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Jet Ski Accidents – mixed results for personal injury claims

 

This survey of five decisions on jet ski accidents reveals a wide variety injury hazards and mixed results for personal injury compensation claims.

Jet skis are recreational watercraft powered by an inboard engine that drives a pump-jet to create thrust for propulsion and steering. They have no propellers. The throttle is used for speed and manoeuvrability. Power goes off when the throttle is released. Jet skis can reach speeds of up to 100 kph. Many are designed for two people. They weigh 500 to 700 kgs.

Blunden t/a Southern Water Sports v Solomon his tutor Carol Anne Friend [2005] NSWCA 52 NSW Court of Appeal

Aaron Solomon’s mother hired two jet skis, one for herself and the other for him. Although the regulations required riders of jet skis to hold a licence, Southern Water Sports Jet Ski Hire could rely on an exemption to hire out jet skis to persons who were unlicensed. This exemption was subject to a condition that sufficient instruction was given to the rider to allow the jet ski to be safely operated. Aaron was aged 15 at the time. Southern Water Sports abandoned its reliance on a disclaimer signed by Aaron’s mother and father at the hearing.

The accident occurred when Aaron was riding out towards the jet ski course at Corrigans Beach, Batehaven. As he was travelling through the swell, his jet ski changed direction and collided with the jet ski that his mother was riding. The trial judge found that Aaron was out of control and changed course as he went through the swell. The trial judge found that Southern Water Sports had not properly instructed him as to the dangers arising if the rider lets go of the throttle and the power stops. Both Aaron and his mother were novices.

The NSW Court of Appeal upheld the trial judge’s finding of negligence because Southern Water Sports failed to give proper safety instructions - that it was necessary to always use the throttle when changing course. In addition, Southern Water Sports should have instructed as per the manual that particular action had to be taken when crossing a wave otherwise the jet ski would change direction as a result of the effect of the wave.

Rogers v Interpacific Resorts (Australia) Pty Ltd [2007] QSC 239 Supreme Court of Queensland

Mr Rodgers hired a jet ski at Couran Cove Resort at South Stradbroke Island. He signed a sheet of paper headed ‘Jet Ski Rules’ which contained safety instructions. Before boarding the jet ski, he and his son were shown the course. They were briefly shown how to accelerate and decelerate using the throttle and the use of the steering handle, but received no other instruction, despite the fact they were novices. His son was the driver.

As they turned the first corner they were travelling too fast and both ‘came flying off’ and hit the water. They had lifejackets on. Mr Rogers hit the back of his son’s head, sustained injury to his left eye and surrounding face with cuts and bruising and in due course, swelling.

The Court found that Interpacific Resorts owed a duty of care to Mr Rogers to protect him from risk of injury associated with the operation of the jet ski as far as was reasonably able to be done. It breached its duty by:

  • “not explaining adequately the use of the throttle and the necessity for increased power in order to turn safely when travelling at a moderate speed;
  • permitting the son to drive first or at all without careful practical instruction;
  • permitting the son to drive with a pillion passenger who was also a novice in the operation of the jet ski;
  • failing to demonstrate or supervise the operation of the jet ski including how to turn it.”

There was no voluntary assumption of risk due to the lack of instruction, and no contributory negligence.

The Court awarded Mr Rogers $593,708.46 including $130,000.00 for past economic loss and $350,000 for future economic loss.

Etemovic v Gold Coast City Council [2009] QSC 185 Supreme Court of Queensland

Ms Etemovic was swimming at Currumbin Beach in an area known as Currumbin Alley which had two signs: “Danger; no swimming” with red flags on top. She was waist deep in water when she saw the jet ski coming at her on a wave. She tried to run in the water, but she was struck in the lower back by the jet ski and was knocked underneath the water. She suffered back pain and headaches, but did not require medical attention.

A lifeguard had been operating the jet ski to rescue surfers who were being swept out to sea by the outgoing tide. He had just completed a rescue and the jet ski was in the water beyond the swimmers. The power was off. He got off. He noticed a group of swimmers between the jet ski and the beach and turned the jet ski around so that it was facing the waves. Shortly afterwards, a wave came which hit the jet ski and propelled it towards Ms Etemovic.

The Court found that there was no breach of the duty of care - to keep a proper lookout or to control the jet ski. The incident occurred as the result of the action of a wave hitting the stationary jet ski, and where the lifesaver was unable to take any effective evasive action that could have prevented the incident.

The Court ruled that the Gold Coast Council were not liable for the injuries sustained.

Whittington v Smeaton [2016] ACTSC 76 Supreme Court of the ACT

Whittington was an observer on a jet ski driven by Scott Smeaton (who also owned the jet ski) which had been towing Todd Smeaton, who was waterskiing behind it on the Ross River, near Townsville. The Smeatons were experienced jet skiers.

After Todd Smeaton had fallen off his waterski, the jet ski turned around to go and pick him up. Whittington freed up the towrope. The jet ski struck the wake of another boat and Whittington fell into the water. Most unfortunately, after having fallen into the water, his leg became somehow entangled in the towrope and his foot was traumatically amputated.

The Court found that: “the driver of a watercraft clearly owes a duty to those on the craft to exercise reasonable care in relation to the use of the craft so as to minimise risk of personal injury to those persons.” “In the present case the risk of harm was that a rearward facing passenger might become unbalanced or dislodged from the jet ski and suffer appreciable (rather than inconsequential) physical injury”. “The risk of harm was foreseeable for the purposes of s 9(1)(a) of the Civil Liability Act 2003 (Qld), because it was a risk of which the Smeatons knew or should have known”.

The risk was significant and the Smeatons failed to take reasonable precautions.

Significantly, the Court found that riding a jet ski did not involve a significant risk of physical harm, and therefore was not a dangerous recreational activity. As a result, the way the accident occurred was not an obvious risk so as to preclude liability.

The Court found the Smeatons were liable and ordered them to pay $800,000 in compensation. But the Court found that their insurer, Alliance was liable under the insurance policy and ordered it to pay the Smeatons the amount payable.

West v Rosenlis [2021] VSC 41 Supreme Court of Victoria

Mr West and Mr Rosenlis spent a day jet skiing on Lake Nagambie. They were experienced jet skiers. Mr West was on the lead ski, proceeding slowly in accordance with the 5 knot speed limit as they entered the Goulburn River. A person in a nearby boat called out to Mr West, who released the throttle allowing his jet ski to slowly drift to the left. Mr Rosenlis, who was some distance behind, was travelling much faster than 5 knots. He did not take action to steer clear and collided with the middle of Mr West’s jet ski, causing him injury.

Prior to the hearing, Mr Rosenlis pleaded guilty to and was sentenced on one charge of driving his jet ski in a manner dangerous causing injury, arising from the accident.

Mr Rosenlis did not attend court for the trial and no solicitor appeared for him.

The Court found that:
 

  1. "Mr Rosenlis owed Mr West a duty to take reasonable care in the driving, management and control of his jet ski to avoid causing him injury;
  2. there was a foreseeable risk of harm to Mr West if Mr Rosenlis failed to do so, which was not insignificant;
  3. having regard to all the circumstances, including the matters in s 48(2) of the Wrongs Act 1958 (Vic), a reasonable person in the position of Mr Rosenlis would have taken precautions against the risk of harm to Mr West, which include driving his jet ski at a slower speed, keeping a proper lookout, and steering and controlling his jet ski so as to avoid colliding with Mr West’s jet ski; and
  4. Mr Rosenlis’ negligent driving of his jet ski was a cause of the accident and injury to Mr West.”

The Court awarded $350,000, consisting of $300,000 damages for non-economic loss and $50,000 for medical and like expenses.

Conclusions

  1. Jet skiing is a recreational activity and duties of care apply under Civil Liability Laws. But it is not a dangerous recreational activity and so the defence of obvious risk does not apply
  2. Disclaimers / Waivers are not effective unless there is warning of hazards and proper instruction, particularly for novices.
  3. Personal flotation devices (i.e. a lifejacket) must be worn.
  4. Insurance will cover risks, and is recommended for owners and hirers. Travel insurance does not always cover jet skis, and when it does, requires the driver to be licensed.
  5. Criminal liability can result if a jet ski is driven dangerously.
  6. Jet skis need to be registered as recreational boats. Safety equipment must be carried especially on open waters, such as hand-held flares and beacons, and if operated after sunset, a signalling device (such as a waterproof torch) and navigation lights.

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