14 The defendants pleaded that the form released them from liability.
15 The plaintiff gave evidence denying that she had read the document before signing it and stating that, because of what Mr Stinson told her, she believed it to be in respect of passenger numbers. This evidence was apparently accepted by the trial judge (J29). Her Honour also found that the defendant "did not discharge its obligation to do what was reasonably sufficient to give the plaintiff notice of the existence or content of the conditions" (J29). She also found that the waiver was not properly explained to the plaintiff (J30).
16 The appellants submit that this reasoning betrays the error exposed by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 where the Court pointed out that a signed contract does not require proof that its particular terms were brought to the notice of the party sought to be bound.
17 Some uncertainty surrounds the issues that were fought at trial in relation to the document that the plaintiff signed. There is, however, evidence that raises doubt as to whether the document was signed on the basis of affecting the legal relations of the parties (ie was it truly contractual?) and/or whether its terms were misrepresented to the plaintiff. The statements in the judgment as to what Mr Stinson said and what the plaintiff believed about the document suggests findings of material misrepresentation, although they are not expressed in such terms. The appellants invite this Court to decide the contract issue itself, according to the Toll principles.
18 During argument, the Court also raised the proper interpretation of the waiver clause, pointing to the references in clauses 4 and 5 to "SCUBA diving and/or snorkelling activities" and to the "Foster Fishermen's Wharf Dive Centre", a body whose relationship with the shipowner was assumed but not proved at trial. The heading as to "Express assumption of the risks associated with diving and related activities" was also suggestive of a narrower reading of the waiver and release clauses, even though the sentence following that heading and clause 2 embraced "sightseeing". Senior counsel for the appellants indicated that it was clause 4 that was relied upon. He submitted that the scope of the clause was not to be read down by reference to SCUBA diving and snorkelling. Alternatively, it was submitted that the plaintiff had used "facilities" and "equipment" of the Dive Centre when she boarded the vessel itself.
19 In this Court, the plaintiff invoked the principles as to strict construction of ambiguous exemption clauses as well as the contra proferentem rule.
20 I am quite unpersuaded that the waiver/release defence succeeds. The primary contract that was made either the day before the trip or when the tickets were paid for did not contain the terms of the form, nor did it give notice that there were express terms to be incorporated. The oral communications that led the plaintiff (fortuitously) to be the signing party for her family group did not convey that the document was contractual in intent or was to form a variation of an existing contract. Indeed, any contractual impact was misrepresented by the statement about head count.
21 In any event, clause 4 is so ambiguous both in its overall context and standing alone that I am unable to construe it as a release of claims for injury stemming from sightseeing. Its preamble confines its scope to SCUBA diving and snorkelling and the references to "use" of "facilities" and "equipment" are well capable of being read as references to facilities and equipment in connection with those activities.
22 Unfortunately for the plaintiff she signed the form, but fortunately for her she did not participate in any SCUBA diving or snorkelling activities.
23 The contractual defence therefore fails.
Findings of negligence
24 There was a miscellany of factual challenges to the finding that the captain was negligent in permitting passengers to sit at the bow when taking the vessel into or near the wave zone, in not seeing the large wave in time, and in not turning the boat into the wave quickly enough.
25 In large part, the appellants sought to challenge findings of fact that were well open on the evidence and supported by the testimony of several of the passengers (the plaintiff, her husband (J17-18), Mr Olsson (J12, 13), Mrs Olsson(J14-15) and Mr Boys (J21)). I agree with the trial judge's conclusions.
26 There were difficulties with the captain's evidence. He was contradicted by the passengers as regards him rushing to the wheel in a last-minute attempt to get the vessel pointing into the wave. His evidence was also found to be inconsistent with the passengers' evidence in stating that the wave was only one metre high (J23), itself a proposition hard to fit with the appellants' general case that the wave was freakish and entirely unexpected in its impact.
27 The appellants complain in their written submissions that the judge erred in preferring the evidence of the plaintiff's expert, Mr Burge, over that of the appellants' expert, Mr Duncum. It is unclear whether the appellants press the ground of appeal that contends that Mr Burge's evidence was inadmissible. At the end of the day nothing turns on this, because the particular matter referred to by the judge on which she accepted and preferred Mr Burge's evidence was "the need to keep a proper lookout whilst close to the vicinity of the wave zone". This is really commonsense given the appellants' case that wave action was foreseeable. Reference to this item of expert testimony did not occasion any substantial miscarriage.
Statutory issues
28 The appellants pleaded that participation in the Dolphin Watch Cruise was a dangerous recreational activity engaged in by the plaintiff and that the harm she suffered was a result of the materialisation of an obvious risk of that activity (Civil Liability 2002, ss5K, 5L). Section 5I of the Act was also invoked in that the wave was said to be an inherent risk that materialised.
29 Other statutory defences relating to the absence of duty of care because of risk warnings were pleaded, but are no longer pressed.
30 Judge Ashford characterised the activity in which the plaintiff was engaged as that of dolphin watching and held that this was not a dangerous recreational activity. Her Honour said that the plaintiff:
... was travelling on a licensed dolphin watch cruise under the hand of a master with the appropriate coxswain's certificate.... I do not believe any warning in relation to that activity was given to the plaintiff at the time of setting out on that cruise. The activity at that time was sitting on the vessel watching dolphins, a pleasant recreation. She and other members of the party had been invited by the defendant to sit on the bow to watch this activity. She had no intention of engaging in swimming with the dolphins or of diving.
31 The principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" (ie a recreational activity that involves a significant risk of physical harm) are discussed in Falvo v Australia Oztag Sports Association [2006] NSWCA 17 and Fallas v Mourlas [2006] NSWCA 32. The defendant bears the burden of proof in establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself (see Fallas at [38]-[50], [92]). Accordingly, it is irrelevant for the appellants to rely upon evidence from the plaintiff about the risks of crossing the English Channel.
32 The first appellant's brochure (extracted above) was available by way of admission as a categorisation of the gentle activity that the plaintiff and her children were being invited to engage in. There was nothing to suggest to the reasonable reader that the particular vessel would go so close to the wave zone or generally into conditions where getting swamped was one of the expected thrills of the cruise. The plaintiff said that she did not even expect to get wet when she went up to the bow.
33 Section 5L applies whether or not the plaintiff was aware of the risk (see s 5L(2)). However, I do not accept the appellants' submission that the trial judge determined the character of the activity by reference to the plaintiff's subjective perception. Her Honour was entitled to assess the matter from the perspective of what the appellants had or had not represented would be involved.
34 It is unnecessary to consider whether an obvious risk of the activity materialised.
35 There is even less scope for the application of s5I which provides:
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 or a risk.
36 The appellants did not establish that the harm suffered by the plaintiff was a result of the materialisation of an inherent risk, in the statutory sense of being unavoidable by the exercise of reasonable care and skill. On the contrary, it was established by the plaintiff that want of reasonable care and skill caused the injuries.
37 The statutory defences were properly rejected.
Damages
38 The trial judge awarded a verdict of $171,548 made up as follows:
non-economic loss (30% of a most extreme case) $92,000
past "wage loss" $28,800
future loss of earning capacity $32,028
past out of pocket expenses for treatment (agreed) $8,720
future medical and medication $10,000