Nixon v Lines

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA

COMMON LAW DIVISION

S CI 2015 06093

ANTON NIXON	Plaintiff
v
ROBERT LINES	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Mildura
DATE OF HEARING:	17, 18, 19 & 20 July 2017
DATE OF JUDGMENT:	29 November 2017
CASE MAY BE CITED AS:	Nixon v Lines
MEDIUM NEUTRAL CITATION:	[2017] VSC 723

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NEGLIGENCE – Personal injury – Plaintiff injured when struck by propellers of houseboat outboard motors – Defendant reversed houseboat when Plaintiff was behind it – Breach – Identification of risk of harm – Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220 (25 August 2015) applied – Causation – Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 (9 April 2015) distinguished – Contributory negligence – Civil Liability Act 2002 (NSW) sections 5B, 5D, 5F, 5G, 5H and 5R.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D Clements QC with Mr M J Hooper	Maurice Blackburn
For the Defendant	Mr K P Rewell SC	McInnes Wilson Lawyers NSW

HIS HONOUR:

In October 2014 a group of friends, which included Mr Nixon and Mr Lines, arranged to spend a weekend holidaying together cruising on the Murray River near Mildura on the houseboat Absolute Indulgence, which they hired for that purpose. Another of the group, Mr Wilson, brought a ski boat and a jet ski for the weekend. Mr Nixon, Mr Lines, Mr Wilson and others joined the houseboat in Mildura early on the Friday afternoon. The remainder of the group, who had work commitments that afternoon, were to join the houseboat in the evening at Gol Gol, a small township located on the Murray River some kilometres upstream of Mildura. After receiving some instruction from an employee of the houseboat hire company, Mr Lines drove the Absolute Indulgence into the middle of the Murray River, where the jet ski and ski boat were tied to the rear of the houseboat. Mr Lines then proceeded to drive the houseboat upstream towards Gol Gol, initially using lower deck controls, but after a short distance moving to operate the houseboat from controls located on the upper deck.

In the next hour or so the ski boat came loose twice from the houseboat. On the first occasion Mr Wilson and another guest rode the jet ski to retrieve the ski boat. On the second occasion, Mr Wilson accompanied by Mr Nixon, intended to again use the jet ski to retrieve the ski boat. Mr Lines decided on this occasion to reverse the houseboat closer to the ski boat. In circumstances which are controversial, both Mr Wilson and Mr Nixon came to be in the water directly behind the houseboat. Mr Lines admitted that while Mr Nixon was in the water, the outboard motors of the houseboat were in reverse gear, which resulted in Mr Nixon’s body being drawn towards the propellers of the motors. Mr Nixon’s legs were struck by the propellers of one or both of the motors, causing injuries resulting in above-knee amputation of his left leg and below-knee amputation of his right leg.

There was no dispute that at the time of the accident Mr Lines was controlling the houseboat using the upper deck controls and from that position was unable to see the lower deck; that Mr Lines knew Mr Wilson and Mr Nixon had moved to the lower deck intending to go onto the swim deck at the rear of the lower deck to board the jet ski in order to retrieve the ski boat; and that Mr Lines did not communicate to Mr Nixon his intention to reverse the houseboat towards the ski boat. The major factual dispute between the parties relates to how Mr Wilson and Mr Nixon came to be in the water behind the houseboat. Mr Nixon said he and Mr Wilson boarded the jet ski by stepping onto it from the swim deck and that the houseboat was then reversed, pushing the jet ski over on one side causing Mr Nixon and Mr Wilson to fall from the jet ski into the water behind the houseboat. The case for Mr Lines was that the houseboat was already moving backwards when Mr Nixon and Mr Wilson were standing on the swim deck, that this was causing the jet ski to move about in the water with the apparent risk that the houseboat would go over the top of the jet ski, and that in an effort to avoid damage to the jet ski Mr Nixon and Mr Wilson jumped into the water immediately behind the reversing houseboat. In relation to this factual dispute, Mr Lines placed great reliance on a statement made by Mr Wilson recorded on video by an investigating police officer on board the Absolute Indulgence after the accident. Mr Wilson did not adopt that statement in evidence given at trial.

Mr Nixon brings this proceeding claiming that there was negligence by Mr Lines first, by placing the houseboat into reverse gear and reversing it without giving any warning to Mr Nixon that he was going to do so; secondly, placing the houseboat into reverse and reversing it without first ensuring there was no one at the rear of the houseboat; and thirdly, reversing the houseboat using the upper deck controls rather than the lower deck controls, with the result that he had no opportunity to see the rear of the lower deck and the swim deck to ensure that they were clear.

Mr Nixon’s claim is to be determined pursuant to the provisions of the Civil Liability Act 2002 (NSW) (the Act). The circumstances of the case and the defence pleaded by Mr Lines direct attention to s 5B of the Act in relation to assessment of breach of duty; s 5D in respect of causation; ss 5F, 5G and 5H in relation to obvious risk; and s 5R in relation to contributory negligence.[1] Application of provisions of the Act necessarily depends on resolution of factual disputes between the parties.
[1]Mr Lines also pleaded reliance on s 5I of the Act in relation to inherent risk. However, by closing address there was no real reliance on that pleading and it is unnecessary to address it in these reasons.

On the morning the trial commenced the parties advised that they had agreed the quantum of Mr Nixon’s damages at $4 million, inclusive of interest to the date of judgment.

The Absolute Indulgence

A view was conducted of the Absolute Indulgence on the first day of the trial. The superstructure of the houseboat is constructed on a flat largely rectangular base, and consists of a lower deck and upper deck. Most of the lower deck is taken up with internal areas. There is an external rear deck. A stainless steel fence crosses the rear deck dividing it into two areas. Outside and to the rear of the fence is the swim deck. Guests are able to access the swim deck by going through one of two gates in the rear fence, one towards the port side, and the other the starboard. The gates open inwards. There is a step down from the rear deck onto the lower swim deck. The swim deck consists of a stainless steel structure and wooden platform set slightly above water level. It is irregular in shape. The two Mercury outboard motors, which power the houseboat, are fixed side by side in the centre of the swim deck. A narrow strip of the swim deck runs across behind the outboard motors. On either side of the outboard motors the swim deck cuts back in towards the body of the houseboat, then out again, forming a V shape in the deck. A stainless steel ladder was fixed to the port side of the swim deck, allowing swimmers to climb into and out of the water. Two photographs taken on the day of the accident show the swim deck, the rear fence, part of the rear deck within the fence line and the ski boat in position attached at the starboard side of the swim deck.

A small red sign with white writing attached to the internal side of each swim deck gate reads:

NO ACCESS TO SWIM DECK WHILE MOTORS OPERATING

The internal lower deck cabin is broken into a number of areas. At the very front and centre of the cabin are the lower deck controls, which include keys to start and turn off the motors, port and starboard gear/throttle controls and a steering wheel. The driver has an unobstructed view forward through windows which run across the front of the cabin. The centre and starboard side of the lower deck cabin consist of an open kitchen, dining and lounge area. There are windows running down most of the starboard side of the cabin, which allow the driver a view in that direction. A glass sliding door and window are located in the centre and towards the starboard side of the rear wall of the cabin, allowing the driver a restricted view of the rear deck and swim deck. Running along the port side of the cabin are bedrooms and bathrooms. These obstruct the driver’s view of the port side of the houseboat and the port side of the rear deck.

There is an external staircase leading from the starboard side of the fenced section of the external rear lower deck to the upper deck. The stairs face forward and back. The upper deck is smaller than the lower deck. It has a roof, but is almost entirely open on the sides. The upper deck controls for the houseboat are located at the very front of the upper deck in the centre. Railing runs around the sections of the upper deck which are open. Other features of the upper deck include a spa, bar area, table with seats and barbecue. From the upper deck controls the driver of the houseboat has an unobstructed view forward, a reasonably open view to the port and starboard side, and a view to the rear of the houseboat. From the upper deck controls the driver cannot see the rear lower deck, the swim deck or the water behind the houseboat. The upper deck controls are simpler than the lower deck controls, but include a steering wheel and port and starboard gear/throttle control levers.

What happened?

Anton Nixon and his partner, Donna Stevens, Robert and Nicky Lines, Colin and Lianne Wilson, Josie Peterson, Candice Nixon and Colin Wilson’s nephew, Tiardi, all joined the houseboat at the Mildura marina on the afternoon of 24 October 2014.

Mr Nixon and Ms Stevens arrived at the marina early in the afternoon and loaded their luggage, food and beverages onto the houseboat. Mr Nixon then received a telephone call from Colin Wilson asking him to help Mr Wilson bring the ski boat and jet ski to the marina, which he did. When they arrived back at the marina, Mr Wilson and Mr Nixon put the jet ski and the ski boat into the water and tied them to the back of the houseboat.

While the houseboat was still docked in the marina an employee of the hire company gave the guests an induction to the general workings of the houseboat. The induction was conducted both upstairs and downstairs. Mr Nixon said he did not hear the All Seasons staff members say anything about when passengers were allowed to go through the rear gate onto the swim deck. He said the All Seasons employee told them the Absolute Indulgence could not be reversed out of the dock with the jet ski and ski boat attached to the back. Mr Lines agreed, and said:

Yeah, no, no he — yeah he did, he was concerned because we had the boats and the jet ski so he just made a point that be careful when you are pushing or going backwards with these vessels that are floating behind.

In response to that instruction Mr Nixon drove the jet ski and Tiardi the ski boat out into the Murray River and waited for the houseboat. The houseboat was driven out of the marina into the river, where Mr Lines was given instruction in its driving and control. Mr Lines drove the houseboat to the riverbank to allow the All Seasons employee to disembark. He then drove the houseboat back out into the river and Mr Nixon and Tiardi brought the jet ski and the ski boat to the rear of the houseboat and they were tied on. Mr Nixon and Tiardi re-joined the group on the houseboat and Mr Lines then proceeded to drive the houseboat upstream towards Gol Gol. Up to that stage the lower deck controls had been used by the All Seasons employee and Mr Lines to drive the houseboat. After a short time Mr Lines moved to drive the houseboat using the upper deck controls.

Initially members of the group busied themselves unpacking clothing, food and beverages. As the afternoon progressed passengers found their way to the top deck of the houseboat. Mr Lines was driving the houseboat using the upper deck controls. Each member of the group, with the exception of Tiardi, was consuming alcohol.

Approximately half an hour after leaving Mildura, the ski boat came loose from the houseboat. Mr Wilson and Tiardi went downstairs, got on the jet ski together and drove out to the ski boat. One of them then got into the ski boat, and each vessel was driven back to the houseboat and re-attached.

Mr Lines drove the houseboat upstream to a point he estimated was roughly a kilometre past the Gol Gol Hotel where he said there ‘was a big long straight and a big turning area’ in the river. He then commenced a U-turn on the river intending to travel back downstream for a distance of approximately two kilometres to the mooring point. Mr Lines said he was about three-quarters of the way through the U-turn when he heard one or two people say, ‘the boat has come off’.

Mr Wilson said to Mr Nixon words to the effect, ‘Let’s go and get the speedboat’. Mr Nixon then got out of the spa and followed Mr Wilson down the stairs to the rear lower deck and through one of the gates onto the swim deck. The jet ski was still in position, attached to the port side of the swim deck. Mr Nixon followed Mr Wilson to the port side of the swim deck to a point close to the jet ski.

Mr Lines was aware that Mr Wilson and Mr Nixon had gone down the stairs from the upper deck to the rear lower deck and knew that it was their intention to again drive the jet ski to retrieve the ski boat. From the upper deck controls Mr Lines had no view of the lower deck, the swim deck, the jet ski or the river for some distance behind the houseboat. This meant that as they descended the stairs, Mr Wilson and Mr Nixon went out of Mr Lines’ view.

Mr Lines heard two people say words to the effect ‘reverse it up’, and he decided to reverse the houseboat to assist in the process of retrieving the ski boat. He did not intend to reverse the houseboat up to the ski boat, but simply to get the houseboat closer to the ski boat so that the distance which Mr Wilson and Mr Nixon would have to travel on the jet ski to retrieve the ski boat would be less. Mr Lines did not communicate to Mr Nixon his intention to reverse the houseboat towards the ski boat.

As stated, Mr Wilson and Mr Nixon both came to be in the water behind the houseboat. The houseboat reversed and Mr Nixon’s legs were drawn into the propellers of the outboard motors. Mr Nixon’s left buttock and both legs were struck by one or both propellers. After being struck, Mr Nixon then surfaced beneath the houseboat in a space created by a V shape in the hull. Mr Nixon could hear his friends yelling out to him. He was able to move forward beneath the houseboat, and surfaced again at the front of the houseboat. One or more of his friends then pulled Mr Nixon from the water onto the front lower deck of the houseboat.

I will now deal in greater detail with events which occurred after the second occasion the ski boat came loose.

Instructions given to Mr Lines

Mr Lines acknowledges that he was told by the hire company employee to be careful when reversing the houseboat, and to be careful about where he was backing. Mr Lines was asked:

Was there any discussion between you and the employee of the hire company about how you could operate the boat when the jet ski and the ski boat were attached?---Yeah. The gentlemen did say that of course you are allowed to have pleasure boats and jet skis on - on the back and that's just normal. He told me to be careful when backing backwards, that it is okay for it to be on the boat but just be careful that you're not going fast or - or where you're backing, so he did explain to me that yes it's okay for them to be on the back but be careful and acknowledge or know that they're on the back and just do it slowly.

Mr Lines agreed he was told it was preferable to use the lower deck controls when reversing the houseboat, and he understood that was because you had a better view of what was behind the boat from the lower deck controls. Mr Lines said he used the lower deck controls to reverse the houseboat when he was under instruction by the All Seasons employee. He agreed from the lower deck controls the driver has some view of what is behind and would see someone walk across the swim deck.

The first occasion the ski boat became loose

Mr Lines said that when he heard and saw the ski boat had come loose, his first reaction was to stop the houseboat. He said if you just put it in neutral momentum will cause the boat to continue to go forward, so you put it in reverse to stop the houseboat moving forward. Mr Wilson and Tiardi went downstairs to retrieve the ski boat. Mr Lines said that when the houseboat was stopped, he moved the gear lever/throttle back to neutral and then turned the engines off. At that stage both Mr Wilson and Tiardi were downstairs. Mr Lines said he saw the jet ski heading for the ski boat. He said that when the jet ski and ski boat were brought back to the houseboat, the engines of the houseboat were still off, and that he got underway again when Mr Wilson and Tiardi came back upstairs. In cross examination Mr Lines was asked:

You turned the – one of the reasons you turned the engine off was because you didn't want the houseboat to collide with the jet ski?---Going back to it, whether they took off prior to me stopping and shutting down, I can't – I can't say. They – I don't know whether they took off for the other – for the first time, whether they took off for the boat while the engines were still running or not, because nothing went wrong or nothing happened, but I can't say whether the engines were shut down or we had stopped at that stage when the – – –

In cross examination Mr Lines agreed that he now could not remember whether he put the houseboat in reverse to stop it going forward during the process of the first retrieval of the ski boat, but it was his ‘instinct’ that he did so. Mr Lines was asked:

Yes but this is an example where you’re basing your evidence on what you think you would have done, isn’t it?---Yeah, I can’t remember from two years ago to be exact whether I put it in reverse or not.

You can’t remember whether you put the boat in reverse the first time, can you? True?---True.

The second occasion the ski boat became loose
Anton Nixon

Mr Nixon said he was in the spa when Mr Wilson said to him, ‘Let’s go and get the speedboat’. He said from his position in the spa he could see the speedboat a few hundred metres behind the houseboat. He got out of the spa and followed Mr Wilson down the stairs. Mr Nixon said Mr Wilson was right in front of him as they descended the stairs.

While he was still on the upper deck he was not aware whether the houseboat had stopped or not. Mr Nixon disagreed that anyone said ‘just back up to it’, and said he did not hear anyone say that.

Donna Stevens

Donna Stevens said that she was in the spa on the upper deck with Candice, Anton and Nicky, and they were talking. Mr Lines was driving the houseboat, and Mr Wilson was standing with him at the controls. Ms Stevens said somebody mentioned the ski boat was off again, and:

The next thing was [Mr Wilson] had come from the front, past [Mr Nixon], tapped him to say, ‘let’s go and get the boat’. Then they went down the stairs.

It was put to Ms Stevens that while Mr Nixon and Mr Wilson were still upstairs somebody yelled out ‘back it up’ and she disagreed.

Josephine Peterson

Ms Peterson said the second time the ski boat came loose she was sitting at the bar. She saw the ski boat was a fair distance away from the houseboat. Mr Wilson then got out of the spa pool and asked Mr Nixon if he would give him a hand to retrieve the ski boat. She said she offered to go instead of Mr Nixon. She said at the time the houseboat was not moving, and you could not hear the motors operating. Ms Peterson said when the houseboat was moving upstream you could hear the motors. She agreed that if the houseboat was moving slowly she would not have noticed. Ms Peterson was asked whether at some point in time she heard somebody say ‘back it up’, and she said she did not recall hearing those words.

Candice Nixon

Ms Nixon said she was in the spa with Nicky, Anton and Donna when she heard somebody shout ‘it’s loose again’. Ms Nixon said in response to hearing the ski boat was loose she got out of the spa and went to the back railing and saw the ski boat in the distance, but closer than the first time it was loose. In cross-examination Ms Nixon said when she heard someone say the ski boat has come off she did not notice anything different about the movement of the houseboat, but shortly afterwards it stopped. She said she could not recall the sound of the engines, she did not know where the engines were on the houseboat, and she thought they were inboard engines.

Robert Lines

Mr Lines said he drove the houseboat about a kilometre past the Gol Gol Hotel to a long straight in the river with a large turning area, and began a very slow U-turn. He said he was about three quarters of the way through the turn when he heard one or two people say ‘the boat had come off’. Mr Lines said he looked back straight away and saw the ski boat off, nowhere near as far back as the first time, he estimated about 30 or 40 metres away. Mr Lines was asked:

Did anybody speak to you about what was to happen next?---Yeah, there was noise in the background to reverse up to the – to the pleasure boat. I do remember people saying, ‘reverse up’.

Mr Lines could not remember who said that, or how many people said that. He said he was fine with the idea, he looked back at the ski boat and once again it was his ‘instinct’ to put the boat into neutral and straight into reverse. Mr Lines was asked what happened to the motion of the boat, and he said:

Motion of the boat was not going fast forward anyway. It was a very slow turn. Very slow. So the idea was, once again, once I was in reverse it did take up the reverse. I felt the boat stopping and then I felt the boat going backwards, and…

Mr Lines said he did not pause for any length of time in neutral. Initially he said that when the boat started going backwards Mr Wilson was still on the upper deck and Mr Nixon was in the spa. Mr Lines was then asked:

Was the boat already in reverse when [Mr Nixon] was still in the spa, or do you not know when he got out of the spa in relation to that?---It would be more correct to say that. I – I couldn’t give an exact …

Mr Lines said he heard Mr Wilson say to Mr Nixon ‘come on, Anton. We’re going downstairs to get the boat’, and when he heard those words he ‘would have been in reverse’. Mr Lines said after he heard those words he saw Mr Wilson. When asked why he did not warn Mr Wilson and Mr Nixon that he was going to put the houseboat in reverse Mr Lines said:

There was no chance to speak if they were running down – away and down the stairs. It was – it was gone. It was so quick.

Inconsistently, Mr Lines later said Mr Nixon was still in the spa when he was reversing the houseboat.

Mr Lines agreed he did not warn Mr Nixon that he was going to put the houseboat in reverse, and that he did not say to anyone that he was going to put the houseboat in reverse. Mr Lines was cross-examined about what were said to be inaccuracies in his evidence, and was then questioned as follows as to his memory of the events of the day:

It’s a suggestion that you really can’t remember the details of what happened on the boat that afternoon, 24 October, and so what you told his Honour about it yesterday was what you had reconstructed in your mind based on what you think would have happened?---I have to go with what you’re saying, yes.
Yes. So, what you told his Honour yesterday was what you think would have happened that afternoon?---That’s pointing that way, so, yes, you’re correct.
Because you have no actual memory of the details, do you?---It’s showing that way, yeah, as much as you can think you remember, it’s – as I’m finding out now, you are correct.

In cross-examination Mr Lines was asked the following questions in relation to the sequence of events:

I suggest to you the sequence of events is as follows. You heard someone say – or you heard Colin say to Anton words to the effect of, ‘the speed boat’s loose again, come downstairs and help me get the speedboat’. Correct?---To those words, yes.
The next thing that happened is they went downstairs. Correct?---Correct.

Then you heard a voice saying, ‘reverse it up’?---Correct.
Correct? And straight away, after you heard that voice, you put it in reverse. Correct?---Correct.
Then it took a short time to move from going forwards to being still and then going backwards?---Correct.
That’s the sequence, isn’t it?---Correct.

A short time later Mr Lines said he disagreed, and that he heard ‘reverse it up’ before Mr Wilson and Mr Nixon went downstairs. Mr Lines was asked:

Alright, but you didn’t do anything else, why ask a guest to check if the coast was clear?---I – I remember saying, ‘yes, I’ll reverse the boat up’ so when people …
No, you did not say, ‘yes, I’ll reverse the boat up’. You’ve never said that before, have you?---No, but it’s just come to me now.

It was then put to Mr Lines that he had not made any mention in his statement to police of giving a warning and he said:

It’s just in my head now, yeah.

Further questions were asked of Mr Lines about this issue, including:

You did not say, ‘I’ll reverse the boat up’?---I’ll have to go with that, but for some reason, I feel like I – yeah, ok. Yeah.

It was again put to Mr Lines that he did not say he was going to reverse the boat up, and that he was reconstructing this, and he agreed. Mr Lines agreed that he did not say anything to Mr Nixon or Mr Wilson about reversing the boat up.

Mr Lines was asked whether he remembered the process of putting the houseboat from forward to neutral and into reverse and he said he put the boat into neutral then to reverse because he wanted to stop the boat, and that he was confident that is what he would have done. Mr Lines agreed he could not recall whether the gears were in neutral for two seconds or five seconds, but said it was definitely not in neutral for a minute or so. He said he put the boat in neutral and reverse by instinct, and that he put the boat into reverse quickly.

Mr Lines was again taken to the sequence of events and he said he recalled looking back and hearing people say ‘reverse up’, then Mr Wilson yelling out to Mr Nixon to come down the stairs. It was put to Mr Lines that earlier in his evidence he had got the sequence the other way around, and he was then asked:

Is the true position that you can’t remember now the precise order in which these events happened?---I’d go along with that, precise orders. I’d go with that.

Colin Wilson

Mr Wilson said he heard someone yell out the ski boat had come off again, and at the time he was either in the spa or beside the spa. He said he thought Mr Nixon was also in the spa, but he was not certain. He said to the best of his knowledge everybody was up on the top deck, and Mr Lines was driving the houseboat. Mr Wilson agreed he may have said something before going downstairs, but he could not recall what he said. He said somebody followed him downstairs, and he assumed that was Mr Nixon.

The movements of Mr Wilson and Mr Nixon to the lower deck and onto the swim deck

There is no dispute that on the second occasion the ski boat came loose from the houseboat Mr Nixon followed Mr Wilson downstairs to assist with retrieval of the ski boat. Mr Lines knew that the method used by Mr Wilson and Tiardi on the first occasion the ski boat came loose was to ride together on the jet ski to the ski boat and to then bring both vessels back to the rear of the houseboat. Mr Lines understood that Mr Wilson was likely to use the same method to retrieve the ski boat on the second occasion. Mr Lines was asked:

Then from that moment on, that is from the time of the first retrieval, you knew that if the speedboat came loose from the back of the houseboat Colin Wilson’s preferred method of retrieving it was to go down to the back of the houseboat, onto the swim deck, onto the jet ski and then to drive it to the loose boat?---Correct.
And so you knew there was a pretty good chance that if it came loose again and Colin Wilson was involved, he’d do the same thing. Correct?---Correct.

Mr Nixon said he descended the stairs and went through the starboard gate onto the swim deck behind Mr Wilson. Mr Nixon said he followed Mr Wilson walking across the swim deck behind the outboard motors to the port side of the swim deck where the jet ski was. Mr Nixon said it was Mr Wilson who opened the gate leading to the swim deck and that he, Mr Nixon, did not see any sign on the gate. In cross-examination Mr Nixon confirmed that he did not notice the sign on the gate at any time.

Mr Wilson said he remembered going down the stairs and walking through a back gate. He said the gate was virtually directly in front of him when he came down the stairs. Mr Wilson said the jet ski was on the left hand [port] side. Mr Wilson said his intention was to jump on the jet ski to retrieve the ski boat. He said somebody followed him downstairs and he assumed that was Mr Nixon.

Operation of the motors and movement of the houseboat and jet ski
Anton Nixon

Mr Nixon agreed that while he was still on the upper deck he was not aware which direction the houseboat was moving and whether or not the engines were running. He said it was when he got to the bottom deck that he saw the water behind the houseboat was flat and the jet ski was on a 45 degree angle, and he added:

I didn’t think [the houseboat] was moving because there was no – there was no waves behind the boat or the jet ski, if it was moving, would have been getting towed straight or…

Mr Nixon said while he was on the swim deck the jet ski was still in the water, not rocking either side to side or back to front. He said he believed the motors were idling in neutral at the time because the water behind the houseboat was still and he could hear the motors idling as he walked close to them. Mr Nixon said Mr Wilson stepped off the swim deck onto the jet ski and then he followed. He said it was a big step, but he knew he could take the step so he did. He said his right foot went onto the jet ski first then his left foot came over the passenger seat. He was asked:

What happened next?---I remember sitting down [on the jet ski] and then seeing a lot of bubbles coming out from behind the boat and then the jet ski turned to the side. I tried to stand up but we sort of half dived behind it and that’s when I went under the props.

Mr Nixon said he knew the houseboat had to be coming back because it turned the jet ski over, adding that the houseboat pushed the jet ski. He said that before he stepped onto the jet ski the houseboat motors were idling, by which he meant they were in neutral. He said the outboard motors make much less noise when in neutral than they do when they are in gear. He disagreed that Mr Lines put the engines in neutral for only a second or so. He disagreed that by the time he got to the bottom of the stairs it was obvious from the sound of the motors that they were in gear at low revs. He disagreed that by the time he got on the swim deck the houseboat was moving backwards.

Mr Nixon said that at no time before he sat down on the jet ski did Mr Lines give him any warning about putting the houseboat in reverse, and he did not hear anyone say anything about putting the houseboat in reverse. He said he did not think the houseboat was going to be reversed at any time, and if he had he would not have stepped off the swim deck onto the jet ski. Mr Nixon said he and Mr Wilson went straight through the gate then stepped onto the jet ski, and that this only took a few seconds.

Donna Stevens

Ms Stevens said that after she heard the ski boat had come loose she got out of the spa and went up near Mr Lines who was at the controls. Ms Stevens agreed that she was not sure whether the houseboat was going forwards, backwards or had stopped when Mr Nixon and Mr Wilson went downstairs. She said she heard Tiardi yell from the bottom deck ‘back it up’. She then saw Mr Lines move the throttle control. She said before the throttle control was moved the houseboat was sitting still, and after the houseboat reversed. She said at that stage Mr Nixon and Mr Wilson were not upstairs.

Josephine Peterson

Ms Peterson said it was a short time after Colin and Anton went downstairs that the houseboat started reversing.

Candice Nixon

From her position at the back rail of the upper deck Ms Nixon said she saw Mr Nixon step onto the jet ski. She said when Mr Nixon stepped onto the jet ski it was stable and not moving around in the water. When Mr Nixon got on the jet ski he sat down.

She heard somebody say, ‘Do they want him to reverse the boat up?’ She said at that stage Mr Nixon was downstairs. Ms Nixon said she did not remember whether the houseboat was in reverse when Mr Nixon stepped on the jet ski. In cross-examination Ms Nixon was asked:

When you looked to the back of the houseboat, could you tell whether the houseboat was moving or not?---No. I don’t recall any water moving around the jet ski. I remember when Anton got on, it was easy for him to get onto the jet ski and it wasn’t moving around.
You see, you wouldn’t even know where to look for water moving around from the engines of the houseboat, would you?---Possibly not, but I – I remember not seeing water moving at all.

Ms Nixon said that once she saw Mr Nixon on the jet ski she turned away. She assumed they were going to get the ski boat and come back. She did not recall seeing at any point the jet ski going up and down in the water, or rolling from side to side.

Robert Lines

I have summarised above the evidence of Mr Lines relating to the movement of the houseboat.

Colin Wilson

Mr Wilson was asked whether by the time he got to the bottom of the stairs the houseboat was moving and he said there was a lot of bubbling at the back of the houseboat from the motors, but he could not recall whether the houseboat was moving or stationary with the motors running. He said the jet ski was pushed up hard against the houseboat like there was pressure on the jet ski itself, but he was not sure whether the houseboat was in motion or not.

Mr Wilson said when he went onto the swim deck his intention was to get onto the jet ski and use it to retrieve the ski boat. He said to his knowledge neither he nor the person who got on behind him had any difficulty getting on the jet ski. He was pretty sure that when he was sitting on the jet ski he reached over the front to try and untie it from the houseboat. He said at that stage his intention was still to use the jet ski to get the ski boat. He then said:

What was – what I can recall is me reaching over to try and undo the – the rope off the jet ski, but – but the pressure of the houseboat was forcing the jet ski under the houseboat, and I know there was pressure there. It was – and that’s why it was – because it was still tied on, which is trying to force the jet ski to go under the houseboat and I – I remember that.
So was that happening before you got on the jet ski or after you got on the jet ski or both?---Little bit of both. Mainly when I was sitting on the jet ski.
What was happening with the houseboat while you were on the swim deck before getting on the jet ski? Was the houseboat stationary or moving?---That’s where I’m a little bit unsure, that timeframe, because, like, old matey over there was asking me that question, what was the water like? Yeah, well, as far as I’m concerned the water was bubbling away so, you know, far as I’m concerned that wasn’t neutral. That was still engaged in either forward or reverse, but I can’t – I can’t be certain if it was in reverse or was in forward. Um, but the thing I can say is now that it would have been in reverse because it’s plain to you after trying to get on a jet ski the pressure of that houseboat coming back and trying to force that jet ski under it only tells you it was in reverse.
So that tells you it was in reverse but you can’t recall from your observations at the time that it was in reverse. Is that correct?---Correct, that’s correct.

A short time later I asked Mr Wilson:

So we are at the point where you and the person behind you are on the jet ski and you’re attempting to undo the front of the tie?‑‑‑Correct.
What happens next, do you remain on the jet ski?‑‑‑That’s - that’s where it was all a blank, all I could remember was the - the jet ski going over, last thing I can remember was me under the houseboat with the jet ski above me and the houseboat above the jet ski.
When you said the jet ski going over, did it go over side to side or end to end?‑‑‑Half of it would’ve been end to end because what I can recall is the - the front half of the jet ski was already submerged under the houseboat and then all I can remember was I was upside down with the jet ski above me and the house boat above it and then everything was just a blank.
So you end up in the water?‑‑‑Correct.

In cross-examination Mr Wilson agreed that at some point in time the houseboat started reversing because there was pressure against the jet ski, but he cannot remember when the houseboat started reversing. He agreed it was possible that when he and Mr Nixon walked across the swim deck the motors of the houseboat were in neutral.

Video statement by Colin Wilson on the day of the accident

The following is a transcript of the statement recorded by Detective Senior Constable Oelsnik:

DETECTIVE SENIOR CONSTABLE OELSNIK:      The time now is 23 minutes past 6.00pm on Friday 24 October 2014. My name’s Ben Oelsnik. I’m a detective and I’m with Colin Wilson, who’s, we’re on a vessel, the houseboat by the name of Abundance where there’s been an accident and a person by the name of Anton Nixon has been injured and Colin is just going to explain, give us a run through as to how it happened. Colin, if you could just tell us…
COLIN WILSON:      The ski boat was moored to this side [starboard] of the houseboat. The jet ski was moored to that side [port] of the houseboat.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Yep.
COLIN WILSON:      We’re virtually coming down the channel here [indicating the Murray River]. Done a U-turn. Started to drift back down that way. The rope snapped off the jet boat.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Yep.
COLIN WILSON:      So we seen the boat come off. Me and the skipper said let’s reverse it, the houseboat back up to it. Prior to that happening we come down here, me and Anton Nixon went through that gate over there.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Yep.
COLIN WILSON:      The jet ski was still moored to the boat, it started to go up and under.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Right.
COLIN WILSON:      We thought we were doing the right thing by jumping [indistinct] at the time and flipping it back up.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Yep.
COLIN WILSON:      But the suction of the two motors here pulled us under.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Okay.
COLIN WILSON:      I yelled out to the skipper to stop. Unfortunately the skipper couldn’t hear me cause he’s right down the front end of the boat up top. I yelled out to Anton. Anton was under the vessel here, don’t know exactly whereabouts. Two minutes later Anton come up front of the boat.
Then my nephew dragged him, put him on the front of the houseboat and rang triple-000.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Speaking with you earlier you indicated that you went off into that area where the jet ski was tied up to, that you were kind of sucked in, then you went off?
COLIN WILSON:      I was sucked under but I came out that side [port] of the houseboat. Unfortunately I can’t be exactly but I’m just assuming by Anton’s injuries that he’s come in right under the two motors here.
DETECTIVE SENIOR CONSTABLE OELSNIK:      Okay. All right.

Assessment of witnesses

Mr Nixon

Mr Nixon was cross-examined at length in relation to the circumstances which led to him being in the water behind the houseboat. His evidence was consistent. There was no challenge in cross-examination to Mr Nixon’s truthfulness. However, it was put to him that his evidence represented a reconstruction, and that his memory of things had been hazy from the beginning and Mr Nixon said that was wrong, that he knew exactly what happened and that his statement had been the same all the way through. I note Mr Nixon’s evidence was also consistent with the statement he made to Detective Senior Constable Oelsnik on 9 February 2015. The injuries sustained by Mr Nixon, and the circumstances in which they were suffered, were horrific. A number of the witnesses who gave evidence, in particular Mr Lines and Mr Wilson, were obviously still deeply affected by what occurred. Of all the witnesses, with the possible exception of Ms Nixon, Mr Nixon seemed most able to give his evidence dispassionately. I was impressed by Mr Nixon as a witness. His evidence was clear, logical and, as I have stated, consistent.

Donna Stevens, Josephine Peterson and Candice Nixon

I formed a positive impression of Ms Stevens, Ms Peterson and Ms Nixon as witnesses. Each witness tried her best to answer the questions posed to her. When giving evidence, each witness confined herself to what she actually remembered of the events.

Ms Nixon’s evidence was particularly important, because she said she saw Mr Nixon step from the swim deck onto the jet ski and sit down behind the driver. There were two challenges to Ms Nixon’s evidence. First, Ms Nixon was criticised on the basis that her memory of the events was poor because she was unable to say who it was that sat on the jet ski in front of Mr Nixon, what sort of motors powered the houseboat and where they were located, and how Mr Nixon came off the jet ski into the water. There is nothing in this criticism. When Ms Nixon looked at the swim deck she saw Mr Nixon stepping onto the jet ski. It is understandable her attention was drawn to this activity, rather than to the identity of the person already sitting on the jet ski. There was no reason for Ms Nixon to notice the type or location of motor which powered the houseboat. Ms Nixon looked away from the swim deck before the accident happened, expecting the jet ski to be ridden back to collect the speed boat as was done the first occasion. My impression was that Ms Nixon confined her evidence to her recall of what she saw and heard, and her evidence about those matters was clear and consistent.

The second challenge came in the form of the following questions:

You see, again, I put to you that your recollection so far as Anton sitting on the jet ski was concerned is just wrong?‑‑‑Well, that’s what I remember.
You have been told, haven’t you, that it is important to Anton that he is placed on the back of that jet ski before he was injured?‑‑‑Nope.
You’ve been told that, haven’t you?‑‑‑Nobody told me that.

There is no substance in this attack. It was not established why Ms Nixon would understand it to be important for Mr Nixon to be placed on the back of the jet ski before he was injured. Further, had Ms Nixon’s intention been to mould her evidence to assist Mr Nixon’s case, it seems likely she would have said something about the cause of the accident being the houseboat reversing and the jet ski being pushed over on its side. I regard Ms Nixon as a truthful witness.
Robert Lines

When giving evidence Mr Lines was clearly doing his best to answer questions. However, for three reasons I have reservations about the degree of reliance that I can place on the evidence given by Mr Lines, particularly as to the sequence of events and as to the operation of the motors of the houseboat after the ski boat came loose on the second occasion. First, it was obvious while he was giving evidence that Mr Lines was deeply emotionally affected by the accident and the injuries suffered by Mr Nixon. Secondly, Mr Lines’ conceded a number of times in cross-examination that he had limited memory of the events leading to the tragic accident, and that much of his evidence was a reconstruction rather than actual memory. It was my impression that the upset he felt because of the accident and Mr Nixon’s injuries caused Mr Lines to try hard to work out what had occurred and to search for answers. I was unclear what evidence given by Mr Lines represented his actual memory of events, and what was reconstruction. Thirdly, Mr Lines was uncertain about the sequence of events commencing when the ski boat was noticed to be loose on the second occasion and concluding with Mr Nixon’s accident. Mr Lines gave inconsistent evidence as to the sequence of events.

Colin Wilson

It was also apparent when Mr Wilson was giving his evidence that he was traumatised by the accident, not just by Mr Nixon’s injuries, but also to the frighteningly real risk of serious injury he faced during the accident. Mr Wilson was a reluctant witness at trial. It was clear he did not wish to re-live the accident. This led him to initially profess a very limited memory of events leading to the accident. My impression was that, despite his reluctance, when Mr Wilson was taken carefully through the events of the day and he did his best to answer questions. I regard Mr Wilson’s viva voce evidence as his best effort to recall his observations and experiences in the short period leading to Mr Nixon’s injuries.

Colin Wilson’s video statement

When asked about the statement he made on the day of the accident, recorded by Detective Senior Constable Oelsnik, Mr Wilson said he could recall somebody speaking to him on board the houseboat a few hours after the accident and recording what he said with a video camera, but that he had not seen the video recording since. He was asked:

And did you do your best to answer his questions accurately and honestly?‑‑‑Well I have to say no on that one because you know, mate I was in shock, you know I was still shaking, I nearly lost my goddamn life down there mate. You know, if - if you lost your life how would you feel if somebody asked you questions two to three hours later, you’re not going to remember everything you said and I’ll be honest, I don’t know what I said to the bloke. I could’ve said anything.

Mr Nixon said he was in shock after the accident. It was put to him that when he made the statement on the day the events were fresh in his mind and he said:
…How can it be fresh in your mind when you’ve nearly lost your life?

Mr Wilson was then shown the video and he said he could not remember what he said to the police officer. He was asked:
The rope snapped. I think that’s what you said to the police officer?…---You know, to show me that, you know, like, you know, look at my eyes mate. Look at my face on the video, mate. Like, you know, I, I wasn’t all there. Like, and I’m being honest.

Mr Wilson repeatedly said that he was in shock at the time the video statement was taken, that he was unfocused, and that he did not know whether what he said on the video was the truth. It was put to Mr Wilson that he is recorded telling the police officer he and Mr Nixon thought they were doing the right thing jumping into the water to stop the jet ski going down and under, and that is actually what happened and he said:
Don’t know, can’t remember. Yes, you can jog my memory back. No, no, wait on. You – you keep going on and playing round in circles. Yeah, sweet as. I’m – yeah, I was. Like, mate, like I said, put yourself in my shoes. You don’t want to know what happened to me, mate. You know, far as I’m concerned, I could have been the dead one at the end of the tunnel. We wouldn’t be sitting here having this conversation, would we? But, you know, like, what was the evidence – whatever was said in that video, um, far as I’m concerned, that’s what I said on the day, um, but whether it was 100 per cent accurate what I said, I’m not going to put my hand up because state of mind, I can’t remember, and I’m being honest.

Later the following exchange occurred:
Of course?‑‑‑Once again, what I can recall is upside down on the jet ski, the houseboat, on the jet ski, I’m under the water, I’ve lost consciousness or whatever you call it, and then for some reason I popped up on the side of the houseboat.
You didn’t tell the police officer you were upside down under the jet ski, did you?‑‑‑Well, the video didn’t say that, no.
I want to suggest to you that Mr Nixon was to your left as you were facing backwards, closer to the outboard motors than you were. Was that the position? While you were still on the houseboat?‑‑‑Sorry, you lost me there. Mr Nixon was on my left?
He was to your left, closer to the outboard motors than you were?‑‑‑Probably was, but I’m only trying to tell you what I seen before the video, you know, that once again, all I remember is stepping on the jet ski from the left-hand side, somebody jumping on behind me, which I’m pretty sure was Mr Nixon, because there was a hand on my shoulder, and then everything was a blank after that.

While Detective Senior Constable Oelsnik said Mr Wilson seemed fine to speak to on the afternoon of the accident, and he did not believe Mr Wilson was in shock, he agreed he ‘couldn’t be able to tell professionally’, and that people react differently when they are in a state of shock. Mr Lines submitted that the statement made by Mr Wilson within hours of the accident is likely to be the most reliable evidence of how the accident occurred. For the following reasons I disagree. First, I accept that at the time he made the statement, Mr Wilson was traumatised by Mr Nixon’s injuries, and by his own near escape and that he felt in shock. It is likely the trauma and shock Mr Wilson experienced had an impact on his thinking and on the description of events he gave. Secondly, at trial Mr Wilson did not adopt the video statement and said he could have said anything to Detective Senior Constable Oelsnik. I find Mr Wilson’s evidence in relation to the video statement convincing. Thirdly, the statement is very brief and is, on any view, an incomplete account of events leading to the accident. Mr Wilson makes no mention in the video statement of the method which he, Mr Nixon and Mr Lines all agree was to be used to retrieve the ski boat, that is, for he and Mr Nixon to ride back to it on the jet ski. This important omission demonstrates that the video statement is not comprehensive and undermines the reliability of what is said in the statement. Detective Senior Constable Oelsnik makes no attempt to question Mr Wilson so as to obtain a comprehensive statement of events. Fourthly, it is not clear whether, in the statement, Mr Wilson is describing events in the sequence in which they occurred. For instance, when he said, ‘Prior to that happening we come down here’, it is not clear whether Mr Wilson is saying he and Mr Nixon went to the lower deck of the houseboat prior to them seeing the ski boat had come off, or prior to he and Mr Lines saying ‘Let’s reverse the houseboat’, or prior to Mr Lines reversing the houseboat. Again, Detective Senior Constable Oelsnik makes no attempt to clarify with Mr Wilson the sequence of the events he is describing. Fifthly, in the video statement Mr Wilson does not say clearly how he and Mr Nixon came to be in the water behind the houseboat. The particular sentence on which the defendant relies is:

We thought we were doing the right thing by jumping [indistinct] at the time and flipping it back up.

Having listened and watched the video recording on a number of occasions I remain unable to determine whether the word following ‘jumping’ is ‘on’ or ‘in’. Assuming the word is ‘in’ the statement still does not explain clearly what occurred. Sixthly, the interpretation of the statement urged by Mr Lines is inconsistent with other evidence given at trial which I regard as credible. I refer in particular to the evidence of Mr Nixon that he stepped from the swim deck onto the jet ski, which was supported by the evidence of Ms Nixon and Mr Wilson. Having seen the video Mr Wilson maintained his evidence that he and Mr Nixon stepped onto the jet ski and sat down before the accident occurred. Seventhly, jumping into turbulent water behind the reversing houseboat in the immediate vicinity of the operating outboard motors would be an act of breathtaking stupidity and recklessness. Mr Wilson and Mr Nixon were both experienced with motorboats and, I infer, would have appreciated the extreme foolhardiness of jumping into the water immediately behind the reversing outboard motors. There was no explanation of how Mr Wilson and Mr Nixon, from a position in the water behind the reversing houseboat next to the jet ski, could hope to take any steps to protect the jet ski from damage. The implausibility of the version of events in which Mr Wilson and Mr Nixon jump into the water behind the outboard motors of the reversing houseboat fortifies my conclusion that little reliance can be placed on the content of Mr Wilson’s video statement.

Mr Nixon bears the onus of proving the elements of his cause of action including, critically, how he came to be in the water behind the houseboat. There was a clear contest between two scenarios. The oral evidence at trial strongly supports the conclusion that Mr Nixon was seated on the jet ski when the houseboat reversed, pushing the jet ski over, dislodging Mr Nixon into the water where he was in effect run over by the reversing houseboat. Mr Wilson and Mr Nixon went to the lower deck of the houseboat intending to get onto the jet ski. That is what they, and Ms Nixon, said occurred. There were some inconsistencies between the witnesses. Mr Wilson said he stepped onto the jet ski from the left, whereas Mr Nixon and Ms Nixon said from the right. Mr Wilson said the jet ski was straight out from the swim deck, was pressed against the swim deck, and there was some movement of the jet ski in the water. Mr Nixon and Ms Nixon said the jet ski was still in the water with its right side towards the swim deck. While Mr Wilson was doing his best in the witness box he expressed some difficulty with his memory of events and uncertainty as to sequence. I find the evidence of Mr Nixon and Ms Nixon to be credible and, where there are inconsistencies, I prefer their evidence to that of Mr Wilson. The only evidence supporting the conclusion that Mr Wilson and Mr Nixon jumped into the water behind the reversing houseboat in an attempt to save the jet ski from damage is the video statement made by Mr Wilson. For the reasons given I do not regard that statement as credible evidence of the scenario proposed by Mr Lines. Having heard and observed the witness give evidence, I conclude with confidence that Mr Wilson and Mr Nixon stepped onto the jet ski and were seated when the houseboat reversed and caused them to be dislodged into the water.

Findings of fact

I have reached the following conclusions in relation to the accident and the events leading to it:

(a) At the time it was noticed the ski boat was loose from the houseboat for the second time, most or all of the group were on the upper deck of the houseboat. Mr Nixon was in the spa with Donna Stevens, Candice Nixon and Nicky Lines.

(b) At the time the ski boat was noticed to be loose, Mr Lines had almost completed a slow U-turn in the houseboat to head back downstream to the Gol Gol mooring.

(c) When she heard the ski boat was loose, Candice Nixon got out of the spa and went to the railing at the back of the upper deck.

(d) After it was noticed the ski boat was loose, Mr Wilson asked Mr Nixon to help him retrieve it.

(e) Mr Wilson went down the stairs to the lower deck and onto the swim deck, followed closely by Mr Nixon.

(f) Mr Wilson and Mr Nixon intended to get onto the jet ski from the swim deck and to ride back to the ski boat so that it could be retrieved and re-attached to the houseboat.

(g) Mr Lines knew that was what Mr Wilson and Mr Nixon intended to do when they went to the lower deck.

(h) When he reached the lower deck Mr Wilson walked across the swim deck to a point adjacent to the jet ski, stepped onto it and sat down. Mr Nixon followed a short distance behind Mr Wilson and stepped from the swim deck to a position on the jet ski behind Mr Wilson and sat down. This conclusion is consistent with the evidence of the only three persons who observed events which occurred on the swim deck, namely, Mr Nixon, Candice Nixon and Mr Wilson. I reject an interpretation of Mr Wilson’s video statement which is contrary to the evidence at trial of these three witnesses for the reasons I previously stated.

(i) There was only a short time between it being noticed the ski boat was loose and Mr Wilson then Mr Nixon stepping from the swim deck onto the jet ski. After the ski boat was noticed to be loose, Mr Wilson asked Mr Nixon to assist him. Both then walked the short distance across the upper deck, down the stairs, across the lower deck and swim deck and stepped onto the jet ski. Mr Lines accepted the events happened quickly.

(j) After Mr Wilson and Mr Nixon went to the lower deck, one or more persons said words to the effect, ‘Reverse it up’. This conclusion is consistent with the evidence of Ms Stevens and Ms Nixon. Mr Lines gave inconsistent evidence about whether these words were said while Mr Wilson and Mr Nixon were still on the upper deck, or after they had gone to the lower deck. I prefer the evidence of Ms Stevens and Ms Nixon.

(k) Mr Nixon did not hear anyone say, ‘Reverse it up’, and did not know that it was Mr Lines’ intention to reverse the houseboat towards the ski boat.

(l) Whether the houseboat was reversed towards the ski boat or not, it was still necessary to use the jet ski to retrieve the ski boat. Mr Lines knew this to be so.

(m) When Mr Wilson and Mr Nixon went to the lower deck and while they were on the swim deck there was little movement of the houseboat and the jet ski in the water. This conclusion is consistent with the observations of a number of witnesses. Mr Nixon observed the houseboat was stopped or only moving slowly when he went downstairs, that the water was flat behind the houseboat, there were no waves, to his observation the engines were idling, and the jet ski was sitting still in the water at a 45 degree angle to the houseboat. Ms Peterson thought the houseboat was not moving or only moving slowly. Ms Stevens said that before Mr Lines moved the throttle control, the houseboat was sitting still. Ms Nixon said she could not recall whether the houseboat was moving or not, but she did not see water moving around the jet ski, and she said it was easy for Mr Nixon to get onto the jet ski. Mr Wilson said that whilst there was bubbling at the back of the houseboat he could not recall whether the houseboat was moving when he got to the bottom of the stairs. He also agreed the motors may have been in neutral when he was on the swim deck. He could not say when the houseboat started reversing, but he noticed the pressure of the houseboat on the jet ski more when he was sitting on the jet ski and reached to untie it from the houseboat.

(n) Mr Wilson and Mr Nixon stepped from the swim deck onto the jet ski without difficulty and sat down. When Mr Wilson and Mr Nixon were seated on the jet ski, it was still attached to the rear of the houseboat. I conclude there was little if any movement of the jet ski in the water when Mr Wilson and Mr Nixon stepped from the swim deck onto it and sat down.

(o) Mr Lines said that he responded to hearing ‘Reverse it up’, or words to that effect, by concluding that that was what he should do. It is likely that in response to hearing ‘Reverse it up’, Mr Lines moved the throttle/gear lever causing the houseboat to reverse. This conclusion is consistent with the evidence of Ms Stevens, who said she was standing close to Mr Lines at the upper deck controls after ‘Reverse it up’ was said, and she observed Mr Lines move the gear/throttle lever and the houseboat began to reverse, and with the evidence of Mr Nixon and Mr Wilson to which I have referred.

(p) The reversing houseboat pushed the jet ski causing it to roll and move in such a manner that both Mr Wilson and Mr Nixon were dislodged from it into the water immediately behind the reversing houseboat.

Breach of duty

Assessment of breach of duty is to be undertaken in accordance with s 5B of the Act, which reads:

(1)A person is not negligent 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,
(d)the social utility of the activity that creates the risk of harm.

Analysis of breach must commence with identification of the risk of harm in order that there can be assessment of the response of the defendant to the risk.[2] In final submissions, Mr Lines proposed the following as the relevant risk:
The risk that had to be dealt with by Mr Lines was the risk that one or more passengers, without informing Mr Lines of his or their intention to do so, might proceed through a gate onto the swim deck while the motors of the houseboat were running and then might do something that had the potential for him or them to enter the water behind the houseboat, despite the presence of a sign on each gate prohibiting that activity and despite the fact that, as a matter of common sense, it was obviously dangerous to do so.

The alternative formulation proposed by Mr Nixon in final submissions was:
The risk that the plaintiff would suffer injury as a result of coming into contact with the reversing houseboat including coming into contact with the propellers of the outboard motors of the houseboat when they were in reverse gear.

The risk of harm is not confined to the precise circumstances in which Mr Nixon suffered injury, or to the particular injury which he suffered.[3] The nature of the event leading to the type of harm which eventuated was Mr Lines reversing when Mr Wilson and Mr Nixon were in the process of retrieving the ski boat were behind the houseboat on the jet ski. The case for the plaintiff focused on the possibility that Mr Wilson or Mr Nixon might be behind the houseboat on the jet ski when it was reversed. The relevant risk was that if the houseboat was reversed while Mr Wilson and Mr Nixon were in the process of retrieving the ski boat they might be behind the houseboat, struck by it and injured.

[2]Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, 351 [59]; Southern Colour (Vic) Pty Ltd v Parr & Anor [2017] VSC 301 (25 October 2017) [53].

[3]Chapman v Hearse (1961) 106 CLR 112; Erickson v Bagley [2015] VSCA 220 (25 August 2015) [33] (‘Erickson’); Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 (28 May 2014) [67].

The approach taken to application of the requirements of s 5B(1) should not be formulaic or mechanical.[4] Assessment of breach should be undertaken prospectively from the point of view of the defendant, not with the benefit of hindsight.
[4]Erickson [2015] VSCA 220 (25 August 2015) [37].

Mr Wilson and Tiardi had, on the first occasion the ski boat became detached, stepped from the swim deck onto the jet ski and ridden it back to retrieve the ski boat. They were, for at least the time it took to get onto the jet ski, untie it and motor away, behind the houseboat. Mr Lines knew this to be the case. From his position at the upper deck controls Mr Lines could not see the rear deck of the houseboat, the swim deck or the jet ski while it was tied to the houseboat. Mr Lines said that on the first occasion the ski boat came loose he placed the outboard motors in reverse gear to stop the houseboat, and when it was stopped, he turned the engines off. In cross-examination he was asked:

You turned the – one of the reasons you turned the engine off was because you didn’t want the houseboat to collide with the jet ski?---Going back to it, whether they took off prior to me stopping and shutting down, I can’t – I can’t say. They – I don’t know whether they took off for the other – for the first time, whether they took off for the boat while the engines were still running or not, because nothing went wrong or nothing happened, but I can’t say whether the engines were shut down or we had stopped at that stage when the – – –

Mr Lines knew it was possible, on the first occasion the jet ski came loose, that Mr Wilson and Tiardi had stepped off the swim deck onto the jet ski while the outboard motors of the houseboat were operating in reverse gear. Further, Mr Lines knew, on the second occasion the ski boat came loose, Mr Wilson and Mr Nixon went to the lower deck intending to use the same process to recover the ski boat and that this would result in them going onto the swim deck and stepping onto the jet ski where it was positioned immediately behind the houseboat.

Mr Lines submitted for two reasons it was not foreseeable to a person in Mr Lines’ position that Mr Wilson and Mr Nixon would go onto the swim deck or step from the swim deck onto the jet ski while the motors of the houseboat were running, or if it was foreseeable it was not a risk against which Mr Lines, acting reasonably, was required to take precaution. First, the sign on the swim deck gate prohibited entry to the swim deck while the motors were operating. It was submitted Mr Lines was entitled to act on the basis passengers would comply with that direction. Secondly, Mr Lines submitted he was entitled to proceed on the basis that it was so obviously foolhardy for a passenger to step onto the swim deck while the outboard motors were operating, and even more so to step from the swim deck onto the jet ski, that it was not foreseeable a passenger would do so and it was not a risk against which he was required to take precaution. For the following reasons I disagree. First, Mr Lines was instructed he should take care when reversing the houseboat, that he should reverse slowly and carefully if the jet ski was attached to the rear of the houseboat and that it was preferable that he use the lower deck controls to reverse, which he understood to be because there was some view of the swim deck and behind the houseboat from that position. Secondly, Mr Lines knew it was possible that on the first occasion the ski boat was retrieved Mr Wilson and Tiardi went onto the swim deck and stepped onto the jet ski while the outboard motors of the houseboat were still operating. Thirdly, on the second occasion the ski boat was loose, Mr Lines knew that Mr Wilson and Mr Nixon went to the lower deck intending to go onto the swim deck and to step from the swim deck onto the jet ski to ride it back to retrieve the ski boat. Fourthly, it took little time for Mr Wilson and Mr Nixon to move from the upper deck to the lower deck, onto the swim deck and to step onto the jet ski. Fifthly, there was no discussion or plan for Mr Wilson and Mr Nixon to wait until Mr Lines had turned off the motors of the houseboat before stepping onto the swim deck. Sixthly, it was not Mr Lines’ case that Mr Nixon knew he intended to reverse the houseboat towards the ski boat. Seventhly, it was foreseeable that a person behind the houseboat might be struck and injured if the houseboat were to be reversed. In cross-examination Mr Lines acknowledged he knew that reversing the houseboat posed a danger to a person behind the houseboat, including a person on the jet ski. Eighthly, the sign on the swim deck gate was small, there was no evidence Mr Nixon was aware of it, and no basis for Mr Lines to assume Mr Nixon had seen it and would, in response to seeing it, not step onto the swim deck while the motors were on. Ninthly, in the circumstances known to Mr Lines, the actions of Mr Wilson and Mr Nixon going onto the swim deck and stepping onto the jet ski while the outboard motors were on, was not so foolhardy that it was foreseeable to a person in Mr Lines’ position that they would do so. I conclude that Mr Lines knew, and that a reasonable person in Mr Lines’ position ought to have known, there was a foreseeable risk when he reversed the houseboat in response to hearing words to the effect, ‘Reverse it up’, Mr Wilson and/or Mr Nixon were behind the houseboat and might be struck by the houseboat as it was reversed. Given that Mr Wilson and Mr Nixon had gone to the lower deck with the purpose of stepping from the swim deck onto the jet ski, as was known by Mr Lines, the probability of being struck if the houseboat were reversed was significant. It is common sense that the magnitude of harm which could result was great.

There were a number of precautions Mr Lines could have taken to respond to the foreseeable risk of harm. Mr Lines could have taken steps to ensure no person was behind the houseboat before he reversed it. If he was reversing using the upper deck controls, Mr Lines could have asked someone in a position to see the rear lower deck, such as Candice Nixon, to tell him if there was anyone behind the houseboat or on the swim deck before he reversed it. Alternatively, Mr Lines could have moved to the lower deck himself. He acknowledged that he had been instructed by the All Seasons employee that it was preferable to use the lower deck controls when reversing. In cross examination Mr Lines agreed there was no reason why he could not have disengaged the upper deck controls and gone to the lower deck before putting the houseboat into reverse. In re-examination Mr Lines said he had time to shut off the controls on the upper deck, place the motors in neutral, and go downstairs to the lower deck controls before reversing the houseboat. If he had done so, Mr Lines would have walked across the rear lower deck and had the opportunity to see Mr Wilson and Mr Nixon on the swim deck. Further, while at the lower deck controls, Mr Lines would have some view of the rear deck and the swim deck.

Secondly, Mr Lines could have taken the precaution of not reversing the houseboat while there was the possibility of persons being on the swim deck or behind the houseboat. In other words, he could have ignored the suggestion to reverse the houseboat. There was no need for Mr Lines to reverse the houseboat. Thirdly, Mr Lines could have warned Mr Nixon of his intention before reversing the houseboat.

The burden of taking the precautions identified was hardly onerous. Taking the precautions together or separately is likely to have avoided the risk of harm. I conclude that Mr Nixon has satisfied the requirements of s 5B of the Act.

Obvious risk

Mr Lines was not under a duty to warn Mr Nixon of a risk which was obvious to him.[5] Whether a risk is obvious requires a forward-looking objective assessment from the viewpoint of Mr Nixon, given the circumstances he faced, of the possibility of harm occurring.[6] Harm is defined to include ‘personal injury or death’.[7] To be obvious, a risk must be clearly apparent or easily recognised or understood. A risk may be obvious though it has low probability of occurring.
[5]Civil Liability Act2002 (NSW) s 5H.
[6]Ibid s 5F.
[7]Ibid s 5.

The circumstances faced by Mr Nixon as he entered and crossed the swim deck and stepped onto the jet ski were:

(a) The outboard motors of the houseboat were on.

(b) There was little if any movement of the houseboat in the water.

(c) There was little if any movement of the jet ski in the water, and it was sitting at an angle to the swim deck.

(d) Mr Wilson and Mr Nixon were both able to step without difficulty from the swim deck onto the jet ski.

There was a risk of injury to Mr Nixon from being in the water behind the houseboat while the outboard motors were operating in gear. I have concluded that Mr Nixon did not jump into the water behind the houseboat. A misstep while crossing the swim deck or attempting to step onto the jet ski might result in slipping or falling into the water behind the houseboat. There was a risk being in the water behind the houseboat while the motors were on that the motors might already be in gear, or might be placed in gear, with the result that the spinning propellers could cause personal injury. It was submitted for Mr Lines that there was a risk going onto the swim deck and stepping from it onto the jet ski while the outboard motors of the houseboat were on and that Mr Lines was not under a duty to Mr Nixon to warn him of that obvious risk.

Mr Lines faces two difficulties with this submission. First, Mr Nixon and Mr Wilson successfully negotiated the risk associated in crossing the swim deck and stepping onto the jet ski while the outboard motors of the houseboat were on. That is not the risk which eventuated. Secondly, the risk which did eventuate was Mr Lines reversing the houseboat while Mr Wilson and Mr Nixon were behind it seated on the jet ski in the process of recovering the ski boat. The jet ski was pushed over on its side, causing Mr Nixon and Mr Wilson to fall from the jet ski into the water with the result that Mr Nixon was drawn into the propellers of the reversing outboard motors and suffered injuries. There was no reason for Mr Nixon to expect the houseboat to be reversed towards the ski boat. That was not what occurred during the first retrieval of the ski boat. Given it was still going to be necessary to use the jet ski to retrieve the ski boat even if the houseboat was reversed towards it, the new plan made little sense. The risk that Mr Lines would reverse the houseboat into the jet ski would not have been obvious to a person in Mr Nixon’s position. I conclude that Mr Lines was under a duty to warn Mr Nixon before reversing the houseboat towards the ski boat.

If I am wrong in this conclusion, I would still find that Mr Lines breached his duty of care to Mr Nixon by reversing the houseboat before ensuring no person was behind it.

Causation

I have found Mr Lines was negligent in reversing the houseboat in the circumstances. To succeed, Mr Nixon must prove that the negligence of Mr Lines was a necessary condition of the occurrence of the harm he suffered or, put another way, that Mr Nixon would not have suffered the particular harm but for Mr Lines’ negligence.[8] Mr Nixon bears the onus of proving, on the balance of probabilities, each element necessary to establish factual causation.
[8]Ibid s 5E; Strong v Woolworths Limited [2012] HCA 5 (7 March 2012) [17]–[18].

Mr Lines knew Mr Wilson and Mr Nixon had gone to the lower deck of the houseboat intending to go onto the swim deck and to board the jet ski so as to retrieve the ski boat. Mr Lines knew, or ought to have known, that Mr Wilson and Mr Nixon might go onto the swim deck and step onto the jet ski while the outboard motors of the houseboat were on. Mr Lines’ negligence led to him reversing the houseboat when Mr Wilson and Mr Nixon were in a position of danger behind it. Similarly, Mr Lines’ failure to warn Mr Nixon that he was going to reverse towards the ski boat led to Mr Nixon being behind the houseboat when it was reversed. A necessary condition of the accident and Mr Nixon’s injuries was Mr Lines reversing the houseboat in negligent circumstances, that is, without warning Mr Nixon he was going to do so, and without checking to ensure no person was behind the houseboat before he did so. I conclude Mr Nixon has satisfied the requirements of s 5E of the Act by establishing that the accident would not have occurred and he would not have suffered injuries but for Mr Lines’ negligence.

Mr Lines submitted that the cause of the accident was the foolhardy actions of Mr Wilson and Mr Nixon failing to comply with the sign on the swim deck gate and crossing the swim deck and stepping onto the jet ski while the outboard motors of the houseboat were running. In support, Mr Lines relied on the decision of the New South Wales Court of Appeal in Perisher Blue Pty Ltd v Nair-Smith.[9] The facts of Perisher Blue explain clearly why a different conclusion as to causation was reached by the Court of Appeal in that case. Dr Nair-Smith in Perisher Blue was struck by part of a ski lift chair she was waiting to board, and suffered injury. Her primary case at trial, that the chair was moved out of position by the lift attendant just as it arrived at her boarding position, was rejected. Dr Nair-Smith’s secondary case was that in the moments before the chair arrived, she moved from her designated boarding position in panic caused by the failure of the lift operator to notice until the last moment that the safety bar of the chair lift was down rather than up. Dr Nair-Smith did not give evidence that her movement was caused by panic in response to the chair lift operator’s negligent failure, but relied on inference from surrounding facts. The Court of Appeal determined there were other reasons which might explain the movement of Dr Nair-Smith out of alignment, some of which were as likely as the explanation on which she relied, and in those circumstances Dr Nair-Smith had not discharged the onus of proving each element of causation. By contrast, Mr Nixon’s case on causation does not depend on inference. Mr Lines was negligent to reverse the houseboat when he did. Reversing the houseboat when Mr Nixon and Mr Wilson were behind it was a cause of the accident and Mr Nixon’s injuries.
[9][2015] NSWCA 90 (9 April 2015).

Contributory negligence

On the basis on which the case was run by Mr Lines and my findings of fact thus far, only the following particular of contributory negligence requires consideration:

Entering a prohibited area contrary to a clearly displayed sign on the gate, through which the plaintiff passed, stating ‘no access to swim deck while motor is operating’.

The first difficulty faced by Mr Lines is there was no evidence that at any stage prior to the accident Mr Nixon saw the sign or was aware of it. It was submitted for Mr Lines that I should infer that Mr Nixon saw and was aware of the sign because he had passed through a gate onto the swim deck and because he must have passed by the swim deck gates on a number of occasions in the period he was on the houseboat. Mr Nixon probably went through the swim deck gates when he brought the jet ski to the back of the houseboat at the start of the journey. On that occasion, the sign was on the opposite side of the gate as Mr Nixon passed through, and it is unlikely he saw it. Just before the accident Mr Nixon followed close behind Mr Wilson onto the swim deck. It is likely the swim deck gate was already opened by Mr Wilson as Mr Nixon approached, so that he would not see the facing side of it where the sign appears. There is no evidence that Mr Nixon passed by the sign frequently. The sign is small, and there was nothing to draw Mr Nixon’s attention to it. I conclude that Mr Nixon was not aware of the sign on the swim deck gate prior to the accident.

At trial Mr Nixon was cross-examined on the basis that it was common sense not to go through the gates onto the swim deck while the outboard motors were operating, and that the only time it would be safe to pass through the gates onto the swim deck was when the motors were switched off. Mr Nixon conceded, given the manner in which the case had been run, that Mr Lines was entitled to rely on an allegation that Mr Nixon stepped onto the swim deck while the motor was operating, contrary to common sense, as a particular of contributory negligence. However, Mr Nixon submitted that it had never been part of the defence that he was contributorily negligent by stepping from the swim deck onto the jet ski. In response, Mr Lines submitted the allegation of contributory negligence focused on Mr Nixon stepping onto the swim deck while the motors were running, and that if Mr Nixon stepped from the swim deck onto the jet ski:

… then that only accentuated the risk he’d already taken because it became even more likely that he could end up in the water.

Mr Lines submitted that going onto the swim deck when the motors were operating was directly causative of the accident because:
If he had had observed the measure of taking reasonable care for his own safety by not going through the gate onto the swim deck while the motor was running, there would have been no question of injury of the kind that occurred.

Mr Nixon submitted, first, he was not negligent in going onto the swim deck while the outboard motors were on. He submitted that the evidence should lead to the conclusion that he did so operating on the perception, which was probably accurate, that the motors were idling at that time. In any event, he submitted that it was not dangerous to be on the swim deck when the motors were operating, and that the sign on the swim deck gate and common sense were directed to the danger associated with passengers going into the water and swimming behind the houseboat while the motors were on. Secondly, Mr Nixon submitted that even if it was negligent of him to step onto the swim deck, that negligence was not causally relevant to the accident and the injuries he suffered. Mr Nixon submitted the danger only arose when he was seated on the jet ski and Mr Lines, without warning, reversed the houseboat.

The principles to which I have referred, which apply to analysis of breach and causation in the case against Mr Lines, also apply in determining whether there has been causative contributory negligence by Mr Nixon.[10]
[10]The Civil Liability Act2002 (NSW) s 5R.

When Mr Nixon crossed the swim deck, the houseboat outboard motors were on. I accept that it was Mr Nixon’s perception the motors were idling. The swim deck was unguarded. The section of swim deck behind the outboard motors, across which Mr Nixon walked, was narrow. In cross-examination Mr Nixon was asked on a number of occasions about going onto the swim deck while the outboard motors were running. One exchange which occurred is as follows:

See, it’s common sense not to go out onto the swim deck near the engines if the engines are running?‑‑‑Yes.
Regardless of what gear they are in, isn’t it?‑‑‑I agree.
Because while they are running, any boat person like yourself will know that there is a risk that for one reason or the other, someone might put the engines into gear?‑‑‑I disagree, you wouldn’t think somebody was going to reverse the boat when there was somebody behind it.
But the reason why it’s common sense not to go out onto the swim deck when the motors are running regardless of gear is because that creates a risk of accident should the boat be put into any gear, doesn’t it?‑‑‑We were only doing the same thing that happened the first time, so I didn’t realise there was going to be - I didn’t realise someone was going to put it in reverse.
But that’s the risk whether it be put into reverse or put into forward gear, that’s the risk that you avoid by not going out onto the swim decks when the motors are running, isn’t it?‑‑‑Yes.
Because the last thing anybody wants to do is fall into the water when the motors are running and in gear?‑‑‑That’s right.

Later on in cross examination:

So, in accordance with the answers you gave me previously, it was simply not common sense to go through either gate onto the swim deck, was it?---I believe I took an educated guess. It’s like walking behind a car with the motor idling. It’s not ‘til it goes into reverse that you’re in danger, or gear, sorry.

And in re-examination Mr Nixon said:

I don’t see a problem with it being in neutral.

Why not? Just explain that to His Honour?---Because the pillars aren’t spinning. If the houseboat was in gear, reverse or forward, you wouldn’t go onto the deck, no.

This evidence demonstrates that two quite different risks existed. The first was the risk that crossing the swim deck and stepping onto the jet ski while the motors were on, Mr Nixon might slip or misstep and fall into the water close to the outboard motors and, if the motors were put into gear, be struck by the propellers. Mr Nixon knew or ought to have known of that risk. There was little exploration in evidence of the probability of the risk eventuating or of the precautions reasonableness might require, other than not entering the swim deck. There is no evidence which would lead me to conclude that Mr Nixon exhibited a lack of care in the manner in which he crossed the swim deck and stepped onto the jet ski. It may be Mr Nixon was taking sufficient care when crossing the swim deck to respond reasonably to the risk which existed. In any event, as previously observed, Mr Nixon successfully negotiated this risk. I agree with the submissions for Mr Nixon. It is not established it was negligent of Mr Nixon to step on to the swim deck when he did. If that conclusion is wrong, any negligence by Mr Nixon entering and crossing the swim deck was not a cause of the accident.

The second risk, from the point of view of Mr Nixon, was that while he was behind the houseboat seated on the jet ski, the houseboat might be reversed and strike him and in effect, run over him. This is the risk which eventuated. The risk was not foreseeable to Mr Nixon. It is true Mr Nixon placed himself in a position of risk behind the houseboat. However, he did so unknowingly. There was no reason for Mr Nixon to expect Mr Lines would without warning reverse, and no reason why this would be done. It was not pleaded against Mr Nixon that he was contributorily negligent by boarding the jet ski behind the houseboat and that was not a case run at trial. Had that case been pursued by Mr Lines I would have found against it.

I have concluded Mr Lines has not proven Mr Nixon failed to take care for his own safety by going onto the swim deck, and if that is wrong, negligence by Mr Nixon stepping onto the swim deck was not a cause of the accident. In case both those conclusions are wrong I will assess contribution.

In Podrebersek v Australian Iron and Steel Pty Ltd,[11] the High Court considered the question of apportionment for contributory negligence:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16 ) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

Assuming Mr Nixon departed from the standard of reasonableness by stepping onto the swim deck when the motors of the houseboat were on, the degree of departure was minor. When he stepped onto the swim deck, Mr Nixon understood the process for recovery of the ski boat as was used on the first occasion it came loose was to be repeated. He had no reason to expect that Mr Lines would attempt to reverse the houseboat towards the ski boat, and received no warning that was to occur. His perception was the outboard motors of the houseboat were idling. If the act of stepping onto the swim deck was negligent and causative it is of minor relative importance.

[11][1985] HCA 34 (29 May 1985).

By contrast, the degree of departure by Mr Lines from the standard of reasonableness was significant. Knowing that Mr Wilson and Mr Nixon went to the lower deck intending to go onto the swim deck and to step onto the jet ski in order to retrieve the ski boat, as had been done on the first occasion it came loose, Mr Lines reversed the houseboat without warning to Mr Nixon and without checking to ensure no person was behind it. Further, the act of reversing the houseboat was of major importance in causing the accident and Mr Nixon’s injuries. Assuming, contrary to my earlier conclusions, stepping onto the swim deck was negligent and was a cause of the accident, then responsibility for the accident and Mr Nixon’s injuries should be apportioned 95 per cent to Mr Lines and 5 per cent to Mr Nixon.

Conclusion

I conclude there was breach by Mr Lines of the duty he owed Mr Nixon which was a cause of the accident and Mr Nixon’s injuries. Judgment will be entered for damages which were agreed. I will hear from the parties as to the form of the order and as to costs.

[2017] VSC 723

29 November 2017