Failure to alter boating vessel for commercial use

The the case of Ellery v Sunsail (Australia) pty Ltd [2014] QDC 285, Mrs Ellery, the plaintiff, claims damages for personal injuries sustained while on board a catamaran at the Hamilton Island Marina on 3 May 2012.

Mrs Ellery was holidaying in the Whitsunday Islands when her daughter, Ms Betts, arranged for a one day cruise around Hamilton Island on one of Sunsail’s catamarans.

Shortly after the party boarded the catamaran, the plaintiff was introduced to the skipper, Mr Ash, and as he extended his hand to shake hers, the plaintiff stepped back a little and fell backwards down the stairway.

As a result of the fall, Mrs Ellery suffered serious neck and back injuries and was in hospital at Mackay until 26 May 2012. From Mackay Base Hospital, Mrs Ellery was transferred to Caloundra Hospital and was discharged from there on 3 August 2012.

The fall had caused fractures of the upper two cervical vertebrae as well as C5 and C6 bodies. In July 2013, the plaintiff suffered the first of a series of strokes.

The defendant was found to be negligent by not altering the vessel in order to avoid relevant risk as they were employing the vessel for commercial use. What was required was a physical safety barrier which would have reduced the risk of falling down the access stairway, at least until all passengers were on board and given a thorough safety briefing. Failure to do so amounted to a breach of duty and was a significant cause of the Mrs Ellery’s injury.

The decision of His Honour Judge Devereaux was appealed to the District Court, Mackay on 19 December 2014 and in the result, there will be judgment for the plaintiff in the sum of $117,975.69.