and felt the vessel slow down. She said the next thing was that 'out of nowhere' a 'massive' wave came straight towards them and that was when the accident happened. She said it felt like the boat 'went vertical' and she remembered coming out of her seat, trying to hold onto her camera and trying to hold onto the side. She said the boat came down and that was when she heard Ms Lightfoot cry out in pain. She described the weather as having become a bit cloudy and it was windy and there was a lot of spray. She said a crew member came and wanted to get Ms Lightfoot to the back of the boat, which they managed to do. She was in a lot of pain. Ms Farah tried to comfort her as much as possible whilst they headed back to Shoalwater. An ambulance was called and met the boat at the jetty. From there they went to Rockingham hospital and she accompanied her friend in the ambulance. Later, Ms Lightfoot's partner Ryan arrived.
She said she remained with Ms Lightfoot at the hospital, when she was transferred to Fremantle Hospital and from there to the Royal Perth hospital. Whilst Ms Lightfoot was in hospital, visited her every day, within visiting hours, and provided her with what she needed. She also visited with her daily at Shenton Park rehabilitation hospital to give support. Between herself and Ryan, they ensured that she had somebody to care for her, bring her clothes or food, magazines and keep her company. After that Ms Lightfoot moved to Ryan's house in Beldon. She continued to care for Ms Lightfoot, extending her trip to 24 October. Whilst Ms Lightfoot was in a brace she said that she could do very little, so she helped her with everyday things, food, washing getting around the house. She confirmed that she had packed up Ms Lightfoot's apartment because it was impractical for her to return to that residence. She spent time with Ms Lightfoot while Ryan was at work. She drove her to appointments and back and provided consistent help. She described Ms Lightfoot as being hardly able to walk in the back brace and she could do very little at all.
Ms Farah was a pleasant witness who was helpful in her approach but inclined to overdramatise in her descriptions.

Mr McWaters

Ryan McWaters is the partner of Ms Lightfoot and they reside together in Beldon. He was, at the time of giving evidence, unemployed, but previously worked in sales. At the time of Ms Lightfoot's accident they had been going out together for about three months. They were not then living together.
He did not go on the cruise with his partner and Ms Farah. He had been elsewhere that day and was driving home in the middle of the afternoon when he received a call from Ms Farah saying that Ms Lightfoot had had an accident and had been taken to Rockingham Hospital. He went as soon as possible to the hospital. He and Ms Farah went home that evening. He visited Ms Lightfoot in Fremantle Hospital the following day. Subsequently, he visited her in Royal Perth hospital. He was working at the time, and would go straight to the hospital after work. He would remain until the end of visiting hours. When she was transferred to the Shenton Park rehabilitation hospital, he visited her daily also. He also helped her with showering, other personal care, brought in magazines. When she was released from hospital she moved into his house. He said that Ms Farah was there during the day at first and helped Ms Lightfoot. Then when he came home at night he helped with all the general things, such as showering, clothing, cooking, cleaning, as well as the household duties. He would also drive when required to appointments and to obtain medication. He estimated that in the early days he probably spent 4 ‑ 5 hours per day assisting Ms Lightfoot. It decreased overtime once the brace was removed. After that, he said that Ms Lightfoot still struggled, particularly with bending over and doing any repetitive actions and he still helped her with the cleaning, the cooking, and household duties. He said she was able to drive again after the brace was removed, but most of the time he would still drive. He said that at this stage he estimated he was assisting her for 2 ‑ 3 hours per day. He said that her back slowly got better but there was still a lot of activities too difficult for her. He said that after 6 ‑ 9 months her condition plateaued so that the amount of assistance required was steady. At that stage he was doing any activities that required repetitive bending, e.g. vacuuming, scrubbing showers, gardening. He said that when Ms Lightfoot became pregnant it made everything a bit harder and that currently he still did a lot of the bathing and lifting of the children. He looks after the children, plays with them, takes the dog for walks and does other duties around the house. He does all the gardening. He confirmed, in cross‑examination, that prior to Ms Lightfoot coming to reside with him, he obviously performed all his own household duties. He confirmed that Ms Farah stayed with them both until she returned to England. He also confirmed that it was possible to leave Ms Lightfoot alone even when she was still wearing the brace.

Mr Madden

Paul Vincent Madden lives in Halls Head and is employed as a marine engineer in Fremantle by Svitzer Australia. He is a qualified skipper holding Master Class 3 ticket, which he said is the 'top of the state tickets in WA'. He has worked on the Rottnest ferries, employed by Boat Torque, mainly as an engineer although he held a master's ticket. He operated the Rottnest Underwater Explorer as his own business for five years. He then went to work on tugs in Port Hedland before returning to Fremantle. He has also worked as marine engineer for off‑shore companies. He has dived for mussels in Cockburn Sound and is familiar with those waters, and has driven boats in the area for years. His qualifications were not challenged at trial.
As an expert witness he was provided with information on behalf of Ms Lightfoot, comprising her statement, the 'quayside investigation report', a letter from Ms Matthews to Ms Lightfoot and the department of transport investigation report. Initially when asked what facts he was given to understand formed the scenario on which he was to give his opinion he responded:
The facts were that the boat left the jetty, did a cruise around Cockburn Sound looking for dolphins, came back through under the bridge there was an incident - occurred going across the reef, or going between the reef, before it got back to base.
He did not know the precise route but went on to say:
went back under the bridge, went through some breakers, came between the reef. Incidents occurred on the vessel. Someone was hurt.
Mr Madden understood the forecast for swell that day to be between 2 m and 3 m. He said that the 'wave-rider buoy' at Rottnest was indicating over 2 m at 13:00 hours. He assumed that incident occurred between 1 o'clock and 2 o'clock. He said he assumed that the boat was travelling at high speed, but slowed down according to the swell conditions. He thought that just before they hit the wave the vessel slowed down to 5 knots and then pulled out gear. He assumed that the boat was going through a very narrow gap with no room to either side. He said:
[Ms Lightfoot] said that she got wet legs when the wave broke or when they actually went through the wave – over the wave … that means that the wave had curled and gone to its …, … breaking on top of the boat. So - it's quite a large wave, and it's broken. It's got a curl on it so might not have broken a big smash but it - would have come down on the front of the boat and then down into the cockpit.
In relation to the photograph, exhibit 3, he said he assumed that that wave would have to be bigger than 1.5 m because of the area where it is. He said that it was his understanding that the wave was breaking on the reef before the accident. He said that that the vessel was 'suitable for the tour but that the job of returning back to base was poorly executed'. His view was that the skipper should not have deviated from the marked channel.
It is clear that Mr Madden was very familiar with the general area, but it is also clear that he relied entirely upon the material that he had been given, and did not conduct any on-site observations himself for the purposes of giving his opinion.
He explained the marker of the South Channel, which is referred to as the 'cardinal mark', OM3. Any cardinal mark, depending on the shape and a flash rate of its lights, indicates that there is safe water to a particular side. There are four cardinals, north, south, east and west and depending on the shape of the marker they indicate where the safe water is. In this case, the marker indicated a safe passage to the north. He also explained that on the chart, where there are half circles of dots that, this indicated an area where waves may break. He explained how the waves are formed:
They can be formed by the wind, which doesn't have a lot of power, or can be formed by a ground swell miles away from the coast, and as it comes closer to the coast this swell rises up, because it becomes shallower water, and waves rise to a point where the top actually breaks because it can't support it. So it goes from a rolling way to crest.
He understood that the accident happened at the point of quite a large breaking wave. He did not however know where the wave was which was said to be breaking. He believed that the incident occurred right inside the reef. It was his view that if the forecast was for a 2 m swell, you should expect a 2 m swell at all times.
He agreed that he did not have primary information as to what happened, and that the appropriate conduct of a boat was entirely the responsibility of the skipper on the day. He believed that the gap in the reef was very narrow, maybe 20 m either side. He conceded he had never been through the gap, and said he would never navigate through it. When shown a Google map exhibit 14, and it was put to him that there might be 150 m in the gap, he said that would be plenty of room to move. He believed the gap was less than 50 m wide. He was ultimately vague as to how the vessel approached the swell and passage in terms of speed, his view was that he would not slow down to navigate such a reef.
He said that a 'wave standing up' would be a wave that has 'come into shore and come into very shallow spot and just stood straight up'. His view was that this is a foreseeable danger because 'you're watching that swell and looking what the waves are doing'.
He agreed that the master is fully in charge of a vessel, and volunteered this:
In other words, if you go to sea and you are taking passengers-it doesn't matter if we-got passengers or not, but you're going to sea, right? So anything that's in front of you, you have to take eyesight on it and whether is going to be-you can navigate over it or navigate around it. That's up to you okay? If you are going through a gap, a limited area of space, okay, you're going to be looking at swell, you're going to be reading that swell before you get there and you say, 'well something stood up in front of me' that's an amateur point of view, because amateur want to go to the insurance company. So 'oh, it's just one out of the blue.' You're a professional. You cannot afford that. You have to be a professional about it and say 'it's too dangerous going through that'. Or 'let's sit back, wait, and go through it when it's flat.
Mr Madden was initially calm and quite articulate in the witness box. He was, however, quick to offer his opinions, even when not requested. It was difficult to obtain the facts upon which he was giving his views and he was at times imprecise, for example his initial exposition of the scenario quoted above. He did not appear to concede, until well into cross‑examination, that he had perhaps an imperfect understanding of the events under consideration. He appeared at times to have difficulty directly answering a question. I formed the opinion that his starting point was that 100% Wild has navigated into obviously dangerous and breaking swell on the reef.
My impression was that he was not objective to the extent required of an expert witness. His view was that the skipper should have travelled through the marked channel. It is obvious from the chart that this would be, certainly in the conditions on the day, safe. That does not assist directly with the issues in this trial. Mr Madden thought that the skipper should not have taken passengers through the gap in the reef, because to his mind, and on his information, there was an obvious danger.

Evidence for the defendant

Mr Bryant

Ian Matthew Bryant is boat skipper employed by RWE. He is 46 years old and has worked for RWE for about 9 years. He holds a Master Class 4 skipper's ticket and a Marine Engineering ticket MED2. He has held the class 4 ticket for 24 years and before that held a class 5 ticket. He worked on prawn trawlers in the Gulf of Carpentaria from the age of 18 - 36, starting as deckhand and working up to skipper. After that, he worked at Dampier on tugs and then at RWE. He had been skippering 100% Wild for a year and was very familiar with it.
100% Wild is a rigid hull inflatable boat (RHIB) designed for coastal and shallow waters. It has been operating in the waters of Cockburn Sound for a number of years conducting sightseeing tours. It is licensed to carry 43 passengers. There are seats for passengers, both without any windbreak or awning at the bow and behind transparent screens towards the centre and rear. The skipper takes the helm towards the rear of the vessel, aft of amidships. A photograph of the vessel was included in exhibit 11.
He described the pre‑start checks required for the vessel, described bringing 100% Wild from the vessel's mooring on the morning of 23 September 2012 and the first trip he took that morning. He said that he checks weather conditions before getting going for the day, visually and on computer from the Bureau of Meteorology. On this morning, he said the swell was 3 m but was dropping off. There was not much wind in the morning. Later in the day the forecast was for 10 ‑ 15 knots from the south west, which he said was the standard sea breeze for the coastline. He said on the first tour that morning there was a 2 m swell and light breeze. The route for the first trip was the same as the one taken in the afternoon and was described by Mr Bryant and included passing through the reef at the point the accident subsequently occurred.
The second tour started from Penguin Island at 12.45 pm. He said they got passengers together on the jetty and give them:
a safety brief of how to board the vessel safely from the jetty … . We also try to find out by asking anybody if they need any priority seating and the fact that they mat be - may get very seasick; pregnant women; anyone that might be frail of - or have any existing injuries, neck injuries back injuries that may be niggled through a bit of motion on a vessel. And in saying that I seem to, as I am, I use a lot of hand signals so I use the hand signal of a boat going through the water and I show people that the front of the boat would - would lift up, so I used the hand signal so that people sort of get a better understanding than just words, and then we board the passengers. If anyone raises their hand or asks us for any priority seating we will board those people first. For obvious reasons, sitting towards the back of the boat there's less movement so we try and get those people on first and then everyone else is just can go and sit where they want to …
He was specifically asked in chief whether he said anything about where on the vessel was safer and responded:
Yes I did … I do say to people that sitting towards the aft end of the vessel is a lot more stable due to that up and down motion through the water, so anyone with any injuries or … on the frail side or anything like that, they have got to use their own common sense to understand what I'm saying.
Asked about children he said:
Just go and sit behind this clear screen because it offers the kids a little bit of protection from the wind.
He described the weather conditions as
quite good. Two metre swell and there was no sea breeze at the start. It was quite calm wind under eight knots.
He described his route for the tour in question as previously marked on exhibit 15. The objective was to spot dolphins, which they did in Causeway Bay. The dolphins moved off and the vessel travelled further into the bay, under a bridge trying to find more of them. Having cruised around the vessel returned to the spot where they had first been sighted near Mangles Bay. At this point he said the sea conditions were same but the sea breeze was starting to come in from the south west.
He indicated on the chart the point at which he said the incident occurred, north of John Point and slightly to the north west. This was the route the vessel had taken on the trip out. He described what happened in these terms:
Everything … looked normal. The only thing I saw that might have been any different was prior to the reef system, I guess along this contour just here I remember seeing two small swells which would have been about a metre high. So not concerning at all. That is all I saw.
Asked if he had encountered swells in the area before he said:
Yes. Small swells yeah. It's common into a shallow bay but yeah just on that contour there.
The contour indicated was running north-south at about 0.9 m depth. He said he was travelling west and the swells were travelling east. He said he was doing 8 knots to go over those swells, which they did without any worries and headed to open water outside.
He then said:
Passing through the channel, I was just about at the end of the channel, going into deeper water, when I encountered a steep swell. Its actually pitched underneath which means it actually grew to – its extent when we were on top of it.
He described the reef at the point they went through it. He said that it would be 100 m from reef to reef. He said the reefs were not exposed on that day. He identified exhibit 3 as being the reef to the left of the vessel, off the port side, at a distance of about 50 m. He produced a sketch that he had drawn upon an aerial photograph of the reef at that point, showing the width of the channel and the distance between the reefs - exhibit 14. He was certain that he had passed through the channel itself in real terms when the accident occurred and the depth at that point was in about 4.5 m.

His reasons for taking the passage through the reef were expressed thus, whilst indicating the positions on the chart:
There's a good reason why we don't travel around the cardinal mark when there's a south-westerly wind approaching because what is your in a sheltered area here. As soon as we get out here, to the north of the cardinal mark you're in the open water. Going through this passage here due to the way the reef system is and its promontory of the land here, … a lot of the travel we are protected from the south-westerly winds, so coming out here, the passenger would be subjected to the wind, increasingly wind and swell, so taking this passage here is much more comfortable ride passengers and a shorter distance travelling from that position where we actually duck back around into the bay for protection, so coming back around that way you're subjected, going from there to - to that distance instead of that distance.
The distance to the South Channel, from the passage taken, was about 1 km. He said that it would not take a great deal of time to go the other way - maybe about 5 minutes. He accepted in cross-examination that he did not say anything about this thinking when he made his statement to the DOT investigator, Ms Matthews. He had said that they regularly pass through this channel during tours and often work in this location as it is in an area where dolphins often feed. When cross‑examined he elaborated saying it was the path they took most of the time and the other way exposed passengers to a longer and more uncomfortable trip back.
He accepted that he had marked a position on a copy of the chart for the investigators which showed a line rather than a point, in the middle apparently of the channel, exhibit 16. He also accepted the records he had made in the ship's log recording early incidents of a similar nature.
On 9 May 2011, an incident report recorded 'heading out of Causeway Bay over swell not fast quite easily slight drop over swell'. Mr Bryant was the skipper on that cruise. He said that this occurred either in the gap in the reef with which this trial is concerned or through the south channel, he was unable to say which. It is recorded that 'lady in the third front row injured her back' (exhibit 17).
On 26 November 2011, another incident report concerned a back injury. Again Mr Bryant was the skipper heading out west of John Point. It was recorded that the seas were 2 m and 'a gentleman in the third row from the front complained of a sore back'. It was said that the vessel was travelling into the weather.
It was also suggested to Mr Bryant that the smaller waves he passed over before the incident were breaking and that the vessel came down with force on the other side. Both suggestions he vehemently denied. He was cross‑examined upon the chart designation of areas of the reef, apparently to suggest that he was steering a course through waves breaking on the reef, which he denied consistently. He explained later that the marked reef on the chart showed what would be visible at the lowest low tide. What is actually visible on any day depends upon the prevailing conditions.
He accepted that, since the accident, the recommendation is that skippers do not navigate that particular passage in swells forecast over 1.5 m. However, his evidence was that 2 m could not be described as a significant swell. He did not agree that to go through the South Channel was necessarily a safer option. He accepted he could have done this, but went on to say:
That's easy to say in hindsight. But when I'm looking in front of me and see nothing to direct me otherwise, there's no peaky swell, there's nothing - there's two metre swell out behind the reef. If there's nothing that I see that's going to cause any injury or anything to the boat or any person on the boat … I can't see why there was any reason why not going to the passage. Like I said before, it's a passage we take quite often to give us some shelter from the sea and the swell.
Mr Bryant impressed me as a straightforward man, more accustomed to being at the helm of a vessel than in a witness box. He was somewhat reactive under cross-examination, understandably in circumstances where clearly he perceived that his expertise and reputation as a skipper was in question, and not all the questions were formulated with precision or clarity. I found him to be honest, and he defended what he did. I am satisfied that he did not intend or apprehend on that day that he was taking any form of risk in relation to the navigation of the vessel or the safety of his passengers.

Ms Ermichina

Alexandria Ermichina is now a market gardener living in NSW. She arrived in WA from Russia some 10 years ago to study wildlife biology and ecotourism at Murdoch University. In 2012, she was working for RWE on 100% Wild as a deck hand and guide. She had been on this vessel for about six months before 23 September 2012. Her evidence was that prior to a tour the briefing from the skipper was always the same:
It always contains how to get on board because it can be tricky from the jetty to the boat. Where to sit. So people that might be pregnant, that have problems with their backs, previous injuries or might be frail of just a bit scared of the ocean, they should sit at the back. Any brief on how to behave on board so stay seated and stand up only then the skipper says so. Any men over board procedures, that type of thing. It is always the same brief.
She said there was an explanation given, that the back of the boat is most stable and the front is more adapted for people that prefer adventure or more comfortable on boats that are not pregnant or scared.
She said 23 September 2012 was an average day like she had experienced many times before. On the way back home, when heading out of Causeway Bay she said:
We headed out and still going slowly to - because just - of the - where we were because of the reef and as a safety precaution and everything was quite usual until a wave literally stood up on top of us and the front of the boat lifted up and went down with quite a lot of force.
She said that she then checked the passengers and found Ms Lightfoot in a lot of pain with her friend. She transferred Ms Lightfoot to the back of the boat where she would be more comfortable as the boat headed back to the mainland.
She said that she had been through the area where this occurred regularly. That there were only a couple of points to go in and out of the bay and this was one of them. She did not recall the exact speed at the time but said the vessel was going slowly and the skipper stopped as soon as
That wave changed into - from a normal wave to something more extraordinary than - than a normal wave.
In cross-examination she was referred to a statement she had made shortly after the accident, in relation to swell and said:
There was swell as in, how can I say, Shoalwater Bay and Causeway Bay are very protected bays by the reefs. Any time, unless on very exceptional days where its flat as flat as it can be, any time leaving a sheltered bay into the open ocean we will we were encountering some swell from the open ocean, yes.
She was directed to her previous description where she said that the swell was getting bigger and she accepted that but said bigger did not mean dangerous. She confirmed that she said she reinforced for everyone to remain seated because she always did that on leaving the sheltered bay to go into the open ocean. She was directed to her previous statement that 'the boat was stable going up and down waves with force but nothing unusual' and she said:
I'm not sure what I meant by that exactly four years ago, … as the power of the boat goes through swell up and down and through it, although the up and down movement on the boat is not that strong because of how its made, being an inflatable boat …
She agreed there was force coming down on the other side of waves, but said:
the force was to the boat not the waves, the waves were not particularly big or dangerous of uncomfortable on the boat
She agreed that there was swell in the ocean prior to the wave and said:
There was swell in the ocean prior that we encountered a freak wave that stood in front of us
She was challenged on whether she gave a direction to passengers as they headed out of the bay, but maintained that she did, in effect to find a seat and sit and went on to conclude:
but there was no need for a warning because I did not see anything to be warned of. The wave just stood up at the last second in front of us. I was just as surprised as everyone else on board.
She was also challenged on what was said in the initial briefing by the skipper and maintained it was the standard brief as she had said.
Ms Ermichina impressed me as a forthright, competent and matter of fact witness, familiar with the sea. She obviously knew the procedures for the tour well. I accept that she had a clear recollection of the events leading to the injury of Ms Lightfoot, but I have reservations about the literal accuracy of what was said in the briefing by the skipper that day. I believe she was relying more upon what the standard requirement was, not her recollection of the day itself. Her description of conditions is in accord with one familiar with conditions offshore. I accept that she saw nothing untoward before the accident.

Issues to be determined

On the evidence, the following questions emerge:
1.What warnings were given?
2.Did any warning relate to the event which occurred?
3.Where and how did the accident occur?
4.Was it negligent to take the route out through the reef, in the existing conditions?
5.Does the waiver signed by Ms Lightfoot form a part of her contract with 100% Wild?
6.If so, does it apply to negligence by the skipper of 100% Wild?
7.Is the waiver nullified by statutory provision?
8.Damages.

The law

The provisions of the CLA apply, relevantly, pt 1A:
5A.Application of Part
(1)Subject to sections 3A and 4A, this Part applies to any claim for damages for harm caused by the fault of a person unless this section states otherwise.
(2)This Part extends to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action.
(3)Divisions 2, 3, 4, 5 and 6 do not apply unless the harm giving rise to the claim for damages arises out of an incident happening on or after 1 December 2003 …
Section 3A excludes certain types of claim, which are not relevant in these proceedings. Section 4A is a general provision in relation to the limitation of parts of the CLA which does not impinge upon the provisions in issue in this action. 'Harm' is defined in s 3 be any kind of harm and to include personal injury, property damage and economic loss.
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm; and
(d)the social utility of the activity that creates the risk of harm.
There are specific provisions for recreational activities. Section 5J concerns waivers. This I will return to later, but s 5I of the CLA provides:
5I.No liability for recreational activity where risk warning
(1)Subject to this section, a person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
…
(4)For the purpose of subsections (1), (2) and (3), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity.
…
(7)A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).
…
(12)A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from an act done or omission made with reckless disregard, with or without consciousness, for the consequences of the act or omission.

Negligence

RWE clearly had a duty to take reasonable precautions in the navigation and control of the vessel to guard against foreseeable risk of harm to passengers. There was no suggestion to the contrary in this trial. Mr Bryant was the employee of RWE and no question has been raised but that RWE is vicariously liable for any negligence on his part.
It is appropriate to deal with the issue of the suggested warning, which was pleaded in defence under s 5I of the CLA, before considering negligence further, as this section nullifies the duty in issue.
The pleaded warning was:
Prior to commencing travel on the vessel the plaintiff was given instruction which stated inter alia that the front of the vessel was more prone to being thrown around and that therefore there was a higher risk of being tossed from the seat of the vessel … . The front of the vessel is more subject to vertical motion as it travels over waves and swell.
[Re-amended defence 7(b)]
Before his passengers boarded the vessel Mr Bryant gave them a briefing. Those instructions did not extend to any warning about not sitting at the front of the vessel for safety reasons, or any particular warning about back injuries. His evidence fell short of that detailed warning. I have set out above his evidence in relation to his briefing on that day. It came nowhere close to the pleaded warning. There was no suggestion of being thrown about in the seats at the bow at all. There was no suggestion of danger at the front. He spoke of priority seating, seasickness, pregnancy and 'niggles for people with back problems'. He used his hands he said to describe the movement of the boat. Furthermore, neither Ms Lightfoot nor Ms Farah testified to hearing such a specific warning. Ms Farah particularly said that she had a back injury herself and would have noted a direction in relation to safety for people with injuries of that kind. Ms Ermichina put the briefing in the standard terms that were always given. I have above indicated reasons for doubting that she literally remembers the words spoken. The evidence of Mr Bryant and the passengers does not amount to a warning that those seated at the bow were at risk being thrown around and injured should the vessel encounter swell.
Whilst a warning may not need to precisely to fit the events in detail, it must be a warning which relates to the risk, such that a person could act upon it realistically.
The briefing given by Mr Bryant to the passengers before they boarded did not refer to the risk of being thrown into the air and injured, it may have been conveyed that passengers seated at the front of the boat might experience more movement, but what was said according to Mr Bryant could not be called a warning or relevant to the events which occurred.
I conclude therefore that the evidence does not support the defence pleaded by RWE under s 5I of the CLA.
The issue then is whether Mr Bryant should have navigated the vessel through the reef at the point which he did on that day. Whilst taking this route, the vessel encountered the wave which caused the movement of the boat which threw Ms Lightfoot in the air.
Whether navigating the vessel in this way amounts to a breach of duty, by failing to take those precautions which a reasonable person would have done, is to be judged without the benefit of hindsight: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 [31], [40].
The principal authorities in relation to whether there has been a breach of a duty of care are well-known:
The tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury des not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 – 48 (Mason J).
The principle was summarised by Gibbs CJ in Turner v State of South Australia (1982) 56 ALJR 839, 840:
where it is possible to guard against a foreseeable risk which although perhaps not great nevertheless cannot be called remote or fanciful by adopting a means which involves little difficulty or expense the failure to adopt such a means will in general be negligent.
The principles enunciated above are reflected in the provisions of s 5B of the CLA, with the express addition of the 'social utility' of the activity which creates the risk. However, it has been said that the dicta in Turner v State of South Australia, were perhaps at 'the high water mark' of liability in this area. Liability has to take into account the significance of the risk and whether a reasonable person would have taken precautions, with regard to the probability that the harm would occur and the likely seriousness of the harm.
Section 5C of the CLA sets out general principles in relation to causation. No issue of causation was raised in the trial, rightly so, on these facts. Ms Lightfoot was a passenger on a vessel navigated by a professional skipper. She was entirely in his hands as to that navigation and her safety. The behaviour of the vessel when it encountered the larger wave resulted in the bow rising up and Ms Lightfoot being thrown and falling heavily against the back of her seat, causing her injury.
Therefore, if the navigation was negligent, in the sense that concept is set out in s 5B of the CLA, as alleged, that navigation of the vessel was a necessary condition to the occurrence of that harm. It is appropriate for liability to extend to RWE, the employer of the skipper and operator of the vessel, pursuant to s 5C of the CLA, as it is the business venture of RWE from which it presumably profits and the nature of the activity necessitates that the passengers are totally dependent upon the safe conduct of the tour at sea.

Past gratuitous services were calculated on the basis of 40 hours a week from the date of the surgery until the end of 2012, 7 hours a week for the following 6 months and 3 hours a week there after, which corresponds with the evidence given by Mr McManus and was not disputed. In tabular form, updated, this is as follows:

Start date

Finish date

Weeks

Hours

Rate

Cost

24.09.12

31.12.12

14

40

31.10

17,416.00

01.01.13

15.07.13

28

7

32.45

6,360.20

16.07.13

14.04.17

195

3

33.00

19,305.00

Total

43,081.20

I accept the evidence of Mr McManus and Ms Farah as to the initial needs of Ms Lightfoot for assistance. I also accept that given her residual problems and the good sense in taking care of her back, it is reasonable that she have an allowance for 3 hours of help per week in the future, to cover heavy house or garden work which she could or should not do. I accept that this will be a continuing need. Ms Lightfoot is now 38. This restriction on heavy work is not going to diminish with age, as a matter of common sense. It is not related to her retirement age but will continue thereafter. At a rate of $33 per hour, 3 hours per week, using the 6% multiplier tables the calculation is $99 x 809.4 = $80,130.
There are also the costs of future medical treatment. The evidence in relation to the removal of the current device was that it would cost about $10,000. This was not disputed.
Special damages are agreed at $4,040.70.

Summary

General damages  $95,000.00
Past loss of earning capacity $54,245.00
Past superannuation   $7,305.00
Interest on past losses   $8,420.00
Future loss of earning capacity  $60,000.00
Surgery to remove pin/screws  $10,000.00
Future physiotherapy & other post‑operative care                  $2,000.00
Future medication  $500.00
Travelling, past  $1,000.00
Future travel  $1,000.00
Care and assistance –
Past$43,081.20
Future – during recovery from surgery for pin removal        $30,000.00
generally$80,130.00
Special damages (agreed)  $4,040.70
Total$396,721.90

Conclusion

The action should be dismissed for the reasons I have given above. Damages are provisionally assessed at $396,721.90.

Start date	Finish date	Weeks	Hours	Rate	Cost
24.09.12	31.12.12	14	40	31.10	17,416.00
01.01.13	15.07.13	28	7	32.45	6,360.20
16.07.13	14.04.17	195	3	33.00	19,305.00
Total	43,081.20