Kishore Rohra v Ox. Two Pty Ltd trading as Ocean Extreme

Kishore Rohra v Ox. Two Pty Ltd trading as Ocean Extreme - [2016] NSWDC 78 - NSWDC 2016 case summary — Zoe

The defences to the plaintiffs' claims

The defendants in each case had similar interests and were represented by the same legal practitioners and counsel. The Amended Defence to the Amended Statement of Claim in each matter, denies negligence, breach of contract, and breach of any imputed guarantee pursuant to s 60 of the Australian Consumer Law.
The defendants also plead reliance on various sections of the Civil Liability Act 2002 (NSW) ("CLA"), including: 1. "That the risk of harm posed by the harbour tour was an obvious risk; and 1. Pursuant to s 5G of the CLA, the plaintiff is presumed to have been aware of the risk of harm; and 2. The plaintiffs voluntarily assumed the risk of harm; and 3. Pursuant to s 5H of the CLA, the defendants did not owe a duty of care to the plaintiffs to warn of the risk."
In the alternative, the defendants plead that any risk of harm posed by the harbour tour was an inherent risk for the purposes of s 5I of the CLA, whereby they are not liable in negligence for harm suffered by the plaintiffs as a result of the materialisation of that inherent risk.
Further, in the alternative, the defendants pleaded that at the time of the injuries the plaintiffs were involved in a recreational activity for the purposes of Pt 1A Div 5 of the CLA, and: 1. "The plaintiffs were provided by the defendants with a risk warning regarding the risks involved in the harbour tour and; 2. Pursuant to s 5M of the CLA, the defendants did not owe a duty of care to the plaintiffs in respect of the activities involved in the harbour tour."
Further, and in the alternative, the defendants have pleaded reliance on s 5N of the CLA, and that the contract was subject to an express term that all passengers took part in the harbour tour at their own risk. In those circumstances, other than the gross negligence of the skipper as proved by a court of law, neither of the defendants or either of them were not liable for any injuries suffered by any of the plaintiffs. Further, the defendants plead that the activities involved in the harbour tour constituted dangerous recreational activities for the purposes of s 5L of the CLA, and the risk which resulted in the harm allegedly suffered by each plaintiff was an obvious risk of that dangerous recreational activity, and pursuant to s 5L, the defendants are not liable for the harm suffered by each of the plaintiffs.
Further, the defendants plead contributory negligence on the part of each plaintiff. The claim is particularised as follows: "Particulars of Negligence or Contributory Negligence (a) Failing to take any or any reasonable care for her (their) own safety. (b) Failing to keep a proper lookout of swell conditions in front of the vessel. (c) Failing to follow instructions as to how to ride safely in the vessel. (d) Failing to heed warnings as to the risk associated with the harbour tour."
The defendants have also pleaded a failure to mitigate loss by each plaintiff by failing to take reasonable steps to obtain appropriate medical treatment.
In his final submissions, learned senior counsel for the defendants conceded they owed the plaintiffs a duty to take reasonable care for their safety.

[4]

Evidence of Kishore Rohra

Mr Kishore Rohra purchased four tickets for a jet boat ride through a website known as "Scoopon". He intended to take two relatives and his wife and a booking was made for them to do so on 1 May 2010. That booking was cancelled and a further booking was made on 22 May 2010. On that occasion Mr Rohra invited two friends Ms Shivani Talwar and her husband Mr Avikesh Avikesh to join him and his wife on the jet boat ride.
On 22 May 2010 they arrived at the Darling Harbour dock. On the upper level he spoke to a man employed by the defendant and presented his voucher. He was told to pick out a spray jacket and the four of them did so. After 20 minutes or so the group proceeded to the lower dock or pontoon where they stood a metre or two away from the boat that had arrived. An employee of the defendant said to the group of people assembled on the dock:-
"There's a lifejacket under your seats, use it if you need to use it. Second thing is, if you need a less bumpy ride sit on the back and if you need more bumpy and more adventurous ride sit in the front."
Next he said, "Make sure you always keep your leg up on the seat and don't put your leg down," and he said, "go ahead, and there's a form there's a, a form which, which, which you need to sign before you get onto the boat."
Mr Rohra then identified his signature as that being number 21 on Exhibit B. He was the last person to sign the document which was on a clipboard which was passed from person to person.
Mr Rohra said there were no further instructions given by any of the crew. There were two crew members on board, a driver and a deck hand.
Mr Rohra gave evidence that the boat had left Darling Harbour and proceeded at a slow speed past the Opera House and the zoo, where it accelerated to a speed of between 50 and 70 kilometres per hour.
Mr Rohra described the waves in the harbour as "smooth waves". In the inner harbour he described those waves as having a height of "four or five metres".
He then described waves near the Opera House as being small-medium, and as they travelled towards the heads the waves got bigger. Mr Rohra described the waves when the boat first commenced to accelerate as being from zero to two metres and then increasing from two metres to five metres. He was not able to observe the waves because he was at the back of the boat but was giving an indication of the size of the waves from feel. He was seated in the back row on the left hand side of the boat. Mr Rohra's evidence in relation to the incident in which he was injured was as follows:- "Q: What happened in relation to this wave? A: At one point in time we came to a really big wave and we actually had got into the air and then fell onto the water. Q: If I can ask you about the really big wave. In terms of the boat was it going at, was it slowing down as it went up the wave or was it going the same speed or was it going faster as it went up the wave, what was it? A: It went faster. Q: It was accelerating? A: It was accelerating. Q When you then, as it went over the wave, what do you say happened to the boat? A: It was airborne for a few seconds and everyone in that boat including myself, I felt like I'm in, in the air and then suddenly you had jerk and, yeah, and I, and I fell on my back on the iron rod. Q: Is there much of an impact? A: It was a very big impact. Q: What was the feeling that makes you say that it was a big wave, what feeling did you get? A: Because I was in the air for a few seconds, for at least two, two and a half, three seconds."
Mr Rohra then described the boat inclining up the wave in an upward direction and described an incline of "30 to 45 degrees". He estimated the speed at which the boat went over the wave as between 50 to 70 kilometres per hour.
He did not go to visit the Harbour Jet website at all prior to booking the ride.
In cross examination, Mr Rohra agreed that he was not a "boating person". He agreed that the estimate he had given as to the height of waves were an estimate only and he at no time prior to being in the witness box had been asked to bring to his mind what the height of the waves might have been. Similarly he had no experience in estimating the speed of boats and agreed that his evidence in relation to the speed of the boat was a "bit of a guess", compared to a car. He did not agree that it was completely inaccurate but said it was his best estimate. He agreed that as he was sitting in the back of the boat he could not see the wave.
The plaintiff identified the two Scoopon vouchers which became Exhibit C. Prior to purchasing the tickets he had looked at the Scoopon website and the description of the trip. He agreed that the description included "heart-stopping speeds" and that meant going really fast and doing turns at full speed, and stopping quickly. He agreed that in doing those sort of manoeuvres he would be thrown from one side to the other.
Mr Rohra said he expected to be going on a very fast and adventurous ride, and an adventure ride. He expected being moved around and bumped on the boat but did not expect to be twisted because in his previous experience there was a "nice soft cushioned harness and a nice cushioned seat".
Mr Rohra agreed that before the boat left he could see that the seats did not have a harness. He did not agree that he knew there was a risk that he could twist his spine "or something like that". He did think there could be a risk of some kind of injury but not an extreme injury.
Mr Rohra disagreed with the proposition that he expected the boat to become airborne. He denied they were given a safety briefing at all other than the conversation in which they were told there was a less bumpy ride at the back of the boat. He further denied that they were told that if anyone was pregnant or had any back or similar type of problems they should not go on the ride. Mr Rohra also denied that at the end of the safety briefing they were told that they should "now go and read the conditions set out on the sign". He had never seen the sign with terms and conditions on it.
Mr Rohra acknowledged that Exhibit B contained the heading "Assumption of risk signature form", however, he gave evidence that he did not read the document but wrote out his name and signed it. He referred to it as an "attendance sheet". Mr Rohra said that it was similar to an excel spread sheet.
It was put to Mr Rohra that the Extreme II ride was not actually as adventurous as the boat ride he originally booked on. He was not aware of that. He was asked:-
"Q: Because it doesn't do fishtails, it doesn't do 270 spins, I suggest to you sir. Are you aware of that or not?
A: I wasn't.
Q: In case it be suggested through your evidence that somehow you're being upgraded for a more dangerous or more adventurous ride, I want to suggest to you that in fact it's the opposite. It's the less adventurous ride you were put on sir. Are you aware of that or not?
A: No because what was said was bigger and better. Never ever explain what the definition of what you are getting into."
Mr Rohra said he knew to hold onto the metal bar in front of him because the person sitting in front of him was doing that.
His evidence was, "the first person would have been given the instruction and then you start copying what's in front of you". He agreed he was told to stay seated at all times and he did not stand up at all during the ride.
Mr Rohra agreed that from time to time the crew member would look behind him to see if everything was okay. Up until the incident nobody expressed any concerns. The boat had become airborne on more than one occasion. On this occasion it took longer for the boat to come down, two to three seconds. He denied exaggerating about that. He was asked:-
"Q: it mightn't even have been airborne at all sir, mightn't it?
A: It was definitely two to three seconds."
Mr Rohra gave evidence that he was screaming out after the incident because a lady was bleeding from her mouth. Within a few seconds he realised that his back was broken and painful.
Mr Rohra gave evidence that before he got on the boat he was aware that the boat would be going over waves which he described as "normal waves". He was aware that as the boat went over waves the front of the boat would likely be in the air, and also that depending on the size of the wave, more of the boat would be in the air. He was certain that the boat became airborne.
He denied that any of the passengers were standing up at the time of the incident and did not hear any of the Barnes party tell each other it would be a good idea to stand up as the boat was going over waves. Finally, he said the speed was between 50 and 70 kilometres per hour and an average of 60 kilometres per hour.
In re-examination Mr Rohra identified by reference to photograph in Exhibit A, page 41 that the exit spot from the boat was similar to the entry spot shown in photograph 41.

[5]

Evidence of Mrs Harpreet Kaur

Mrs Kaur was the wife of Mr Rohra. Using the voucher her husband purchased from Scoopon, Mrs Kaur made a booking for the jet boat ride on 1 May 2010. That booking was cancelled and another booking made on 22 May 2010. She gave evidence that when they arrived at the Darling Harbour wharf, they were given spray jackets and were then asked to go down a level to where the boat was moored.
On the dock there was a conversation as follows:-
"A: So what I remember was they say if you are pregnant and have back injuries then this boat is not for you, you should not board the boat and about the life jackets as well, that they're underneath the seats.
Q: Anything else?
A: That's what I remember.
Q: Did they tell you how to hold on, or how to sit or anything like that?
A: Yes, yes.
Q: What did they say?
A: They said you have to hold onto the front of your seat and you, your legs should be touching the ground. I remember, no, yeah.
Q: Is there any other discussion than that?
A: No.
Q: Then when you got on the boat was anything said?
A: When we were getting into the boat, they said if you want a rough, sorry a steady ride, then it's better you sit at the back of the boat, but if you want a more adventurous ride then at the front of the boat, so we decided to sit at the back."
When asked whether anything was said before the boat sped up after it passed the Opera House, Mrs Kaur said:
"A: Yeah they, I heard a man, probably the helper in the boat, saying 'Oh get ready for the fun.'"
Before the accident, Mrs Kaur gave evidence that the waves the boat was going over were "roughly a metre, metre and a half". When asked what sort of speed the boat was doing she answered:-
"A: I don't know exactly, but roughly 60-70."
As the boat approached the wave, Mrs Kaur gave evidence that it accelerated towards the wave. When asked what happened, she said:
"A: So we went up the wave and then down. That was the first wave, then there was another wave after that and that's I think when everyone got hurt, the second."
When asked how big that wave was she said "roughly two metres".
Mrs Kaur gave evidence that there were no problems going over the first two waves, although after the second wave it was a little bit bumpy. The next wave was higher, "roughly three metres". Mrs Kaur indicated that the boat climbed steeply at an angle of 45 degrees. When asked what happened when the boat went up the wave she said:-
"A: So we all were up in the air for a few seconds and I'm telling about my stuff and I landed back on my seat.
Q: Did it land with much of a bang, or what was it?
A: Yes.
Q: Was it a small, large, whatever?
A: It was a big bang."
In cross examination, Mrs Kaur agreed that she had no idea how to estimate speed on water, or the height of waves. She gave a statement to police within 10 days of the incident in which she told the police that she didn't have any idea what the actual speed of the boat was.
Mrs Kaur had never been on a speed boat or a jet boat and had never been asked to estimate the speed at which a boat was travelling before.
Mrs Kaur agreed that she did not see the wave before the boat went over it. She was asked:-
"Q: If you didn't see the wave before the boat went over it, you'd be unable to estimate the height of the wave, would you agree with that?
A: When we were up in the air, I'm just predicting the height at that point in time."
She agreed she said in paragraph 7 of her police statement, "I don't think the driver did anything wrong". She agreed that was her view at the time, that the driver was not driving aggressively or in any way extreme. She believed there was a problem with the seats.
Mr Kaur agreed that she believed that they would be going fast, and that it would be a thrill ride. She agreed that the boat would be jumping over waves however she said "small waves". As to the safety briefing, Mrs Kaur did not agree that the representative of the company told the group about the boat, that it had 900 horsepower motors and that it would travel very fast over waves. She did remember him saying that it had a top speed of around 80 kilometres an hour. She denied that he said that it could get airborne going over waves. She agreed that they were told that it was important to hold on but not because the boat would be going fast over the waves. She denied that they were told that they had to read the conditions of the ride. She also denied that he pointed to the sign on which the conditions were set out in respect of the form Exhibit B. She was asked:-
Q: In any event he told you that once you read the conditions you'd be required to sign a form didn't he?
A: He said 'You have to sign the form,' and the form was given to me; not, nothing to do with the conditions."
She believed it was an attendance sheet and no one told her that she should read the words "Assumption of risk signature form".
Mrs Kaur gave evidence of the risks she believed were involved in going for the boat ride were:-
"A: That you should not be pregnant and should not have any back injuries and it will be-there will be spins, turns and water splashing…"
As to the incident, Mrs Kaur was challenged as to her evidence that the boat became airborne, on the basis that she did not tell the police that. She adhered to her evidence. She said that it was in the air for a couple of seconds, but she did not tell the police.
There was no re-examination.

[6]

Evidence of Vanessa Pillenger

Ms Vanessa Pillenger attended on 22 May 2010 with her boyfriend Mr Brendan Barnes to celebrate the birthday of Brendan's younger sister, Bridgette. Bridgette's mother purchased tickets for the family to go on a jet boat ride. She gave evidence that, after they arrived, they were asked to sign an attendance form which was on a clipboard. She identified her signature on Exhibit B. They were given spray jackets and then moved to the lower dock level to get on the boat.
Ms Pillenger gave evidence that when they got on the boat one of the persons from the company saidm "we'll be heading to - approaching the heads and if it gets bumpy hold onto the bars in front of you."
"Q: Were there any other instructions given?
A: No.
Q: Were there any instructions about whether you had any problems or health problems or anything like that?
A: No.
Were there any instructions about whether you should go and read some forms or look at signs or anything like that?
A: No."
Ms Pillenger gave evidence that when the boat passed the Taronga Park Zoo it accelerated to 60 kilometres per hour and continued up the harbour. Prior to the incident in which she was injured, she gave evidence that the boat went over three to five waves of less than one metre. As the boat approached the final wave, it accelerated above 60 kilometres oer hour. She could see the wave and gave evidence that the boat rose up at an angle of 40 degrees over it. Once it hit the crest of the wave "we were airborne". She said: "A: It felt like we were above the water, so as we were going up, it felt like five seconds airborne and then it hit the- we slammed- the boat slammed back into the water."
Ms Pillenger sustained a fractured eighth thoracic level disc. In cross‑examinationm Ms Pillenger agreed she had never been on a speed boat, and in estimating the speed of the boat she would be guessing. She also had no experience in estimating the height of waves. Ms Pillenger agreed that she did not have a recollection of everything that occurred on the wharf before the boat arrived.
She agreed that the safety briefing was given by a person standing on the boat whilst the group was standing on the wharf. She denied that he gave a general description of the boat and that it had a 900 horsepower engine. She denied that he told them that it travelled very fast over waves, and said she did not know that before she got on the boat.
Ms Pillenger agreed that the person said that they would be going fast over waves but she did not remember being told that it had a top speed of about 80 kilometres per hour.
She agreed that they were told to hold on and shown to hold a bar in front of them. They were shown how to sit with their legs straddling the seats. She did not recall hearing him say that they were not to stand up. She denied that they were told that if anyone was pregnant or had any back problems that they should not go on the ride. She then said that she was sitting on the boat whilst he was giving the safety briefing. When asked about whether she was a bit hazy about the briefing she said:
"A: I was sitting right at the back, like I said, so I couldn't hear most of the time".
Ms Pillenger said she expected that they would be going over the waves at speed, and that she knew there was a risk that they would be bumped around on the boat. She denied that they were told that they would have to go and read the conditions set out on the sign and that once they had read those conditions they had to sign the "Assumption of risk signature form". She didn't read that form (Exhibit B) but just signed it. She agreed that no one said it was just an attendance record.
As to the incident, it was her best estimate that the boat went up the wave at an angle of 40 degrees. She agreed that she could not see whether there was any water in contact with the bottom of the boat, and that it was the perception she had that the boat was above the water. She described that as a long time and said "It felt like it was five seconds". When put to her that the boat never actually got airborne she saidm "I was certain it was airborne".
In re-examinationm she described an uncomfortable feeling in her stomach as being the feeling of being airborne, "it was like a rollercoaster ride". She had not expected to go over big waves and there was no mention of how big the waves were going to be. She said "I just expected little waves".

[7]

Evidence of Mrs Shivani Talwar

Mrs Shivani Talwar was married to Mr Avikesh and they were friends of Mr Rohra and Mrs Kaur. They were invited to go on the boat trip on 22 May 2010 and arrived at Darling Harbour with them. When they arrived they were given a spray jacket to put on by one of the crew and then they proceeded down to the lower level where the boat was and were asked to sign a document. She identified her signature on Exhibit B and said she did not read the form. They then got on the boat and the only thing they were told was that it was "going to be a little bumpy at the front and less bumpy at the back". She asked one of the crew "Do you have a life jacket?" and he told her, "No, you just need to hold onto the iron bar in front of you".
Once the boat got into open waters, she estimated its speed at around 100 kilometres per hour. She estimated the waves at more than two metres.
When asked what happened she said they hit a big wave which was double the ones that she had seen before, "so maybe four metres". The boat was accelerating up the wave and hit the wave "very bad and we were are the air". When asked how long they were in the air she said, "a couple of seconds". She gave this evidence:-
"Q: Okay, and then what happened next?
A: Then we hit it really bad to the surface and that was, that was when everybody, when, we'd been hit, I actually hit my face on the iron bar that I was holding onto it and it was bad, I'm and I mean really bad. So bad, the driver did not stop. I'm bleeding, and then I just know that this is- and I'm just, and then that's the time when I shut my eyes and I'm just screaming at them to stop and my husband realised that I'm, I'm hurt, because he saw me bleeding. Everybody tells the driver to stop, that's when he stopped."
In cross examination, Mrs Talwar said she expected the boat to be going fast, but not very fast. She had read on the website that it could go 70 kilometres per hour. She expected that the boat would be jumping waves and she expected it to be "a little bumpy". Mrs Talwar was shown her police statement in which she stated that she had her eyes closed for the ride. She also stated, "and could feel the boat was going fast but I don't know what speed". Her estimate of 100 kilometres per hour was an estimate, not an exact speed.
She said that she didn't tell the police those things, they put that in their own words. She explained that she had wind in her eyes.
Mrs Talwar agreed that her eyes were closed at the moment of impact. She agreed that her estimate of the size of the wave as four metres was only an estimate, but would not agree that it was an exaggerated guess.
Mrs Talwar did not read the sign near the ticket booth. When asked whether there was a safety briefing, she said "No, nothing at all". She said once the boat arrived, "They told everyone to sign the document and hop on". She denied there was a man standing on the boat who gave a safety briefing to the group while they were on the wharf. She denied the boat was described as having a 900 horsepower engine. She denied they were told the boat would become airborne as it went over the waves and that it had a top speed of 80 kilometres per hour.
She denied that they were physically shown how to sit in their seat and how to hold on. Nor were they told the ride was not suitable for anyone who was pregnant or had back problems.
Mrs Talwar denied that the person giving the briefing pointed to a sign on the level above and said, "you should go and read that sign", and "once you've read the sign you should sign the assumption of risk form".
There was no re-examination.

[8]

Evidence of Mr Avikesh Avikesh

Mr Avikesh Avikesh gave evidence that he had seen the jet boat on the harbour prior to May 2010. He and his wife were invited by their friends to go on a jet boat ride on 22 May 2010 and arrived at the Darling Harbour wharf with their friends. They were given a spray jacket and were next handed a clipboard to sign their names. Mr Avikesh identified his signature on Exhibit B. No one explained what it was they were asked to sign.
There was no discussion or talk before they got on the boat. His wife asked about life jackets and someone told her to hold the bar. They said the boat was going to be high speed.
Mr Avikesh described the boat as speeding up as it passed the Opera House.
When they got to an area where there were waves, the boat went up a first wave which was 3 metres in height. The boat was travelling at 80 to 100 kilometres per hour and when it went over the wave it hit the bottom very hard. The boat then accelerated again and became airborne for three to four seconds. When asked to estimate the height of that wave he said it was "very high".
In cross examination, Mr Avikesh agreed that he expected the boat would be going at high speed which he described as 60 kilometres per hour. He had looked at photographs on the website of the boat and not read any of the content. He agreed it would be an adventure ride. He gave this evidence:-
"Q: You answered in response to my question that you knew there was a risk of some sort of injury didn't you?
A: I thought it's, it's going to be very safe.
Q: What did you think the significance of having seatbelts or harnesses was?
A: I think that, that saves you if something happens and you need, like, to safety measure I think.
Q: Did you think the presence of seatbelts would in some way prevent you from suffering some risk of injury did you?
A: 100 per cent and we were airborne."
Mr Avikesh was asked if, when he turned up and saw there were no seatbelts, whether he formed the view that there was some risk of being thrown around and suffering injury, which he denied.
Mr Avikesh denied that one of the staff members of the boat company gave a safety briefing. He disagreed that took place when they were on the wharf, and the staff member was on the boat. He denied being told details of the boat, including that the boat had a 900 horsepower engine and that it would travel very fast over waves. He further denied that he heard anyone tell them the boat had a top speed of 80 kilometres per hour and it could get airborne as it went over waves.
Mr Avikesh denied that he was told that it was very important to hold on. Rather the crewman said, "just hold this bar", referring to the top of the seat. He sat in the back of the boat because he thought there would be less impact and his wife was sitting there.
With respect of Exhibit B, he said he did not read the form before he signed it, and that no one from the company asked him to sign it. It was passed to him and he passed it onto someone else.
Mr Avikesh agreed that he told the police that as they left the wharf the driver said, "We'll be doing 220 kilometres an hour". It was put to him the driver never said that and he said that he told the police that the driver said they would be doing a high speed. He agreed that he told the police that when the driver went over the wave in question he was going very fast but he did not know how fast. He said that the driver "lost the plot". Mr Avikesh told the police the boat was going twice as fast. It was put to him that was not true which he denied, saying, "it was- even more than twice". He was also asked the question:
"Q: You don't know whether the boat got airborne do you?
A: It was airborne.
Q: The boat wasn't going nearly as fast as you suggest it was.
A: It was very high speed."
There was no re-examination.

[9]

Evidence of Mr Adam Wayne Barnes

Mr Barnes attended on 22 May 2010 with other members of his family. They were handed spray jackets and made their way down to the deck on the lower level. He identified his signature on Exhibit B which he said was on a clipboard. A member of the staff said "Has everyone put their names on this?". He then said:
"A: People individually lined up and went to the guy with the clipboard".
He did not read the piece of paper before he signed it. He described it as an attendance sheet. The only instruction given once they had boarded the boat was to "lean forward". No other explanation or briefing was given. Once the boat passed the Opera House it proceeded towards the Sydney Heads. When asked about the speed of the boat at that time he said:
"A: We accelerated and we were going really, really fast. But before we got to that point, we did some turns and then when we were heading out to the heads the swell picked up and we got going and we got around, if I'm true to my statement, it was around 60 miles per hour."
As the boat approached the heads the waves got bigger. The boat accelerated to 80 to 100 kilometres per hour. He based that estimate on his experience on his father's boat.
Mr Barnes estimated the height of the waves that the boat was travelling over as two and a half to three metres. He had experience on boats and with surfing.
They came to a set of waves and he estimated the first wave to be one and a half to two metres. The boat went over that and the next wave was bigger, and he estimated the height to be two and a half metres. The boat accelerated up the wave and he was asked:-
"Q: Then what happened to the boat as you got to the top of the wave?
A: Well we got to the top of the wave and we launched.
Q: When you say launched what happened to it?
A: Well, we went over the wave and we got airborne, that would have been four to give seconds. We've hit the desk and then the incident happened."
Mr Barnes sustained fractures to two discs in his back. He was asked whether the impact was a significant impact with the water and answered:-
"A: It was, it was the biggest pain I've ever felt and it was a really large impact, like nothing you'd ever believe."
In cross examination, Mr Barnes denied there was any briefing or that they were told that the boat would get airborne. He was asked about his experience on his father's boat in Pittwater. He had not been on a jet boat ride before. He described the waves he saw coming towards the boat as "a large set". He agreed that he stood up as he was going over the wave as he had got that advice from somewhere but did not know who told him. It was not from the crew. When asked if it was a member of his family who told him to stand he said he was not sure.
There was no re-examination.

[11]

Evidence of Mr Brendan John Barnes

Mr Brendan Barnes gave evidence that he had experienced driving a boat owned by his father that was capable of achieving speeds in excess of 100 kilometres per hour, and that he had operated that vessel in the open ocean in one and a half and two metre swells. He had also been a surf life saver,
On 22 May 2010, Mr Brendan Barnes attended his sister's birthday party at the Darling Harbour wharf. He was given a spray jacket to put on. Whilst that happened, a document was handed around and he gave evidence that, "I was just told to sign it by the person who had it before me". He did not hear anyone say anything about the document from the jet boat company. The document was on a clipboard, and he identified his signature on Exhibit B.
Before proceeding to the lower level of the dock, he gave the following evidence: "Q: Was there any more discussion from the person from the company while you were on that upper level that you can recall? A: There was there was a discussion about - yeah I was told to remain seated in the boat and to hold on to the bar in front of me."
Mr Barnes' evidence was that they then went straight to the boat as a group and got straight on the boat. There was no discussion with the crew before they left.
Once the boat was past the Opera House, it accelerated to between 40 to 50 kilometres per hour. As it proceeded towards the heads, he noticed some waves and one wave of significance. When asked what happened next, he said: "A Yeah well yeah, so the reason why I say one of significance is that the wave - all waves come in sets and so there's going to be smaller waves before larger ones. And there was yeah, there was one wave that was sort of in the set that I noticed of significance which was the, you know, about a one and a half metre wave. Q: OK, so how many sets of waves did you go over before the subject accident? A: Yes, we went over the one - the one wave and then, yeah, so yeah, we went over the one wave - one, one big wave and then the largish one which was the second one we went over."
Mr Barnes gave evidence that the boat was traveling at 60 kilometres per hour when it went over the first wave and it became "airborne slightly." He was then asked: "Q: Then what happened? A: Then it landed and then he increased speed coming to the second wave which was - Q: And so after the first wave, how - what sort of impact?" A: It was yeah, a minor impact, we were only airborne for you know, about a second or half second. Q: OK, then this - the next wave you approached what size was that wave? A: That was a large wave, that was about three and a half to four metres. Q: OK and what did the driver - what happened to the speed of the vessel? A: There - he increased speed and reached a you know, a point about - a fast point of acceleration at the top of the wave. Q: What sort of speed did it reach, the vessel? A: I - 70, 80km/h. It was very quick. Q: And then what happened to the vessel as it reached that point, it went over the top of the wave? A: Yeah, we became airborne and that's when they pulled back on the accelerator to stop the motor from turning when we were out of air and we hung in the air for about five seconds and then, yeah, everything sort of seemed to go quiet and then the boat, yeah, landed. Q: And you say they pulled back on the accelerator, did you say accelerator or not? A: Yes, yeah, yep. Q: How do you know that? Did you see it, hear it or what? A: You can, yeah, you can hear it yeah cause you could hear the motor, yeah, it stops revving or you know the revs drop down. Q: What occurred, after when it landed? A: Yeah well when it's landed that's, yeah, I experienced a pain like I've never felt before in my life. Q: Were you seated at the time you landed? A: Yes. Q: And what happened to you? A: My, I received a crush fracture to my tenth vertebrae.
Mr Barnes was seated right at the back of the boat on the right hand side. He was asked to physically describe what happened to the movement of his body after the boat landed, and answered: "A: Yeah well, yeah, so what, what had happened is when, when we launched off the wave I sort of bounced out of my seat and yeah, then recall that I'd been told to sit down so I remember being in the air and thinking I, I, we'd been in the air for a long time then sat back down in my seat and wondered whether we'd already landed or not and then, yeah, then the boat actually landed and while I was seated and yeah, I, I sort of sat there and, and, and couldn't, couldn't breathe or, or, or say anything because I was just hoping that someone somebody would stop the boat because I don't, I couldn't, yeah. Q: Are you certain the boat became airborne? A: Yes, yes."
In cross-examination, Mr Barnes was challenged as to his estimate that the boat was going a little under 40 knots at the time of the incident. He agreed that it was difficult to estimate speed on water but he denied exaggerating the speed at which the boat was going at the time it went over the wave. It was put to Mr Barnes that it was not true that the wave in question was 3 and a half to 4 metres in height. He said it was true. He disagreed that the wave in question, the cause of the problem, was between 1 and a half to 2 metres high. He also denied that the boat was travelling at a speed of something under 30 knots. He also denied that they were given a safety briefing at the lower level of the dock.
Mr Barnes agreed that his evidence was his best recollection of the events that occurred six years previously without regard to any contemporaneous documents. Learned senior counsel put to him the defendants' case as to the briefing on the lower deck and he denied each component of that briefing. He denied that they were told that they were told that the boat could get airborne and that they were physically shown how to sit in the seat and hold the metal bar. He also denied that they were told that the ride was not suitable for anyone who was pregnant, or who had any sort of injuries including back problems,
Mr Barnes agreed that it was an adventure ride and that he hoped it would be going fast. He also knew that the ride could be bumpy going over waves or swell, and he knew when he got on to the boat that there were no seatbelts.
Mr Barnes denied that he was standing up at any time on the boat, and did not hear one of his brothers telling his family members to stand up.
Mr Barnes denied that at the end of a safety briefing, the person conducting the briefing told him to read the conditions on the sign on the upper level and had pointed to that sign, and then told him that once he had read those conditions to sign the Assumption of risk form. When shown Exhibit B he said that he did not read it before signing it. It was Miss Pillenger who handed him the form.
When asked whether he accepted that his recollection of the height of the wave could be faulty, Mr Barnes said, "definitely not".
When it was put to Mr Barnes again that the boat did not become airborne on the subject wave, his answer was: "A: 100 per cent the wave - the boat became airborne, there is no, yeah no question about that whatsoever."
It was put to him that he had reconstructed the whole event for the purposes of his case which he denied. He agreed that the boat increased the speed by 10 to 20 kilometres per hour between the first wave and the second wave.
There was no re-examination.

[12]

Evidence of Mrs Samantha Barnes

Mrs Samantha Barnes attended with her husband at the Darling Harbour dock. She understood that a jet boat ride had been organised, and she had some experience of the ocean on boats and jet skis. She was given a spray jacket and then a clipboard on the upper dock area to sign. She thought it was an attendance list. She identified her signature on Exhibit B.
Mrs Barnes followed the others down to the lower dock and did not remember any member of the crew saying anything there. She got onto the boat and sat in the middle of the third row from the back. She heard someone saying to stand up and lean forward but she did not know who that was. After the boat passed the Opera House, she said it was doing 60 kilometres per hour. As the boat approached the Heads it was doing 80 kilometres per hour. The boat went over one wave of one and a half metres height and then a second wave of 2 metres height. She gave this evidence: "Q: OK and what happened to the boat as it went over the first wave? A: We went in the air and we came back, it was quite hard but it wasn't as bad then he accelerated and I saw the wall of water ahead of me, and someone said, "It's a big wave", and at this stage I closed my eyes I didn't know what - see what was going to happen because I knew it was-- Q: And how are you able to tell us what you describe as the wall of water or the wave? A: It was above the driver so it must be at least three metres high. Q: Then what happened and what feeling did you have in respect of the boat? A: I felt I was airborne for a few seconds - 3-5 seconds. Q: And what did you notice about when the boat came down? A: It just went bang on the water and I couldn't breathe you know, I was in awful pain and they kept going and the girls behind started screaming and someone told them to stop. Q: What you sustained - what sort of injury did you sustain? A: Compression fracture to T8. Q: Can you tell us about the speed as the boat went over this last wave. Are you able - tell us what speed it was going? A: Well I would estimate that it would be around 90 km/h even 100km/h."
In cross-examination, Mrs Barnes said she had not been on a jet boat ride before. Mrs Barnes denied that she was standing, but said that she was holding the bar, and bending her knees. She agreed that she was very scared on the ride but not that she had her eyes closed for a lot of the time. She said that she would close her eyes when hitting a wave. She denied that the jet boat people told her to hold on tight and to remain seated. Mrs Barnes denied that there was a safety briefing at the boat or that any instructions were given. She said, "If there were any warnings, I wouldn't go on that boat".
Learned senior counsel then put the defendants' case as to the safety briefing to her and she denied that such a briefing took place. When put to her that she signed the assumption of risk form, she said that, "I signed the attendance list". She agreed that her evidence was that no person from the boat company ever gave her instructions about anything on that day. She described the crew as, "young and casual boys".
As the boat approached the heads, she described the waves as getting bigger and bigger and the conditions as, "Getting really rough." She described seeing three waves, one over 1 and half metres in height, the second over 2 metres, and the third one, "around 3 metres".
She agreed that she did not mention 3 metre waves in her police statement. She made her statement to police on 22 June 2010. In that statement, she was unable to tell the police what speed the boat was travelling at. She did not tell them that it was travelling at 80 kilometres per hour. She said she was suffering a lot of trauma at the time she made her statement to police, and denied exaggerating her level of trauma. She said, "It was a horrific experience." She agreed that she told the police that she was just closing her eyes and told the court that she could predict what was about to happen. She said, "I could see the big waves and I knew he was driving way too fast for the waves that were coming". In her police statement, she said that the waves "would have been more than one metre high".
In her police statement, Mrs Barnes had told the police that she had stood up. She explained that in fact she bent her knee and lifted "my bum from the seat".
It was put to her that the boat did not get completely airborne which she denied. She described the boat as landing really heavily, "it was a massive bang". She agreed that she landed heavily on her bottom. She said the boat was airborne for at least three seconds, or between three and five seconds.
It was put to Mrs Barnes that she was not being truthful about the height of the wave or the speed of the boat which she denied. Finally, she denied that she was standing up.
There was no re-examination.

[13]

Mr Wayne Fitness

Mr Fitness prepared a report dated 31 October 2014, which became Ex A20. Mr Fitness held qualifications as a Master Mariner Class 1, and had 21 years sea command and operational experience in the Royal Australian Navy, attaining the rank of Lieutenant Commander. He had worked as a boating safety officer employed by New South Wales Roads and Maritime, and was conversant with New South Wales Maritime legislation. His qualifications were not challenged. In his report, Mr Fitness expressed a number of opinions which were summarised under the heading "Executive Summary", as follows: "(1) The printout of the vessel's survey stated that the vessel is not to operate when wave height exceeds 1.5 metres. (2) The vessel encountered a 2 metre swell off Obelisk Bay which resulted in significant injuries to the passengers. (3) The master failed to conduct proper passage planning, failed to appreciate that swell conditions were increasing, failed to proceed at a safe speed, and did not manoeuvre his vessel to meet the swell at a safer angle."
With leave, Mr Fitness gave the following evidence in chief about the vessel's class 1 survey issued in Queensland. That survey authorised the vehicle to be used in "partially smooth waters". When asked about what that meant, Mr Fitness said: "A: A class 1D survey means that he's authorised to operate in partially smooth waters and the Marine Safety Act defines that as waters of 1.5 up seas - wave heights up to 1.5 metres 90 per cent of the time. Q: What does that mean in reality for mariners in terms of their decision to operate? A: That, that means if the wave heights are greater then 1.5, he should cease operating in that area."
In cross-examination, Mr Fitness agreed that a survey report undertaken by New South Wales Maritime on 14 May 2010 (Ex A7), suggested any concern that the boat involved in the incident should have safety harnesses or seatbelts was not warranted.
When asked whether he believed the boat was operating in accordance with all appropriate laws and regulations in the survey, Mr Fitness said: "A: I believe he was operating outside his survey, so they, because the wave height was higher than what was stated in his survey."
In his report, Mr Fitness identified that the Master stated he was travelling at 10 knots at the time of the incident, the deckhand said 50 kilometres per hour, and a number of other statements of the plaintiffs were paraphrased. He was asked about the statement of Mr Craig Barnes, in which he said, "I think the boat was going at a speed no faster than the waves before". He answered: "A: I was a little unsure of his meaning there, whether he was talking about the speed of the waves or the speed at which the boat approached the waves."
Mr Fitness agreed that it was notoriously difficult to estimate the height of waves for an "untrained observer". He agreed that the estimates of speed given by passengers in boats could vary wildly.
Mr Fitness agreed that wave height is normally measured from trough to crest.
Mr Fitness gave evidence that having encountered a 2 metre swell, the boat was operating contrary to survey. He gave the following evidence: "Q: But you're not really suggesting, are you, that, having not encountered the wave of 2 metres before that, if that be the facts in this case, the fact that he came across a 2 metre wave meant that he was operating breach of survey, are you? A: Yes, because my understanding of it is that a prudent seaman would have seen that he was coming out of the lee of south head and that the swell was progressively increasing. Q: And so if the Master had been proceeding and hadn't encountered any such wave of that height, if it be 2 metres, in all the conditions up to that point, wouldn't you agree then, that the normal conditions, having regard to the survey, were, in fact, not 2 metres but something less than 2 metres? A: I would think a prudent mariner would appreciate the fact that the swell was increasing and that he was going into an area where the waves would be in excess of his survey."
Mr Fitness formed the view that Mr Edward Curtis must be wrong as to the wave size, as his statement was contrary to other statements. It was suggested to Mr Fitness that he had been selective in the material he had relied on from the various witness statements. He answered: "A: Not entirely. I looked at the, the various vessel incident reports, and the reporting of external observers and I took a consensus of reports from the statements made. The crew member, as I recall, was at variance with what the, what the, what the skipper said it was."
In accepting the skipper's estimate of the wave, Mr Fitness said that he took the most reliable estimate. He denied that he discounted the crewman's opinion.
Mr Fitness agreed that estimating wave size was a matter of estimation, coupled with experience. He agreed that the best person on the boat to determine the speed at which the boat was going would be the Master of the vessel. The Master would also make the best estimate of the wave height.
Mr Fitness gave evidence that if the actual wave was around 1 and a half metres, he would still be critical of the Master on the basis that he was still required to proceed at a safe speed, and maintain a proper lookout. He denied working backward from the fact that a number of people on board the vessel sustained injuries. He stated: "A: The Master is responsible for the safety of the passengers and crew."
Mr Fitness agreed that the whole idea of the boat in question was to travel fast over waves. Travelling at a speed of 10 knots in the circumstances was excessive and unsafe in the prevailing conditions. He was asked: "Q: It wouldn't, I suggest to you, be unsafe or dangerous in any way for a boat of this type to be travelling at a speed of 10 knots through and over a wave between 1.5 and 2 metres, would it? A: It could be, there's, there's a definite danger there. … Q: You're not seriously suggesting it'd be dangerous for this boat to be travelling at 18 kph over a wave between 1.5 and 2 metres high, are you? A: I am because there are a number of variables. There's wave length, would he be going from one wave to the other, or would he be going from the crest of one wave to the trough of the next one? What was the shape of the wave, if the wave was back less, whether he'd go through and just drop, there are many variables. My point, my point being in this situation, that he was entering an area of increasing wave length."
Mr Fitness gave evidence that a speed boat such as this, with a planing hull, would get on the plane at about 10 knots. He was of the opinion that the boat in question should not be allowed to operate in the conditions experienced on Sydney Harbour.
Mr Fitness agreed that if the swell was predicted to be 1 to 1.5 metres, he would have no difficulty with the boat operating in those conditions, but qualified his answer by saying, "at the appropriate speed".
In re-examination, Mr Fitness was asked: "Q: You were asked about paragraph 13 of your report about the nature of the seats and reference to no restraining devices or harnesses? A: Yes. Q: Is that something that the Master would need to take into account in terms of the way the passengers are restrained and protected in terms of determining the speed at which the vessel was going and the sort of waves or wave heights over which the vessel should traverse? A: Most certainly he could perhaps have a margin of safety if the passengers were restrained.
Mr Fitness also gave evidence in re-examination about the bureau of meteorology wave rider buoy off Sydney Heads, which measures the actual height of waves from trough to crest. He also gave evidence that wind strength could affect the height of waves. When asked whether the driver of the vessel was not keeping a proper lookout, he answered: "A: If he was keeping a proper lookout he should have had a better appreciation of the size of the waves. Q: Is it a function of the terms of the weather, safe to traverse 1.5 metres is really a function of wave height and the speed of the vessel? A: Yes, it's a combination of both."
He agreed that in cross-examination it had not been suggested to him that the vessel was travelling at a particular speed. He was asked to explain his evidence that a speed in excess of 10 knots could not be considered appropriate. He gave the following evidence: "A: Because waves are not regular beasts, if it had been a long ocean swell, where we would have climbed to the peak and then gone down the other side, yeah a faster speed could have been quite safe. But when you're approaching a sudden increase in swell and you are unsure of the shape of that wave, a prudent mariner would reduce to steerage way, say about 4 knots, and allow the wave to pass under him, before re-assessing. Q: Is it practically possible to reduce to those speeds? A: Quite practical and prudent. Q: And that if it - if the description of the events were that as the Master of the vessel was approaching the subject wave, if he was travelling at a speed of 10 knots which he understood to be a safe speed for travelling in that time, what would that indicate to you about the conditions at the time of the size of the waves and the like? A: It would tell me more about the Master's lack of appreciation of the conditions. Q: In what respect? A: In that he didn't adjust his speed and course accordingly. Q: Well what should he have adjusted it to? A: I believe he should have reduced to steerage way and put the bow - the wave just off his bow which is the accepted - the accepted practice for heaving-to if you like. Q: Well how does that help, the - off the bow, what does that do? A: It combines the effects of pounding and rolling and so tends to mitigate both to make the - to make the vessel's movements less excessive."

[14]

Mr Dominic Woolrych

From 2008, Mr Woolrych worked as a crewman for the defendants, as he was studying part-time. On the day in question, he was working as a wharfie, not as a crewman, but had prior to that day, worked on the vessel Extreme II on at least 200 trips. He understood its maximum speed unladen was 52 knots and was aware of the speed restrictions within Sydney Harbour, including that between Bradley's Head and Sydney Heads of 30 knots.
Mr Woolrych gave evidence that on the day in question, as a wharfie, he was responsible for checking the passengers in, kitting them with spray jackets, stowing their valuables away in lockers, and providing a safety briefing.
Mr Woolrych identified himself in a photo taken of the group on that day, and gave evidence of the check-in procedure whereby each of the guests were ticked off on a list. They were then given a spray jacket and then walked down the ramp to the wharf. Once the passengers were all standing on the pontoon, he got onto the boat and stood on the actual seats. He gave the following evidence: "Q: So you're standing on the boat, and what do you say and do after that? A: So the next process is a safety briefing and I, I started the safety briefing by telling the passengers about the boat. Q: What do you say about the boat? A: It's an 11.3 metre RIB, it has triple 300 horsepower engines on it, top speed of roughly 52 knots, and the boat is designed to go at high speeds in rough water. Q: What else did you say? Can you just go through your safety briefing as it you're doing it now then, please? A: Yes. So give the, the specs of the boat and then the next thing …" When asked to give his evidence in the first person, the witness said: "A: … this is, this is Ocean Extreme. It's a rigid inflatable boat used by the, the military. It has a top speed of 52 knots, which is roughly about 80 kph. It has triple 300 horsepower engines and is designed to go at high speed and offshore. You cannot ride this boat if you are pregnant, if you have any type of back injuries and if you have type of medical conditions. I then said there was a form that needed to be signed, an assumption of risk form, and all persons needed to sign this form." The witness then went on: "A: Let me tell you about the way to sit on the boat because that's the most important part. So you need to straddle the seat just like you're riding a horse, you are never allowed to stand up and you must have two hands on the handle bars at all times. Now, if the boat is to hit rough water you need to roll your pelvis forward and use your thighs to support yourself. Q: Okay, now we're still on the safety briefing. I want you to say all the things you said in the safety briefing, do you understand that? … A: And this is the point where I would have - where I did get to the assumption of risk form, so all passengers that … want to ride need to sign the assumption of risk form. There is a sign on the wharf that needs to be read and I gestured towards that sign and then handed out the assumption of risk form. Q: Do you - indicated what you say do you give any demonstration during the course of the safety briefing? A: Yes. Q: What do you do? A: Sit on the boat like the - demonstrating how the passenger is meant to sit on the boat. So from standing up on the seats I would have - I did straddle the seat and show that you need to - so that you need to lift your back off the seat. Q: Is that it for the safety briefing as far as you recall, anything else? A: There's one more point which is if you have any problems, tap the person on the shoulder next to you and they'll - and indicate to the driver. Q: How are they supposed to indicate to the driver? A: By shouting out or tapping the person on the should next to you and they can shout out. Q: And then what happens in terms of what's happens with what you do and what happens with the form, could you explain to his Honour? A: The form passed around signed by each member that he's riding on the boat and then my role is - my role was and I did, check the number of signatures against the number of passengers on the boat. Q: And did that occur on this day? A: That's correct and then I handed the form to the driver who signs the form making sure - making it legitimate."
Mr Mr Woolrych then identified Ex B as being the Assumption of risk form dated 22 May 2010.
Mr Woolrych described the difference between the jet boat ride the passengers had booked, and the boat they went on as follows: "A: Okay the difference between the two boats is that a jet boat uses a jet marine engine and that allows it to do 360s so it's more like a rollercoaster up and down 360s and you need to wear a double - double harness. On Ocean Extreme you use a normal boat engines, propeller engines and there is no seatbelts, it's designed to go fast, the jet boat is designed to spin around. Q: Is it possible in your experience that the ocean extreme could become airborne going over waves? A: Yes. Q: And do you mention that at all to anyone during the safety briefing? A: Yes. Q: What do you say? A: The boat is designed to go high speeds and rough water and jump waves."
In cross-examination, Mr Woolrych said that he did not notice any of the passengers walk up the ramp to read the sign before they signed the assumption of risk form, which was handed around and signed. It was put to him that he knew that nobody had read the Assumption of risk form and answered, "I can't say either way".
Mr Woolrych gave evidence that the defendants own three harbour jet boats, however, only one was used at any one time. He agreed that in terms of excitement and danger, the jet boat was more exciting and dangerous than the Extreme II ride. He was not aware of passengers suffering serious injuries on Extreme II prior to this incident.
Mr Woolrych said there was nothing particularly memorable about organising the passengers and getting them onto the boat on this occasion. He had given his evidence of what occurred from his memory rather than describing what he would normally do, however, he could not remember the faces of the passengers involved, nor could he recall the time, or the fact that the jet boat was out of service that day. Nor did he know that the conditions on the sign actually referred to Harbour Jet, and did not refer to Extreme II.
Mr Woolrych was asked: "Q: I'm just wondering whether on this day, you know, for whatever reason, you really didn't give them the safety talk? A: No, the safety talk was given. Q: Was it the case there's supposed to be an onshore briefing and an on board the vessel briefing from the skipper? A: I don't, I don't recall. Q: I want to suggest to you that, on this day, the situation was that there was a group of people near you and you invited them to sign the assumption of risk form and merely held the form up on a clipboard and said, 'You will all need to sign this', and handed it to one of the group - this is up on the upper deck area - then the people commenced to sign it and, as it were, pass it amongst themselves; would you agree or disagree that that happened, or just don't recall? A: No, I don't recall. Q: It might have happened but you have no recall? A: No, after the briefing on the boat is when we hand, when I handed the form."
Mr Woolrych was asked when he told people they had to go up and read the terms on the upper deck before signing the Assumption of risk form: "Q: Did anyone say, 'you've got to be kidding', or 'do you really want us to walk up there?', did anyone say anything like that? A: Not that I recall. Q: Do you always do it that way? A: Which, which way? Q: That is, you're down on the lower deck, you walk from the upper deck where the sign is, the conditions and so on, you walk down with your form and then tell them to go back up and read it; is that what you do each - A: That's, that, I think for the most, mostly that's how it worked. Q: Did people ever walk up and do it, or did they ever complain? A: No one ever complained. Q: Did anyone go and read it, to your observation? A: Yes, people used to study it quite in detail. Q: What, people would leave and keep the boat waiting while you went up to that point? A: No, there was - I don't recall on this day, but there usually there was general, generally two, three, four minutes between the safety briefing and the boat leaving for people to do what they wanted to do. Some people used to say, 'I do have a medical condition; I can't come on the boat."
Mr Woolrych denied that it was part of the briefing to tell people that it was a less bumpy ride at the back of the boat.
Mr Woolrych then gave evidence that they had tested the Extreme lI Iaden with passengers and the top speed was 32 to 34 knots.

[15]

Evidence of Mr Edward Curtis

In May 2010, Mr Curtis worked as a deckhand on the Extreme II. He had been working there for about three months on a part-time basis. He was then 19 years of age. He gave evidence that Mr Woolrych gave the safety briefing but could not recall where he was when he gave the safety briefing.
Mr Curtis said the passengers got on the boat after the safety briefing, whereupon he untied the boat and it left the dock.
Mr Curtis gave evidence that the boat complied with the speed restrictions within the harbour and that he communicated with the passengers during the trip. As to the incident, he was asked what happened and gave the following evidence: "A: So as we were approaching up to South Head, that's where we were sort of entering the area where - it's open water, so the boat would have slowed down and as we were going over the waves what I recall was around 1 to 1.5 metre high, the waves. We went over one particular wave and as we were going over waves I was always turning back as well to see how the passengers were doing. We came over one wave, I looked back one passenger indicated to me that he was injured. I immediately told the driver to stop the boat, we did that, then we walked back to the passenger to assist. Q: First of all, did the boat - was it your impression the boat became completely airborne, and by that I mean completely lost contact with the water? A: No the boat did not keep completely airborne. Q: What happens when the boat goes over the top of waves? A: The very front of the boat would have been airborne but the back half of the boat would still be in the water."
The witness gave evidence that the boat went up the wave at an angle of 45 degrees. In respect to the incident where passengers were injured, he estimated the height of the wave as between 1 to 1 and half metres. The boat had been over waves of similar height before that. Mr Curtis did not recall the driver accelerating over the wave. At the time of the incident the boat was just off Obelisk Point, heading towards the heads.
In cross-examination, Mr Curtis agreed that that was an area where he would expect to approach waves as they came through the heads. Mr Curtis had previous experience on small fishing boats. He agreed that when the boat went over the 1 and a half metre waves, the bow lifted a little out of the water. He then agreed that it came back gently, that is the bow returned to the water gently, and he was somewhat surprised to see that people were injured. He described the impact as "nothing out of the ordinary", and the only reason he turned around was that that was part of his job, to turn around after all the waves.
Mr Curtis did not recall that the passengers had originally arranged for a jet boat ride.
Mr Curtis was asked about a statement he made to the police, in which he told the police that the terms and conditions were outlined to the passengers by either himself or Mr McMonnies.
Mr Curtis gave evidence that, on the upper level of the wharf, there had been a discussion about the terms of conditions, a safety briefing, the signing of the assumption of risk form, and the handing out of spray jackets. The group was then walked down to the pontoon where the boat was and given a demonstration of how to sit. He agreed that his police statement said that Mr Darroch gave them the usual safety briefing. He agreed that his memory had been mistaken about the safety briefing taking place at the boat. He gave the following evidence: "Q: And what I want to suggest to you is the only safety briefing at best was when people were getting onto the boat they were told to take a seat and hold onto the bar? A: No, it would have been a lot more thorough than that. Q: And all that was really said is, 'You get a less bumpy ride at the back rather than at the front', is that something that might have been said? A: It would have been said a lot more thorough than that. Q: And the signing of the form was just effectively, people handing around the form, the assumption of risk form, on a clipboard and people just handed it around amongst themselves and signed it without any explanation from you or anybody else? A: No, people would have signed that after we read through the terms and conditions for them and they'd read it."
Mr Curtis agreed that he had told the police that the boat had been travelling at 80 to 90 kilometres per hour through the harbour and the boat has a top speed of 100 kilometres per hour. He also agreed that he told the police that the boat was travelling at 50 kilometres per hour and they drove through a wave head on that was about 1 to 1 and half metres. He would not agree that the wave was one and a half to 2 metres, nor did he believe that the boat was going 60 kilometres per hour into the wave. He denied that the boat accelerated as it approached the wave so that it was going 80 kilometres per hour, and did not agree that the wave was something like 3 to 4 metres in height. Nor did Mr Curtis agree that the boat became airborne and came down with a very heavy impact.
Finally, Mr Curtis described the wave over which the boat traversed prior to the passengers sustaining injuries as, "a complete normal ride", and it was a mystery to him how they sustained injury.
In re-examination, Mr Curtis said that he was unaware that any of the passengers were standing up.

[16]

Evidence of Mr Darroch McMonnies

In May 2010, Mr McMonnies was employed as a Master by Ox. Two Pty Ltd, whose parent company was Jetboats Australia Pty Limited. He had taken passengers out on the Extreme II boat several hundred times prior to this occasion and was familiar with the speed zones within Sydney Harbour.
Mr McMonnies recalled that a safety briefing took place that day before they left Darling Harbour. He gave evidence that when the boat got towards Obelisk beach, he turned it towards the inside of South Head. He then gave the following evidence: "A: I encountered a 1.5 to 2 metre wave. As we approached the wave I de‑accelerated. The bow of the boat came out of the water and came down with a bang, no greater than usual. This is something I would perform 20 times every tour and, and then at that point, Ned, my crewman, informed me that people had been injured. At which stage we terminated the ride and headed back to Darling Harbour at no more than 8 knots and proceeded to call ambulance and we interviewed by police (sic)."
Mr McMonnies gave evidence that the boat was travelling at between 25 to 30 knots as it approached the wave. He denied that the boat got airborne as it went over the wave. He gave the following evidence: "Q: It's been suggested that when the boat got airborne the engines went silent because, it's been suggested, you reduced the revs in some way deliberately as the boat was airborne. What do you say about that? A: Well, I mean, I did reduce the revs as we went up the wave. I mean, that's how we de-accel, you know, there's no brake on a boat, that's how you brake but the boat didn't leave the water. I mean, you, even if you de-accelerate right down, you're going to still hear the exhaust of the boat when they leave the, when the outboards leave the water; and we didn't hear that. Q: What happens in terms of noise when the whole of the boat leaves the water? A: Well, as, as I was just explaining, the, the exhausts are inside the propellers and once that comes out of the water, it's a very loud noise. You know, distinctive to a normal engine noise or a normal outboard running in the water. Q: Leaving, going airborne, is that something you would try to do, and if so, why, and if not, why not? A: Yeah, you would never try and go airborne. Obviously the passengers' safety is first concern, but secondly you can very easily do damage to the outboards. When the outboards leave the water the propellers spin faster than they should because there's no resistance from the water, when they do re-enter the water they slam against the back of the boat and you can do, break brackets off, off outboards. Q: Are you able to say, give any estimate of the speed you were going as you went over the top of the wave? A: I'm not looking at the speedo at that point, but I would estimate around the 10 knot mark. Enough that the bow of the boat comes out of the water but not so much as the whole of the boat leaves the water."
Mr McMonnies gave evidence that he had been out in 2 metre waves many times prior to this incident.
In cross-examination, Mr McMonnies said he had never had a day cancelled because of the size of a wave. That included days where there had been enormous swells outside the heads. He described the tour on this occasion as "a thrill boat ride that takes you around to Bondi Beach and back again, through open ocean conditions". He estimated the top speed for the boat when laden as 40 knots and said that the boat could accelerate quickly. He described there being a 45 degree angle on the 1 and a half to 2 metre wave and said, "Then you're looking at something that the boat is going to use as a ramp and that's when you slow down".
Mr McMonnies remained on the boat during the safety briefing, which he described as follows: "A: The safety briefing is conducted right next to the boat because part of the safety briefing involves a demonstration of how to sit on those seats. I should correct that, how to be prone on those seats. We don't advise people to sit down as much as use their legs as shock absorbers."
On some days, Mr McMonnies will give the safety briefing. He agreed that he had no actual memory of the briefing on this day, but said there was a formula and a piece of paper on which the briefing was written.
Mr McMonnies had not seen the boat's survey before he started operating the vessel and no one had told him about the survey. He gave evidence that he was absolutely surprised to hear that the survey included a restriction on operations for wave heights under normal conditions, not exceeding 1 and half metres. He agreed that by operating the boat where waves were the height of 1 and a half to 2 metres, was going outside the survey requirements.
When asked about the effect of a south-easterly swell entering Sydney Harbour and backwashing off Middle Head, Mr McMonnies agreed there was a backwash. He said: "A: That's correct. Yeah. Well there something unique about inside of South Head where, you know, you'll get waves stand up and, and be quite awkward. We try and avoid that where we can."
Counsel then asked again about the safety briefings: "Q: Is one of the things that you sometimes said, is that it's less bumpy in the back than at the front of the vessel? A: Yes. That's correct."
When asked whether the wave in question was part of a set of waves, Mr McMonnies said: "A: No. It, it stood by itself and was the first decent wave we'd encountered on that tour."
He denied that the vessel could be travelling at 80 to 90 kilometres per hour within the harbour, but said it would be capable of doing 80 kilometres per hour. In respect of his evidence that, "as he approached the wave he was knocking the throttle right back", he agreed that he was recounting his habit rather than his actual recollection on this day. He agreed that it was always his habit to reduce the speed of the vessel as he approached the first set of waves. He said he was 150 metres from the wave when he decided to "drop the throttles back to idle and let the engine slow the boat down". He then said the boat passed over the wave at 10 knots approximately. When it was put to him that that was not fast, he said: "A: No, but you've got to consider that the wave is moving at a speed as well. So, say the wave's moving at 5 knots, then you've got 15 knots off a wave that looks like a, a half-pipe skateboard ramp. It's, it's enough to get the nose out of the water."
Mr McMonnies was cross-examined on a Statutory Declaration he made for the police on 23 May 2010. That document described the vessel as "rising and falling over the swell", and then "we hit a one and a half to 2 metre wave". He said that he imagined that the first half of the boat had come out of the water as it hit the wave.
He also agreed that there would be a strong likelihood of people suffering injury if that were to happen.
It was put to Mr McMonnies that he went over the wave at no less than 50 kilometres per hour, or approximately 30 knots. He denied that, saying he went over the wave at 18 kilometres per hour or 10 knots. He further denied that he might have gone over the wave at between 60 or 70 kilometres per hour, and that the boat was airborne for several seconds, between two and four seconds. He would not agree that the wave was in fact in excess of 2 and half metres in height.
The witness denied that he throttled back, that is turned the power off, as the vessel went over the wave. He said: "A: I had the throttle off as we went over the wave. The engines didn't leave the water and we were not airborne."
There was no re-examination.

[18]

The defendants' submissions

Learned senior counsel for the defendants conceded that the first defendant was acting as agent of the second defendant. The essential issue in the case was whether the employee, Mr McMonnies, drove the boat negligently. Resolving that issue, either under the provisions of the CLA, or under s 74 of the TPA, involved, it was submitted, the same principles. It was conceded that the owner and driver of the commercial vessel owed a duty of care to persons who were passengers on the boat.
The issue, therefore, is one of breach of duty of care. It was submitted that the case was unusual because there was no collision, i.e. with another boat, but rather, the plaintiffs allege that the driver of the boat was negligent in the way he managed or controlled the boat.
It was significant here that the wave encountered by the vessel, was the first, and only one of its kind or type or height, which the vessel had encountered. This was important to meet the plaintiffs' contentions that the vessel was being operated contrary to its survey.
The defendants submitted that the witnesses gave different estimates of the speed of the vessel and the height of the wave, and that only some of that evidence could be accepted.
It was submitted that the court would accept the evidence of Mr Woolrych and Mr McMonnies as to the safety briefing taking place whilst the passengers were located on the pontoon, adjacent to the boat. That included, the defendants submitted, the statement from Mr Woolrych that the boat could get airborne and a demonstration of how the passengers were to sit in the boat.
It was submitted that estimating speed of vessels on water and height of waves accurately is difficult for anyone, particularly passengers who admitted to no experience on the water or on boats.
Mr McMonnies, on the other hand, was a professional driver and a very experienced Master. His evidence was that he was driving the vessel at 25 to 30 knots and slowed down to 10 knots to go over the wave. The boat ascended the wave at an angle of 45 degrees and the bow went into the air, eventually coming to an impact with the surface of the water. The court would accept that he went over the wave at a speed which he, as the driver, considered safe, i.e. 10 knots. Mr Fitness, on the other hand, was of the opinion that that was not a safe speed.
The defendants submitted that the plaintiffs' expert, Mr Fitness, was wrong to assert that the boat was being operated contrary to survey, merely by encountering a wave of up to 2 metres. The survey, on its terms, referred to "normally expected conditions", where the boat should not be operating at no more than 1 and a half metres.
It was submitted that the only criticism Mr Fitness had of the driver related to the height of the wave and the speed at which the driver went over the wave. If Mr McMonnies' evidence was accepted, that he decelerated the speed of the vessel from 25 to 30 knots, down to 10 knots, it was submitted there could be no finding of negligence made against him.
It was submitted that this case was similar to Derrick v Cheung [2001] HCA 48, but on the harbour. The court must look prospectively at the situation as the driver faced it. It would be incorrect for the court to commence with the proposition that all of the passengers sustained injuries and work backwards from that, thereby finding that the driver was negligent.
Learned senior counsel for the defendant asked rhetorically, "What was it that the driver should have done differently?" Thus, if the driver was driving the vessel at a lower speed, the court would have to find that, at that lower speed, none of the plaintiffs would have been injured. It was submitted that the court could not find factual causation on the evidence here.
The defendants submitted that contributory negligence arose because the passengers did not follow the instructions given to them in the safety briefing. Rather, when told to by Mr Craig Barnes, a number of the plaintiffs stood up, contrary to the advice they were given.
The defendants accepted that s 74 of the TPA was applicable. That section involved the same test, namely, whether there was a failure to take care, as under s 5B of the CLA. The plaintiffs, however, relied on the exclusion of liability regarding the assumption of risk, i.e., s 68, which renders that exclusion of liability void. The defendants, however, relied on s 68B, which deals with recreational activities and exclusions. The issue to be determined therefore is whether the activity engaged in here was the type of exclusion which comes within s 68B of the TPA.
Pursuant to Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361, it was properly conceded that the defendants did not obtain the benefit of ss 5M and 5N of the CLA. However, the defendants did rely on the defences pleaded by them, pursuant to ss 5F, 5G, 5I and 5L of the CLA.
The defendants criticised each of the plaintiff's evidence as to the speed of the vessel and the estimate of the height of the wave as being unreliable. It was further submitted that the defence witnesses were reliable witnesses who should be accepted as to the critical matters of vessel speed and wave height.
Further, the defendants submitted that an inference should arise pursuant to the principle in Jones v Dunkel (1959) 101 CLR 298, in respect of Mr Craig Barnes, whose statement became Ex 7. No explanation was given as to why Mr Barnes was not called to give evidence. First, his evidence was consistent with that of Mr Woolrych as to boat speed. Further, he was the only person out of all of the plaintiffs who said that he signed a waiver. Every other witness said it was an attendance form. Paragraphs [11] and [12] of his statement were consistent with the evidence of the defendants' witnesses.
It was submitted that the reality of this case was the plaintiffs were to go on an adventure ride. That involved going over waves at speed, and they were told that it would be bumpy, and it was bumpy. It was submitted that in the fact that the plaintiffs all bought tickets for the jet boat ride was not relevant, because the Extreme II ride was a less adventurous ride than the jet boat as the vessel did not spin and did not come to a stop.
In relation to contributory negligence, the defendants submitted that if any particular plaintiff was standing, then that plaintiff should not have been. Mr Adam Barnes and Ms Vanessa Pillinger said they were. If that was contrary to the instructions given by the defendants, then a finding of contributory negligence should follow.
In relation to the contractual case brought by the plaintiffs, it was submitted that each of the plaintiffs are bound by the terms of the document they signed. That document clearly referred to the assumption of risk by each signatory. Further, when the tickets were purchased, they were subject to "ride restrictions" found on the website (see Ex A4, pg 12). The evidence of Mr Woolrych was clear, that when they arrived at the wharf, they were pointed to the sign and told to read it before they signed the assumption of risk form. The defendants were therefore entitled to rely on the terms of the contract (although it was accepted that if sufficient notice of the term was not given, the defendants could not rely on it in relation to the claims brought by Mr and Mrs Kishore).
It was further conceded that the purpose of s 68 of the TPA was to render such terms void so that the defendants should not rely on it. However, s 68B allows providers of recreational services to still rely on such terms and conditions.
If the purported exclusion of liability falls within the type of activity contemplated by s 68B, it was submitted that the defendants could not rely on it, however, they could still rely on the CLA.
In relation to the defences pleaded pursuant to ss 5M and 5N of the CLA, the defendants relied on Motorcycling Events Group Australia Pty Ltd v Kelly, supra. If the court was satisfied that there has been breach of s 74 and s 68B does not apply, it was submitted that the court then had to determine the matter on the basis of the question of negligence outlined above.
The defendants further sought to rely on ss 5L and 5K of the CLA. It was submitted that, on the authority of Alameddine v Glenworth [2015] NSWCA 219, to the effect that if the boat ride was held to be a dangerous recreational activity, the defendants could rely on s 5L, which fell outside s 74A(2) of the TPA.
Here, it was submitted that what was engaged in was clearly a recreational activity. The question is whether it is an obvious risk of a dangerous recreational activity. The evidence established that no plaintiff was thrown off his or her seat, except for one plaintiff, nor had they collided with anything. The obvious risk, it was submitted, was that when being jolted or moved about, it is possible a person might suffer an injury to the spine, or it was possible that someone might hit their head on the handlebar. It could still be an obvious risk, even with a low probability of that occurring.
It was submitted that the real question here was whether this was a dangerous recreational activity. Each case had to be determined on its particular facts. The activity engaged in here was dangerous because the activity involved riding across open waters, across waves, at speed, and doing that is dangerous. The reason it was dangerous is that, although there was a very low probability of any sort of catastrophic injury occurring, there is a risk of it occurring because they are travelling at speed. An analogy was drawn with paying to drive a racing car around Oran Park. Here, there were two reasons why it was a dangerous recreational activity. First, although there is a low probability of injury occurring, the consequence of an accident would be catastrophic, for example, people being thrown into the sea. Secondly, it was dangerous because there is a higher probability or possibility of slight injuries being sustained. The plaintiffs relied on the principles set out in Campbell v Hay [2014] NSWCA 129 and Fallas v Mourlas (2006) 65 NSWLR 418.
It was submitted that the test is an objective one. It was further submitted that "safe" is a relative term and s 5L could not be overcome simply by submitting that the defendants' website advertised the activity as "safe". Section 5L here, gave rise to an absolute defence.
The defendants also relied on s 5I by submitting that there was a materialisation of an inherent risk in the activity and therefore the section should apply.

[19]

The plaintiffs' submissions

The plaintiff relied on a written outline of submissions which set out the relationship between the defendants, and the details of the two ticketing contracts that were entered into, the first between Ms Lynnette Barnes and the second defendant, on behalf of the plaintiffs', Ms Vanessa Pillinger, Mr Adam Barnes, Mrs Marta Barnes and Mr Brendan Barnes, and the second between Mr Kishore Rohra and the second defendant on behalf of himself, Mrs Harpreet Kaur, Mrs Shivani Talwar and Nr Avakesh Avakesh.
There was no contractual arrangement between the plaintiffs and the first defendant. The first defendant was the agent of the second defendant.
The plaintiffs submitted that Mrs Barnes purchased 10 tickets for a jet boat ride with the second defendant on 6 May 2010, and the contract was complete at that time when the tickets were paid for. At that time, there were no terms and conditions stated and therefore any terms and conditions relied on by the defendants, did not form part of the contract. It was submitted that s 5N of the CLA has no application to the contract.
The ride restrictions contained in the terms and conditions contained the following: "(2) Any passengers who may be pregnant, suffer from back, neck or heart conditions, or previous injuries, are strongly advised not to ride on a Harbour Jet and should consult with the skipper … (3) Passengers board and ride on Harbour Jet at their own risk and in no circumstances other than gross negligence of Harbour Jet staff, proven by a court of law, will Jetboats Australia Pty Limited, its officers, servants or agents be held responsible for any accident, injury, loss or damage to persons or property embarking, travelling or disembarking from Harbour Jet."
It was submitted that these ride restrictions did not amount to a risk warning pursuant to s 5M of the CLA, relying on Vreman v Albury City Council [2011] NSWSC 39.
Alternatively, the plaintiffs submitted that if the relevant clause had any effect at all, it applied only in respect of the second defendant. The plaintiffs allege gross negligence on the part of the second defendant.
It was further submitted that the exclusion term was voided by ss 74, 68 and 68B of the TPA. Upon proper application of those sections, the contracts of each of the plaintiffs implied a warranty that the ride would be conducted with due care and skill.
In respect of the Rohra contract, it was submitted that the contract was entered into on 23 April 2010, with acceptance of the payment through "Scoopon". It was submitted that there were no terms and conditions attached to that contract, therefore s 5N of the CLA has no application.
In respect of the Assumption of risk signature form, it was submitted that each of the plaintiffs understood they were going on a jet boat ride. It was submitted that each of the defendants' employees were unaware that the plaintiffs had purchased tickets for jet boat ride rather than the Extreme II ride. There was therefore no "meeting of minds" in respect of the waiver document. In any event, it was submitted that all of the plaintiffs signed the document before boarding, assuming it was either an attendance check, or an acknowledgement that they had boarded the boat. It was submitted that none of them understood that this document was a document of any legal effect. The document itself did not warn of any risks and does not form part of the contracts referred to above. In any event, it did not limit liability in accordance with the TPA and was effectively a meaningless document.
The plaintiffs submitted that the safety briefing conducted was of a limited nature, warning persons who were pregnant or who had back injuries to not go on the ride. There was a further instruction that the passengers were to hold on and "keep their legs up and a less bumpy ride would occur sitting at the rear of the vessel". They were also informed that there were lifejackets on board. There was no explanation as to the nature of the ride.
The plaintiffs submitted that the court would not find that they were directed to a sign on the upper deck. That sign on its face referred to the Harbour Jet boat ride and not Extreme II. None of the plaintiffs were aware of the presence of the sign on the wharf and all denied that it was mentioned in the briefing. It was submitted that neither the safety briefing nor the conditions on the sign amount to a risk warning, nor do the conditions form part of any contract. Further, if the sign was to form part of the contract, it did not limit liability for personal injury or death as required by s 68B of the TPA. The sign therefore was meaningless and of no legal force.
In respect of the question of "obvious risk" under the CLA, it was submitted that obvious risks include risks that are patent or are a matter of common knowledge, or can include a risk of something occurring even though there is a low probability of such risk occurring, pursuant to s 5F(ii) and (iii) of the CLA.
The plaintiff relied on a number of authorities including Lormine Pty Limited v Xuereb [2006] NSWCA 2000, as authority for the proposition that the court is entitled to determine the character of the activity by reference to the plaintiffs' subjective perception and from the perspective of what the plaintiffs had or had not perceived would be involved in the activity.
In Alameddine v Glenworth Valley Horse Riding Pty Limited, supra, the Court of Appeal emphasised the primary importance of the defendant's website (at [38]), and held, in respect of an activity of quad bike riding at ([49]), that notwithstanding there was an obvious risk incidental in the activity, the risk resulting from an instructor riding faster than was safe for an inexperienced young participant, and who was then give no real choice but to keep up with him, was not a risk inherent or incidental to quad bike riding, as presented to the plaintiff and her family. It was held that to uphold a defence in those circumstances would be inconsistent with the evident policy of s 5L of the CLA, namely: "To preclude a plaintiff suing where (and only where) a plaintiff having been injured as a result of him or her engaging in a recreational activity when the risk material should be reasonably obvious to them."
In this case, the defendants had made a number of representations. On its website, Harbour Jetboats indicated the following: "(i) One hundred per cent safety record - is the jet boat ride safe? Absolutely. (ii) Staff on boats - 15 years experience. One hundred per cent safety record. Safety their number one priority. (iii) Carry safety equipment but yet never have had to use it. (iv) Operate under strict controls by NSW Maritime. No suggestion of wave jumping. (v) They provide harnesses."
It was submitted that, given each of the plaintiffs' understood they were going on a jet boat ride, a reasonable person in their position could not be expected to be aware of the risk involved in a very different sort of ride. When they were notified of that different ride, they were advised that it was an upgrade, not a change in the nature of the ride. Once on board the vessel, they were, on the defendants' case, advised that the ride would involve wave jumping and going at high speed, which, it was submitted, is what jet boats are likely to do in any event. Further, the activity was to take place within the boundaries of Sydney Harbour. It was therefore a fast sight-seeing boat involving wave jumping.
It was submitted that the risk that eventuated here was that the captain of the vessel travelled at a significant speed in circumstances where it was obviously inappropriate to do so, due to the size of the waves, resulting in the vessel likely to have been falling several metres. The risk that materialised was the management of a vessel in a dangerous and reckless manner. For each of the plaintiffs, other than getting wet, no risk was readily identified to them. It was not foreseeable that risks involving significant injuries would eventuate. The plaintiffs' injuries did not therefore result from the materialisation of "obvious risk" of the activity.
The plaintiffs also submitted that whilst they were involved in a recreational activity, they dispute that the ride could be classified as a "dangerous recreational activity". Referring to Lormine Pty Limited, supra, the plaintiffs submitted that the defendants bear the onus of establishing defences under s 5L of the CLA. The question is to be determined objectively and prospectively. The plaintiffs also relied on the judgment of Ipp JA in Falvo v Australian Oz Tag Sports Association [2006] NSWCA 17 at [28] - [31], which informed the test to be applied in respect of the "significant risk of physical harm" and its relationship to the definition of "dangerous recreational activity". Ultimately, it was submitted that the risk of physical harm may not be significant if, despite the potential catastrophic nature of the harm, the risk is very slight (see Campbell v Hay, supra, at [116]). This was very much the case with respect to the activities involved in the Extreme II ride. The defendants had control over determining the speed of the vessel and how to control it. It was a fast and manoeuvrable vessel, and the plaintiffs, it was submitted, were entitled to assume that the defendants would conduct the vessel within a significant margin of safety.
It was submitted that there could not be held to be a significant risk of harm involved. The evidence of Mr Woolrych was that he had been on 200 trips, and that the jet boat's safety record was 100%, other than stubbing toes, that Extreme II was a safe ride, and that the jet boat was the more exciting and more dangerous of the two vessels.
For those reasons, it was submitted, s 5L if the CLA is inapplicable because the injuries did not result from "the materialisation of an obvious risk of a dangerous recreational activity". Similarly, the plaintiffs submit that there was no risk warning given, however, if there was a risk warning, it was necessary for s 5M of the CLA to apply and, that the warning relate to the risk of the activity. Here, the injuries that resulted were not an inherent risk or incidental risk of the activity.
The plaintiff submitted that any attempt to waive liability by the first defendant, relying on the sign and Assumption of risk form must fail. It was submitted that as the plaintiffs denied that they were aware of the nature of the document that they were signing, there was no agreement to a variation in the contract, nor was there a collateral contract that incorporated the terms of the Extreme II Assumption of risk form.
The plaintiffs submitted that there should be no reduction for contributory negligence pursuant to s 5R of the CLA. The test under that section, it was submitted, is "whether a reasonable person in the position of the plaintiff, i.e. having the knowledge of the plaintiff, had or ought to have had, was negligent". The plaintiff relied on the Court of Appeal's decision in Boral Bricks Pty Limited v Cosmidis (No. 2) [2014] NSWCA 139, where the court said at [54]: "The question of a person being guilty of contributory negligence is determined objectively, the question being whether the plaintiff has taken a degree of care for his or her own safety than an ordinary reasonable person would take."
The plaintiff submitted that the defendants' case on contributory negligence relied on a failure by some of the plaintiffs to take precautions against a risk of harm here, by standing up during or whilst the vessel was going over the wave. Only one of the plaintiffs, Mr Adam Barnes, accepts that he stood up, and he suffered a similar type of injury to other plaintiffs who did not stand up. There is no evidence therefore that standing made any difference, or that any of the plaintiffs played any part in the "happening of the event".
In his oral submissions, learned senior counsel for the plaintiffs emphasised that each of the plaintiffs turned up on the day in question for a jet boat ride, only to be taken on a vessel which was a wave-jumping boat. As to the issue of the safety briefing, it was submitted that there seemed to have been a briefing which was not detailed, but in which they were told to "hold on". There seemed to have been a remarkable amount of confusion as to what actually occurred, even Mr Curtis, the defendants' employee, could not remember what had occurred (Ex L). It was submitted that the plaintiffs all set out slightly variable accounts, reflecting different recollections. The general theme was that there was a very limited form of briefing. All of the plaintiffs denied the suggestion that they were pointed to a sign and suggested to go back up to the upper dock to read the conditions of the ride, and then come back and sign the Assumption of risk form. All of the plaintiffs' evidence was consistent to the effect that the document was handed to them and then passed from one to the other, without any explanation as to its content.
In any event, it was submitted that the Assumption of risk form was a meaningless document.
In relation to the TPA count, s 68B applied to the exclusion clause alleged by the defendants.
As to the incident itself, it was submitted that on the balance of probabilities, and having regard to all of the evidence, the waves were in the order of 2 to 2 and a half metres. It was submitted that this is not a dangerous recreational activity because the driver of the vessel had complete control over factors that determined a safe passage for those on board. That included the speed at which the vessel travelled, and the direction it took over waves. It was submitted that the driver's evidence that he went over the particular wave at 10 knots, that the bow of the vessel went up in the air and came down "with a little bit of a bang", is at complete odds with the evidence of Mr Curtis, the deckhand, to the effect that he went over the wave at approximately 27 knots, and each of the plaintiffs gave evidence that the vessel went over the wave at a speed that was very fast. It was submitted that, and having regard to the conditions, the court would find that the vessel was travelling at much greater speed than 10 knots and that the evidence of Mr McMonnies could not be accepted.
It was further submitted that the inconsistencies between the plaintiffs' evidence and their police statement, was understandable, given the difficult exercise in estimating boat speed and wave height. Having regard to all of the evidence however, it was a big wave and Mr McMonnies accepted that the vessel should not have become airborne. He did not even know what the survey requirements for the vessel were, namely, restricted to areas where the waves were not in excess of 1 and half metres. It was submitted that the court was "entitled to rely upon the injuries sustained, as to giving to what each of the plaintiffs has to say about the impact and the nature of the impact, all of which is completely different from what the defendants' witnesses have suggested". Mr Fitness, the expert qualified on behalf of the plaintiffs, should be accepted as to the speed of which the vessel should have travelled.
It was submitted that Derek v Cheung, supra, had no application in the present circumstances. Mr McMonnies had control of the vessel at all times and could react to the conditions.
Further, it was submitted that the defences of contributory negligence had not been made out as far as the allegation of standing up was concerned. Most of the passengers did not stand up. A small number of the Barnes group did stand, but in a limited manner that was consistent with what they had been instructed to do in the safety briefing. Further, the nature of the impact and injuries suffered, means that it may not have made any difference as to the outcome.
In respect of contributory negligence, it was submitted that the onus is on the defendants to establish that the plaintiffs failed to take care for their own safety. Whilst the evidence established some of the passengers may have been standing up, those who were, sustained the same type of injury, namely, compression fractures, as some of those who were sitting down.
With respect to the Barnes' contract, the contract, it was submitted, was concluded on the day the electronic ticket was sent. That included ride restrictions. It was not possible, however, to add additional terms once the contract had been concluded. The words contained in restriction 3, namely, "People riding at their own risk are not liable for anything other than gross negligence …", were classic formulae for words excluded under the TPA.
Similarly, with respect to the Kishore contract, there were no terms and conditions incorporated at the time of contract, and terms could not be incorporated later by way of notice on the wharf.
In respect of the defences pleaded pursuant to s 5L of the CLA, it was submitted that a prospective enquiry had to be made and the test was objective, namely, what a reasonable person would do in the position of the plaintiff. None of the plaintiffs here could be regarded as having any knowledge that there was any inherent risk of dangerous recreational activity for the tour they had purchased. The evidence established that only minor injuries had previously been occasioned, namely, stubbed toes, so there could be no inherent risk established in the activity.
In respect of dangerous recreational activities, the plaintiffs relied on Alameddine v Glenworth, supra, at [32] and following, which also referred to Fallas v Mourlas, supra. It was submitted that the court has to look at the totality of the circumstances, referring to Hay v Campbell, supra. Here, the materialisation of the risk that occurred was the driving of the boat at excessive speed over a very large wave. That it was in contact with the wave and became airborne, was not a risk that was an inherent risk of the activity. It could readily have been avoided and ordinarily would be avoided. It was submitted that the risk may not be significant despite the potentially catastrophic nature of the harm, if the risk is only slight, relying on Lormine v Xuereb, supra, and Falvo v Australian Oz Tag Sports Association, supra. The court must look at the activity as a whole in determining whether it is a dangerous recreational activity. It was submitted that s 5L of the CLA does not apply in this case.

[21]

Relevant provisions of the Civil Liability Act 2002

Part 1A of the CLA contains the following provisions which have bearing on the issues to be determined in this matter: "Division 2 Duty of care 5B General principles (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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. Division 3 Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he, or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. Division 4 Assumption of risk 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligenge, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind or risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 5I No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk. Division 5 Recreational activities 5J Application of Division (1) This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff. (2) This Division does not limit the operation of Division 4 in respect of a recreational activity. 5K Definitions In this Division: dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes: (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation of leisure. 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk. 5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if: (a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent). (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in. (7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person. (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean: (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owed a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12) In this section: incapable person means a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning. parent of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person. 5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.l (2) Nothing in the written law of New South Wales renders such a term os a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplies to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety."

[22]

Findings of Fact

Having regard to the whole of the evidence, I make the following findings of fact on the balance of probabilities: 1. Mr Kishore Rohra purchased four tickets for a harbour jet boat ride through a ticketing service known as "Scoopon" (see Ex C). 2. A booking was made for 1 May 2010 which was cancelled. A further booking was made on 22 May 2010. 3. Mrs Lynette Barnes purchased ten tickets for the Harbour Jet boat ride (Ex A4). At the time of that sale, she was told the ride was "safe", and that passengers were given "harnesses". 4. She booked for 22 May 2010, and on 21 May 2010 was told that the jet boat had broken down and another boat would be supplied. 5. On 22 May 2010 each of the six plaintiffs, along with others, attended the Darling Harbour wharf where they were provided with spray jackets and had their names checked on a ticketing list. 6. The group was then taken to a lower dock or pontoon, where the vessel "Extreme II" was moored. 7. Whilst they were standing on the pontoon, they were given a briefing by Mr Woolrych. He was standing on the seats in the boat, and told them: 1. the specifications of the boat, and, 2. that it had a top speed of 52 knots, 3. that they could not ride on the boat if they were pregnant or had any type of back injuries, 4. that there was a form that needed to be signed. 1. Mr Woolrych then gave a demonstration as to how the passengers were to straddle the seat, to keep two hands on the handle bars, and, in the event that the boat hit rough water, they were to "roll your pelvis forward and use your thighs to support yourself". 2. Mr Woolrych also told the passengers that those who wanted a less bumpy ride should take a seat at the back of the boat. 3. I find that during the briefing, Mr Woolrych did not gesture to the sign on the upper wharf containing the Terms and Conditions and did not tell the group that they should read that sign, which was on the upper deck, before signing the Assumption of Risk form. 4. I find that in the circumstances in which they came to be on board Extreme II, none of the plaintiffs had a clear appreciation or understanding of the type of tour they were going on, and the difference between that tour and the jet boat ride they had purchased, or had purchased for them. 5. At a point off Obelisk Bay, opposite South Head, I find the vessel encountered a set of waves as it headed in a generally north-easterly direction towards the heads. 6. The speed restriction in that part of the harbour was 30 knots and I find that the vessel was travelling at and just below that speed when it encountered the set of waves. 7. I accept the evidence of Mr Fitness that it is notoriously difficult for persons who are inexperienced on boats and on the seas generally, to estimate wave height and boat speed with any accuracy. 8. I find that Mr Adam Barnes, and Mr Brendan Barnes did have some experience, both on boats and with surfing. I find their evidence was reliable as to the conditions prevailing at the time of the incident, and the course of travel of the vessel. 9. I also accept the evidence of Mr Ben Curtis, as being reliable as to the speed and course of travel of the vessel. 10. On the balance of probabilities, I find that the vessel accelerated over the first wave in the set, to a speed approximating 60 kilometres per hour or approximately 32 knots. 11. I find the vessel then approached a larger wave, between 2 and 2 and a half metres, and again, the master accelerated the vessel into the wave at a speed greater than the previous wave. 12. The vessel ascended the wave at an angle of 45 degrees. 13. I find that the vessel became airborne after passing through the crest of this wave, given its speed, weight and the angle of ascent. 14. I find the vessel descended to the trough behind the wave, and impacted with the water's surface with significant force. 15. I find that whilst the vessel's survey did not allow for its operation in waves beyond 1 and a half metres in height, it was not being operated outside its survey on this occasion. 16. I find on the evidence before me that the only passengers who were standing as the vessel passed over the wave, were Adam Barnes, who suffered an injury to his spine, and Craig Barnes, who suffered no injury.
In so finding, I reject the evidence of Mr McMonnies, that he steered the vessel at 10 knots over the wave, and the evidence of both himself and Mr Curtis, that it did not become airborne. The weight of evidence is heavily against their evidence for which they had a clear, and exculpatory, motive (see Nominal Defendant v Smith [2015] NSWCA 339 at [91] to [94]). Indeed, counsel for the defendant characterised the tour as "an adventure ride", and led evidence from Mr Woolrych that the vessel became airborne, and that passengers were told that during the safety briefing (see [146] above).

[23]

Are the defendants absolved from their duty of care by any provision of the CLA?

For the purpose of determining breach of the relevant duty of care under ss 5B and 5C of the CLA, and for the purpose of determining the application of ss 5G, 5H, 5I and 5L, it is necessary to first determine what was the relevant risk of harm. The defendants submitted that the risk of harm here was the risk that the plaintiffs, "whilst remaining seated or thereabouts on the seat, on the boat, after it went over a wave, and they were jolted because the boat came down heavily, that must be there case". Counsel went on to submit that that was an obvious risk.
I do not accept that submission. The relevant risk of harm here was that each of the plaintiffs would suffer serious injury by virtue of the nature of the activity, namely, by going on a powerful speed boat which was designed to travel over waves at high speeds. The question is whether that would have been an obvious risk to a reasonable person in the position of each plaintiff when they boarded the vessel. I find that it would not have been obvious for the following reasons: 1. Both Mr Rohra and Mrs Barnes had purchased tickets to go on a jet boat ride. Mr Rohra had looked at the Scoopon website, which included the description of the vessel going at "heart stopping speeds", and doing manoeuvres in which he would be thrown from side to side. He expected to be moved around and bumped, but it was his expectation, based on previous experience, that there was a cushion seat and harness. 2. Mrs Lynette Barnes actually made enquiries as to the safety of the ride and was assured that it was safe and that the passengers would have harnesses. 3. Mr Rohra agreed that there could be a risk of some kind of injury, but not an extreme or serious injury. 4. The defendants made no attempt to differentiate the activities involved for passengers on the Extreme II when it replaced the broken down jet boat.
Also relevant to this question is that the content on the Harbour Jetboats' website emphasising the absolute safety involved in the activity (see [225] above). This type of contact was held to be of "primary importance" in determining the question of "obvious risk" in Alameddine v Glenworth Valley Horse Riding Pty Limited, supra, (see [38]). Further, evidence called by the defendants proved that it was a generally safe activity, with only very minor injuries ever having been suffered prior to this incident. Nor could it be stated that the relevant risk here was patent, or a matter of common knowledge.
I therefore find that the relevant risk was not an obvious risk within the meaning of s 5F of the CLA, and therefore ss 5G and 5H have no application.
Nor am I satisfied that s 5I of the CLA applies here. Pursuant to s 5I(2), an inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. That is not the case here, where the exercise of reasonable care and skill was the content of the duty of care owed by the defendants to the plaintiffs. Paul v Cooke [2013] NSWCA 311, informs the application s 5I in a medical negligence case, for the reasons set out by Leeming JA at [70] to [79]. This is a case where the negligence, if proved, of the defendant, creates the occasion for the materialisation of the risk. For that reason, s 5I does not apply.
Section 5L of the CLA will only absolve the defendants from liability in negligence for the harm suffered by the plaintiffs, if that harm was suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiffs. As set out above, the risk of harm here was not an obvious risk. The defendants represented the activity to be safe, conducted a "safety briefing" to ensure that it was safe, and the evidence established that prior to this incident, only minor injuries had been sustained.
In Alameddine v Glenworth Valley Horse Riding Pty Limited, supra, McFarlane JA said at [35]: "35 In Fallas v Mourlas [2006] NSWCA, 65 NSWLR 418, Ipp JA emphasised that 'whether a recreational activity may be dangerous will often depend on the particular circumstances' (at [37]) and said: 36 Factors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm (and the converse may be the case). A cliff walk in day time may be safe, but at night it may be dangerous. Walking along the edge of a cliff may be dangerous at any time, but walking on a country road not. Water skiing may not be dangerous for a competent skier, but the same may not be said for a novice. A recreational activity may be dangerous for a child but not for an adult. Participating in a recreational activity might be safe for a sober person, but dangerous for one who is intoxicated. Fencing with appropriate protective equipment might not be dangerous, but the same could not be said for fencing without protection. Sailing in calm seas for a short period might be safe, but sailing in a raging gale might be classified as dangerous." 36 These observations accord with Tobias JA's approach in the same case, who had regard to the 'totality of the circumstances surrounding the activity in which the plaintiff was engaged (at [96]), and with that of this Court in Campbell v Hay [2014] NSWCA 129 at [113], per Ward JA (with whom Meagher and Barrett JJA agreed)."
In Lormine Pty Limited v Xuereb, supra, a dolphin-watching cruise was held not to be a dangerous recreational activity. The plaintiff in that case had been injured when the vessel was hit by a rogue wave. It was held that the risk was not obvious, and not inherent in the sense that it was avoidable by the exercise of reasonable care and skill. In fact, it was the want of care and skill that had caused the injuries.
It is clear that this was a recreational activity. It is one that is advertised as a popular tourist activity on Sydney Harbour. However, s 5K defines "dangerous recreational activity" as meaning a recreational activity that involves a significant risk of physical harm. The defendants' website, as outlined above, would disavow such a finding. Rather, it emphasised that the activity was "absolutely safe". So too, did the evidence called by the defendants establish that "over hundreds of cruises nothing more than minor injuries had been suffered". As stated by Ipp JA in Falvo v Australian Oztag, supra, a recreational activity could not be regarded as dangerous if there is no more than a significant risk of an insignificant injury (at [30]). Having regard to all of the evidence, as I must do, I find that this was not a dangerous recreational activity so as to attract the application of s 5L of the CLA. In my view, this was not similar to the type of activity involved in Campbell v Hay, supra, where the court held that the appellants activity in undertaking instruction in a single-engine light aircraft, was a "dangerous recreational activity", and that his injury resulted from the materialisation of an obvious risk of that activity. That was not the case here, where the plaintiffs took a passive role in the "tour", and relied on the skill and expertise of the master of the vessel to provide the "thrills" involved, in line with the defendants' duty of care.
The application of ss 5M and 5N of the CLA, involves consideration of whether there was a "risk warning", or a waiver of a contractual duty of care in respect of recreational activities. As outlined above, the defendants concede that if the plaintiffs' claim pursuant to s 74 of the TPA succeeds, then, pursuant to the decision of the Court of Appeal in Motorcycling Events Group Australia Pty Ltd v Kelly, supra, then ss 5M and 5N would not apply.
The defendants have also conceded that the resolution of the plaintiffs' claims pursuant to s 74 of the TPA, subject to the defences raised under s 68B thereof, should be determined in the same way as the plaintiffs' claims in negligence. I will therefore defer the question of the application of ss 5M and 5N of the CLA, subject to the determination of breach of duty of care, causation, and the plaintiffs' claims under the TPA.

[24]

Did the defendants breach their duty of care?

The question of breach of the defendants' duty of care must be determined prospectively pursuant to the principles in ss 5B and 5C of the CLA. What is in issue in the circumstances of this case is whether the master of the vessel, Mr McMonnies, was negligent in the driving, manner or control of the vessel in the conditions that prevailed, by failing to take precautions against the risk of harm as identified above, namely, the risk to the passengers of sustaining serious injury. The precautions advocated by Mr Fitness on behalf of the plaintiffs, were that he should have approached the wave in question at a speed less than 10 knots, and at a safer angle, namely, for the bow to pass over the wave.
Pursuant to s 5B(2), in determining whether a reasonable person would have taken those precautions, the court is to consider the matters set out in s 5B(2)(a), (b) and (c). I find that there was, in all the circumstances, a high probability that harm would occur if care was not taken, given the passengers were not restrained on the vessel. Further, the likely seriousness of the harm was also quite high, in that serious injury could occur to passengers if reasonable care was not taken. Finally, the burden of taking those precautions was very low.
The risk of harm as defined above, was therefore foreseeable and in my view, was not insignificant. In the circumstances that confronted him, a reasonable person in the position of Mr McMonnies, would have taken those precautions. I therefore find he breached his duty of care to the plaintiffs.
The test for factual causation under s 5D of the CLA, is whether, but for the breach of duty of care of the defendants, (in this case Mr McMonnies), injury to the plaintiffs would have occurred. I find that the breach was a necessary condition of the occurrence and therefore factual causation is made out. Similarly, it is appropriate for the scope of the defendants' liability to extend to the harm caused by the defendants' negligence, and learned senior counsel for the defendant conceded as much. Causation is therefore established.
In coming to those findings, I reject the submissions made on behalf of the defendants as to breach and causation. This is not a matter analogous to that in Derek v Cheung, supra, nor is it incumbent upon the court to determine what was a safe speed for the vessel to have been travelling at. Rather, having regard to the findings of fact that I have made, the defendants are vicariously liable for Mr McMonnies' negligence in driving the vessel at an excessive speed in the circumstances, and in a manner that caused it to become airborne and collide with a severe and heavy impact with the water surface. It is irrelevant that there was no collision with another vessel. Further, the untested evidence of Craig Barnes' statement (Ex 7) does not give rise to any inference pursuant to the principle in Jones v Dunkel, supra, which would affect these findings.

[25]

The relevant provisions of the Trade Practices Act 1974

The plaintiffs sue for a breach of an implied contractual warranty provided by s 74(1) of the TPA, which provides as follows: "74 Warranties in relation to supply of services (1) In every contract for the supply by a corporation in the course of a business of services to a consumer, there is an implied warranty that the services will be rendered with due care and skill, and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied."
Section 74 is within Pt 5, Div 2 of the TPA. Section 68 is in the same division and deals with contractual terms, which would include the exclusion clause relied on by the defendants. Section 68 provides as follows: "68 Application of provisions not to be excluded or modified (1) Any term of a contract … that purports to exclude, restrict or modify, has the effect of excluding, restricting or modifying; (a) the application of all or any of the provisions of this Division; (b) the exercise of a right conferred by such a provision; (c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or (d) the application of s 75A; is void. (2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of s 75A unless the term does not expressly or is inconsistent with that provision or section."
Section 68B provides as follows: "68B Limitation of liability in relation to supply of recreational services (1) A term of a contract for supply by a corporation of recreational services is not void under s 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying; (a) the application of s 74 to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by s 74 in relation to the supply of the recreational services under the contracts; or (c) Any liability of the corporation for a breach of warranty implied by s 74 in relation to the supply of recreational services under the contract; So long as: (d) the exclusion, restriction or modification is restricted to liability for death or personal injury; and (e) the contract was entered into after the commencement of this section. Section 68B commenced on 19 December 2002.

[26]

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

The two contracts here, were properly characterised by learned senior counsel for the plaintiffs as being two ticketing contracts. The first was between Mrs Lynette Barnes and the second defendant, on behalf of the plaintiffs, Ms Vanessa Pillinger, Mr Adam Barnes, Mrs Marta Barnes and Mr Brendan Barnes. The second ticketing contract was between Mr Kishore Rohra and the second defendant, on behalf of himself, his wife Mrs Harpreet Kaur, Mrs Shivani Talwar and Mr Avikesh Avikesh.
In respect of the first ticketing contract, Mrs Barnes purchased 10 tickets for a jet boat ride with the second defendant on 6 May 2010. I accept the plaintiff's submission that the contract was complete at the time when the tickets were paid for. At that time, there were terms and conditions stated as follows: "RIDE RESTRICTIONS 1. Child weights are for children 14 years and younger and at least 130cm tall. Children under 130 cm are not permitted to ride for safety reasons. It is not recommended that children under 12 years old do not travel on the Middle Harbour Adventure. Children under 12 years old must be accompanied by an adult. 2. Any passengers who may be pregnant, suffer from back, neck or heart conditions, or previous injuries, are strongly advised not to ride on Harbour Jet and should consult with the Skipper before boarding Harbour Jet. 3. Passengers board and ride on the Harbour Jet vessels at their own risk and in no circumstance other than the gross negligence of Harbour Jet staff as proven by a court of law, will Jet Boats Australia Pty Limited, its officers, servants, or agents be held responsible for any accident, injury, loss or damage to person or property whilst embarking, travelling or disembarking from Harbour Jet. 4. Jet Boats Australia Pty Limited, trading as Harbour Jet, reserves the right to add, withdraw, substitute and/or vary advertised routes, vessels, prices and departure times and may refuse any person, for whatever reason, participation in the ride, in its absolute discretion, whether or not they have previously purchased a ticket. 5. All information is correct at the time of printing and subject to change without notice. 6. Passengers must check in at Convention Jetty, Darling Harbour, a minimum of 20 minutes prior to departure time or risk forfeiting tickets."
The second contract concerning Mr Rohra, was entered into on 23 April 2010 with acceptance of his payment through the ticketing agency "Scoopon". There were no terms and conditions attached to that contract.
The Assumption of risk signature form (Ex B), contained the following acknowledgement: "I acknowledge that I have read the Assumption of Risk form and that it has been explained to me. I fully understand its terms and that I have given up substantial rights by signing it. I signed this document freely and voluntarily without any inducement made to me and intend my signature to be a complete and unconditional release of all liability to the greatest extent allowed by law."
At the bottom of the form, the following words appeared: "The Skipper's signature above confirms all customers/passengers have read and been informed of the conditions of riding and have signed this Assumption of Risk form."
Each of the plaintiffs acknowledged their signature on the form. All said they believed they were signing the form as a testament to their attendance. The form on its terms, acknowledged only the reading of that form. It set out none of the terms and conditions relied on by the defendants to absolve itself from liability in this case. As set out in my findings of fact above, the plaintiffs were not referred, during the safety briefing, back to the terms and conditions on the upper deck, and they not told that they should read that sign before signing the Assumption of risk form. The terms and conditions set out on that noticeboard, therefore, do not form part of either contract of ticketing, by which the plaintiffs came to board the vessel.
Section 74(1) of the TPA does, however, apply to those ticketing contracts, to imply a warranty that the services would be rendered with due care and skill. To the extent that either contract included a term which had the effect of excluding, restricting or modifying that implied warranty, that term would be void pursuant to s 68 of the TPA, by virtue of s 68(1)(c).
The defendants rely on s 68B for the purpose of establishing that the relevant terms and conditions which exclude liability are not void, pursuant to s 68. Section 68B provides that the terms and conditions are not void, by virtue of the application of s 74 to the supply of recreational services under the relevant contract, "so long as" the exclusion, restriction or modification under those terms and conditions is limited to liability "for death or personal injury", pursuant to s 68B(1)(d).
Those sections, and their impact on ss 5M and 5N of the CLA, were considered in Motorcycling Events Group Australia Pty Ltd v Kelly, supra. The Court of Appeal held that s 5M is directed to negating any duty of care, rather than limiting or excluding liability for a breach of duty. That reflects the contents of its subject matter, namely, where an anterior risk warning has been given to a plaintiff to take care in respect of a risk involved in a recreational activity. At [88], Gleeson JA said: "Such a risk warning has the effect of negating any duty of care owed to the plaintiff in respect of the risk the subject of that warning."
The Court held that if an exclusion clause goes beyond exclusion of liability for death or personal injury, then s 68B does not apply because of the proviso in s 68B(1)(d), limiting the effect of the section to liability for death or personal injury (see Basten JA at [21], Meagher JA at [41]) Here, the exclusion clause relied on by the defendants, whether it be the "Ride Restrictions" set out above (which refers to "any accident, injury, loss or damage to the personal property whilst embarking, travelling or disembarking …"), or, the terms and conditions set out on the notice board (see Ex 1 - photo 6), goes beyond the terms of s 68B which therefore does not apply so as to enable the defendants to avoid liability.
The Court also held that s 5N applied to a contractual duty, but was inconsistent with a Commonwealth law, and therefore did not apply to absolve the defendant from liability.
Having regard to my findings in relation to the terms of the contract, and the application of s 74 of the TPA, the defendants conceded that their defences pleaded pursuant to ss 5M and 5N of the CLA, could not be made out, and the matter then had to be determined on the basis of whether the master of the vessel was negligent (see [205] above). In accordance with my reasons set out above, the master of the vessel was negligent, and the defendants were also in breach of their warranty, implied by s 74 of the TPA, that the service would be rendered with due care and skill. In those circumstances, there is no utility in determining whether there was any other breach of contract giving rise to a claim for damages, and neither party made any submission to that effect.

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