McDevitt v Irwin [2005] ACTSC 13 (25 February 2005)

Last Updated: 8 March 2005

CARLY MCDEVITT v JAMES IRWIN

[2005] ACTSC 13 (25 February 2005)

NEGLIGENCE - personal injury - water-skier - fall - alleged negligence of driver of towing boat - no issue of principle

DAMAGES - personal injury - hyperextension injury to back - depression - no issue of principle

Rootes v Shelton (1967) 116 CLR 383

Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460

No. SC 599 of 2002

Judge: Master Harper

Supreme Court of the ACT

Date: 25 February 2005

IN THE SUPREME COURT OF THE )

) No. SC 599 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CARLY MCDEVITT

Plaintiff

AND: JAMES IRWIN

Defendant

ORDER

Judge: Master Harper

Date: 25 February 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the defendant.

1. The plaintiff in this action is an accountant by profession. She was born on 31 January 1977, and is now twenty-eight. She claims damages for personal injury caused when she fell while water-skiing on the Molonglo River between Fyshwick and Pialligo on 9 February 2001, when she was twenty-four years old. The defendant was at the time of her fall the driver of the towing boat, and also one of the three joint owners. The case pleaded against the defendant is that the defendant towed the plaintiff into the wake of an oncoming boat, causing her to be thrown from her ski into the water. She suffered a hyper-extension injury to the spine.

2. The plaintiff is a bachelor of commerce in banking and finance, and also has a graduate diploma in professional accountancy. At the time of the accident she was employed by an accounting firm in Belconnen. She was subsequently made redundant, and at the time of the hearing had applied for registration as a tax agent with a view to conducting her own practice.

Liability - the plaintiff's case

3. The plaintiff's evidence was that on the day of her fall, she was telephoned by the defendant and invited to come water-skiing after work. She accepted the invitation, and arrived at the launch area about 5.00 pm. The defendant and the other two joint owners of the boat were out on a ski run when she got there. She waited until they came back, and went out on one of the next runs.

4. Her evidence was that she had skied about five or six times previously. She had skied once when she was ten years old, but not again until 1997 when she went skiing with a friend from university at Lake Burrinjuck. He recollection was that she had skied with the defendant and her friends about three times previously, including one occasion on the Molonglo River. The three owners of the boat were the defendant James Irwin, Vivan Sykes and Jerome Nash.

5. When it was her turn to ski, she put on a borrowed buoyancy wetsuit. The plaintiff used a single ski, and said that she usually skied on one ski. The defendant was driving the boat and Vivan Sykes was observer. The driver's seat faced forward and the observer's seat to the rear, so that he could watch the skier, warn of any obstacles and pass any signal from the driver to the skier and from the skier to the driver. There are a number of conventional hand signals which are known and used by drivers, skiers and observers. These include signals from the skier asking that the boat speed be increased or reduced and from the observer to the skier passing on the driver's intention to speed up or slow down, or to turn the boat around. The rules of the waterways require boats to keep to the right when passing oncoming boats and generally to keep to the right, so that a turn to travel in the opposite direction would be a left U-turn. There were other boats on the river on the afternoon of the plaintiff's fall.

6. When the plaintiff got her footing, she crossed the wake of the towing boat from side to side a couple of times. They rounded a bend and moved into a narrow part of the river. She estimated that it was about 50 metres wide. She did not take much notice of what she was doing until she saw a boat coming in the opposite direction towards them. She realised that she was on the left side of the port wake of the towing boat and thought that she should get back between the wakes because this would be safer in turbulence. She began to steer back towards the wake to cross it, which she said she could normally do without a problem. By the time she made it to the wake, the other boat had passed, and its wake met the wake from the defendant's boat, causing increased turbulence. The plaintiff said that this caused her to lose control and she was not able to get over the wake. The turbulence washed over the front of her ski, causing the ski "to pretty much stop dead". She fell forward, head and shoulders into the water, and her legs and back extended. He immediate sensation was of paralysis of the entire body. For a few moments she could not move her arms or legs. After a short time she was able to wiggle her hands and feet. The defendant's boat came towards her. Normally she would swim over to the boat, but she was unable to manage this, and the boat went around again and came back closer to her. The driver and the observer helped pull her into the boat and lay her across the inboard engine for a minute or so until she was able to sit in the observer's seat. She said that she told the defendant and the observer that she had hurt her back and was not able to ski. The observer, Vivan Sykes, put her ski on and skied back to the shore. The plaintiff got out of the boat and stood with other people for a time while the boat went out on another run. She could not remember who went out but said that it was customary for driver, observer and skier to rotate roles. She did a bit of stretching and made sure she could move. After the boat got back from the next run, she told them she was going home, and went to her car and left.

7. The plaintiff was extensively cross-examined about the circumstances of her fall, and about her prior water-skiing experience. She was unable to recall anything about the boat which passed in the opposite direction except that it was a water-skiing boat. She had no idea of its speed. She agreed that she saw the boat approaching, and knew that she should get back inside the wake of her own boat. She had no idea of the length of a ski run on the Molonglo River. She disagreed with the proposition that the boat was going back to the ramp at the time of the fall. She was unsure how far behind the towing boat she was, that is to say she was not sure of the length of the tow rope.

8. Apart from the single experience at ten years of age, the plaintiff had been introduced to water-skiing at Lake Burrinjuck in 1997 by some friends from university. She started skiing on two skis. She skied once in 1998 with some friends on the Hawkesbury River, and on two or three other occasions between 1998 and 2001 with the defendant and his group of friends. She agreed that a beginner uses two skis, and graduates after a time to one ski. She said that she had skied twice with the defendant and his friends at Burrinjuck, and once before at the Molonglo River. On each occasion, she had a number of runs. She agreed that it was possible she might have skied on more occasions. She recalled twice skiing behind a boat called Desperado, owned by Vince Pendergast, at Burrinjuck. She might also have skied behind Mr Pendergast's boat on the Molonglo River. She had once, prior to the day of the fall, skied in tandem with another skier, something which involved a greater degree of difficulty that skiing alone. She agreed that a skier moves around behind the boat and crosses the wake to provide some variation and excitement in the ride, and she agreed that with greater experience, one was likely to experiment more with crossing the wake and other manoeuvres. It was put to her that it would have been common at Burrinjuck to encounter other boats towing skiers in the opposite direction. She did not recall this specifically, but felt sure that she had, though she said that Burrinjuck was much wider and boats were unlikely to pass as close to each other as on the Molonglo River. Passing other boats in that way was something one would expect when water-skiing on the Molonglo.

Liability - the defendant's case

9. The defendant is an information technology administrator employed by the Australian National University. He bought the boat jointly with Mr Sykes and Mr Nash on 1 December 2000. He had known the plaintiff since the mid-1990s when he met her through playing volleyball in a social competition. He first saw the plaintiff water-skiing at Burrinjuck during the summer of 1997-98 behind Mr Pendergast's boat, Desperado. He saw her ski on at least two and perhaps three days at Burrinjuck, and recalled that she skied on one ski. He had also seen her skiing on the Molonglo River on five or six days prior to the day of her fall. He explained that there was a designated portion of the Molonglo River for water-skiing, and that a maximum of ten boats were permitted on the river at a time. A standard ski run on the river would cover two to three kilometres and take about ten minutes or a little less.

10. On the day of the plaintiff's fall, the defendant was the driver of the boat with Mr Sykes acting as observer. It was the driver's responsibility to point out any obstacles or oncoming boats, and to advise his intention of turning the boat around. The observer's role was to convey information from the driver to the skier and vice versa, and also to keep an eye generally on the skier. The driver and observer were seated next to each other, though facing in opposite directions, and were able to speak to each other above the engine noise.

11. The defendant's evidence was that the plaintiff's fall happened towards the end of her run, when the boat was returning to the launch area. He thought that the river was about eighty to one hundred metres wide at the point where she fell. His evidence was that he did not observe any other boat in the vicinity immediately before the plaintiff fell. The first he knew about the fall was when the observer said something to him. He turned and saw the last part of the plaintiff's fall. He then slowed and turned, and went back to see whether the plaintiff was all right. She said that she felt she might have hurt her back. His recollection was that he and Mr Sykes tried to get the plaintiff into the boat, or at least offered to do so, but the plaintiff said that she would ski the short distance back. He said that she skied back, got out of the water and may have chatted for a few minutes before going home.

12. Asked whether any instruction was relayed to him from the plaintiff to slow down, he said that he could not remember that detail. During the summer season he and his friends skied on the Molonglo River up to three times a week. It was a common occurrence for boats towing skiers to pass in opposite directions, and would have happened on each occasion that they skied. He confirmed that the passing of two boats causes their wakes to meet, creating turbulence, and that this is a commonly encountered situation when water-skiing on the Molonglo River. He estimated the speed of his boat at the time of the plaintiff's fall at between forty and forty-five kilometres an hour. He was keeping a proper lookout and had the boat under proper control at all times, and the speed was not excessive for the circumstances. His opinion was that the plaintiff was a reasonably competent water-skier.

13. His recollection was that there were no more than three other boats on the river on that afternoon. The boat had had perhaps three runs before the plaintiff's run, and had a few more runs after she left.

14. He agreed in cross-examination that he had had completed an insurance claim form in December 2001 in which he had estimated the speed of the boat as fifty-five kilometres per hour. However, the plaintiff did not complain that she had been towed too fast prior to her fall, and I do not see this discrepancy between the defendant's oral evidence and the claim form as of much significance.

15. The defendant recalled passing a boat going in the opposite direction at one point during the second half of the run, as the boat was returning to the launching area. He said that he signalled to the plaintiff that the boat was approaching. Because he was facing forward, he was unaware whether or not she saw the signal, but he said that he generally left his arm out until the boats had passed, by which time the skier would have seen the boat herself.

16. The defendant also agreed that whilst his oral evidence was that the plaintiff's fall happened between 5.00 and 5.30 pm, in the insurance claim for he had stated the time of the accident as 4.00 pm. He had agreed in answers to interrogatories that the time of the fall was between 5.00 and 6.00 pm. Again, it does not seem to me that these differences are of any significance, and I do not regard them as adversely affecting the defendant's credibility.

17. The defendant's experience, which he regarded as according with basic physics, was that the wakes of two passing boats would meet after the boats had passed and approximately when the towed skiers behind each boat were level with each other.

18. The observer, Mr Sykes, recalled meeting the plaintiff about three years before the accident, water-skiing on the Molonglo River behind Mr Pendergast's boat. He recalled the plaintiff being on one ski, and thought that he had seen her water-skiing on the Molonglo River on sixteen separate days prior to the day of the fall, most of those occasions being during the 1998-99 season. He had a vague recollection of having seen the plaintiff skiing at Lake Burrinjuck prior to the accident. He saw the plaintiff fall, as she was crossing the wake, and told the defendant, who turned around to go back and get her. He did not recall the plaintiff giving him any signal to go faster or slower. He had no recollection of any other boat passing the boat immediately before the fall. He could not remember how the plaintiff got back to shore, or whether she got into the boat after the fall. He assessed her as a fairly good water-skier, six or seven on a scale out of ten. As observer, Mr Sykes was of course facing the skier and would not have had the opportunity to see a boat travelling in the opposite direction until well after it had passed. He was fairly sure that they had passed another boat, much earlier in the run, without incident.

19. The other joint owner, Jerome Nash, was on the bank minding the gear, and saw the plaintiff's fall. He said that the boat was coming back into the basin and that as the plaintiff crossed the wake of the boat she fell. He did not see any other boat in the vicinity. He saw the towing boat go back to the plaintiff and saw the defendant stand up and offer the plaintiff a hand, but she declined and skied back. He had known the plaintiff since the 1998-99 season when they were skiing with Mr Pendergast's boat, and he estimated that he had seen the plaintiff water-skiing on the Molonglo River on seven or eight days prior to the accident, and also at least once at Burrinjuck. It was not unusual for a water-skier to cross the wake of the towing boat, and indeed to do so deliberately. He did it himself on every run. It was also a normal part of water-skiing to encounter wash from boats travelling in the opposite direction, though Mr Nash was sure that there were no other boats on the river on the day.

20. Vince Pendergast gave evidence that he had owned his boat, Desperado, for about twelve years. He met the plaintiff during the 1998-1997 season at Lake Burrinjuck. He saw her skiing on one ski behind his boat on many occasions, he thought on at least twenty separate days, having two or three runs on each day. He had seen her skiing at Burrinjuck and on the Molonglo River, always on one ski. When towing the plaintiff, his boat had passed boats travelling in the opposite direction on many occasions. It was very common for two boats to pass each other, each towing a skier. He said that he would always, as driver, signal to the observer and the skier the presence of an oncoming boat.

21. Mr R J Cooper was called as an expert witness in the defendant's case. Mr Cooper is a company director. He has been involved in water-skiing for some forty years. In earlier years he skied competitively at state and national level, and has been the president of the New South Wales Water-skiing Association and vice-president of the national body. He has given expert evidence in water-skiing accident cases in New South Wales and Queensland, and had provided numerous expert reports.

22. He said that the defendant's boat, a Ramsay Puma with an inboard engine, could be described as a normal "bread and butter" ski boat, with adequate power and throwing up a normal wash. He said that towing a learner would demand particular care on the part of a boat driver, but that this would not be necessary in the case of a skier of sufficient competence to be able to use one ski and with a season of skiing experience. He thought that forty to forty-five km/h would be a normal speed for a reasonable skier and certainly not excessive. He described crossing the wash as a normal skiing manoeuvre and something enjoyed by many skiers. Crossing the wash required a degree of concentration and was more difficult than skiing behind a boat in a straight line. It was a basic part of water-skiing and would be one of the first skills to be learned. Crossing the wake was easier at a wide angle and more difficult at a more acute angle because of the upturned tip of the ski. There was a brief period of turbulence as the wakes from two boats intersected, but this could be skied through or avoided by a competent skier. It was not imperative for a driver to notify a skier of a boat approaching from the opposite direction. The skier would be expected to be looking forward and to see an oncoming boat moving towards them. The skier would have plenty of notice, because the oncoming boat would have passed not only the towing boat but also the skier before the wakes met. This provided more than adequate time for a competent skier to take evasive measures or to ski over the increased wash. He regarded the Molonglo River course as reasonably well used and quite safe.

The evidence as to damages

23. After she got back to shore, the plaintiff said that she was in extreme pain from the base of her neck to her tailbone. She had a severe headache. She went home and took some Panadol in the hope that she would be better by the next day. She could not sleep at all, and first thing the next morning consulted her general practitioner, Dr Tran at O'Connor. He prescribed Valium and painkillers which she took for the next few weeks. She described the pain as excruciating. She was unable to do much other than lie down in front of the television. She returned to work after about two weeks but lasted only an hour or two, finding that sitting on a chair was painful. She gradually increased her hours of attendance of work over a period of time, but she found that the medication affected her concentration. A couple of weeks after the accident she saw a naturopath and had some acupuncture, without much effect. Dr Tran recommended a massage programme, and the plaintiff attended a chiropractor for about six weeks, though again without much benefit. She then went to physiotherapy about three times a week for a number of months, where she had traction and stretching exercises. The physiotherapist recommended that she take a course in Pilates and she did this three times a week. She found this quite helpful though some exercises were painful.

24. The plaintiff said that as time went by she began to feel depressed, frustrated and angry. After a year and a half to two years, she decided to structure her own rehabilitation programme, which included regular swimming and cycling, both recommended by her physiotherapist. She found that this was beneficial to her mental condition. She borrowed a bicycle from her mother but its suspension was hard and jarred her back. After talking to her physiotherapist, she bought a full-suspension mountain bike.

25. By the time of the hearing she was taking Zanax, a muscle relaxant and painkiller, as needed, perhaps once a fortnight, although on occasions more frequently. She described her back as flaring up from time to time, which she thought was caused by sitting for too long in the one position. The pain became excruciating for a few days, but she was able to rectify this to a degree with stretching and exercises. She had been unable to return to her pre-accident sports of volleyball, rollerblading, running, kickboxing, wrestling and rock climbing for at least two years. After two years she resumed rollerblading.

26. She had suffered minor injuries in a motor accident in March 1999 when her car was struck from behind. She had a whiplash injury to the neck and back but did not recall taking any time from work. She was given a course of anti-inflammatory medication. The injuries resolved after two or three weeks.

27. The plaintiff also found that after her fall, she could not participate in renovating her house with her boyfriend or in housework generally. Over twelve to eighteen months this gradually improved.

28. The plaintiff worries that her back injury may prevent her from normal childbearing or that pregnancy and childbearing may cause her abnormally severe pain. Her intention is to continue working until the age of fifty or fifty-five.

29. The plaintiff was cross-examined from records produced by her general practitioner. She conceded that in January 2001, two or three weeks before her fall, she went to her doctor complaining of pain in the right buttock radiating down the right leg and was prescribed Vioxx, an anti-inflammatory. She said that she had experienced this pain with running from time to time and that it had happened once or twice a year.

30. She agreed that according to the doctor's notes she did not complain of pain in the lower back until about five months after her fall, in July 2001, but said that she had suffered pain in the entire back from the time of the injury, the upper back being the most painful area.

31. She agreed that she had suffered from stress and anxiety well prior to her fall and had been treated for work stress. She had had a continuing problem with diarrhoea resulting from that stress, and in September 2002 had complained to her general practitioner of palpitations. At about this time she had broken up with her boyfriend, which she thought might have been a cause of the stress. She also agreed that she had experienced knee problems prior to the accident, which she thought were caused by her running.

32. In September or October 2001 she went to Thailand where she slipped and fell on a beach. She did not seek any medical attention in Thailand, but she saw her general practitioner about it when she got home, complaining of extreme pain in the coccyx.

33. In January 2001, three weeks or so before the accident, Dr Tran had advised her not to engage in lifting because of a back problem and had recommended a programme of back exercises. She did not mention this background to doctors who examined her for the defendant's solicitors. Nor did she tell those doctors about the fall in Thailand. Her explanation was that these were not significant incidents to her.

34. Dr Tran provided three reports and was cross-examined by telephone. The plaintiff saw him the day after her fall. On examination she was tender in both trapezius muscles and the paravertebral muscles of the back. She had a full range of neck movement. Dr Tran advised massage therapy and prescribed Valium and Vioxx. He next saw her in July 2001, by which time her neck and upper back pain had improved. When he saw her in August 2001 she still had back pain and he referred her for a CT scan on the lumbar spine. This showed minor diffuse posterior disc bulging at L4-5 without nerve root impingement. Dr Tran referred her for traction physiotherapy, which improved her lower back pain.

35. On 18 September 2001, she presented with worsening back pain and he referred her to Dr Fuller, neurosurgeon, for opinion. No report from Dr Fuller was in evidence. On 8 November 2001 she saw Dr Lo at Dr Tran's practice and was given a cortisone injection into the coccyx area.

36. Dr Tran referred the plaintiff to Dr Chandran, neurosurgeon, in January 2002. His opinion was that conservative treatment should be continued. There was no cause to consider surgery.

37. In May 2002, Dr Tran noted that the plaintiff's back pain had improved significantly with physiotherapy.

38. In September 2002 Dr Tran prescribed Efexor for depression. This had improved considerably when he next saw her in November 2002. In May 2003 she complained of constant mild backache. She had had two episodes of more severe pain in the preceding six months. Dr Tran saw her again in February 2004. She expressed a wish to cease taking anti-depressants. Dr Tran decreased her dose for two weeks, advising her that it would then be in order to stop the Efexor. He thought that she might experience a greater degree of back pain in the later stages of pregnancy than a woman without previous back problems.

39. In cross-examination, Dr Tran agreed that he had seen the plaintiff on 22 January 2001. She had complained of sore knees and pain in the right buttock radiating down the right leg with a tight muscle in the right leg. This indicated to him a potential problem in the low back. He prescribed Vioxx and advised her to avoid lifting. He also recommended knee and back exercises.

40. When he saw the plaintiff the day after her fall, she made no complaint of pain in the low back, and his first record of such a complaint was in July 2001. In the circumstances he was unable to say that the low back symptoms were related to the water-skiing accident.

41. He also agreed that he had treated the plaintiff for anxiety and depression well prior to the fall, prescribing Serepax.

42. Dr Tran's evidence about the low back symptoms is to a degree inconsistent with a report by Ms Anne Davies, a sports physiotherapist, dated 21 January 2002 and tendered without objection in the plaintiff's case. Ms Davies noted that the plaintiff attended physiotherapy on 27 occasions between 26 March 2001 and 16 January 2002 "for treatment of her low back injury". I infer from this that notwithstanding the lack of a note by Dr Tran, the plaintiff had developed low back pain at least as early as 26 March 2001. In the absence of any evidence of any other triggering incident at about that time, it seems to me more probable than not that there was a causal connection between the fall and the low back symptoms. This is consistent with the history given by the plaintiff to Dr Judith May, a sports medicine practitioner whom she consulted on referral from Dr Tran's practice in November and December 2001. She told Dr May that she had immediate pain radiating from the neck down to the lumbar spine. Dr May clearly regarded this as consistent with the water-skiing accident.

43. I also note a report by Ms Sally Trott, physiotherapist, dated 27 March 2001. Ms Trott noted on that date a history of six weeks of constant thoracic and lumbar pain following the water-skiing injury, and a finding on examination of limitation of lumbar extension and tenderness of the joints between T4 and T8. Ms Trott reported to Dr Tran on 10 July 2001 that following extensive physiotherapy treatment to the low back on twelve occasions, the thoracic pain had gone. During the course of treatment the plaintiff had attempted a return to kickboxing and aggravated the lumbar pain which by 10 July had settled again.

44. The defendant relied on a report by Associate Professor Robert Oakeshott, formerly a general surgeon and now a specialist in rehabilitation medicine presently engaged principally or solely in medico-legal referral work. Professor Oakeshott was cross-examined by telephone. He saw the plaintiff on 31 March 2003. He did not have the benefit of any reports by treating doctors. He had been provided with a history of the 1999 motor vehicle accident from which the plaintiff had made a complete recovery, and of the water-skiing accident and her subsequent treatment, but he was not told about the fall in Thailand or the pre-accident treatment for anxiety and depression, or the plaintiff's knee and right buttock pain shortly before the accident. The plaintiff told him that on the day of the consultation she had a general low grade ache from the base of the back of the neck through the mid-back to the lower back. She admitted to good and bad days. There were times when she felt completely better for one or two days. She thought that she was slowly improving. Her sleep was disturbed at times, and her symptoms were made worse by inactivity. Walking for longer than ten minutes caused symptoms in her right leg, and sitting or standing in the same position for longer than an hour caused her to become symptomatic. Professor Oakeshott could not identify any disability arising from the water-skiing accident in any part of her body. He found no objective clinical evidence of any significant physical injury, and considered her symptoms out of proportion to any objectively identifiable physical cause. He thought that she should continue an active exercise programme, and that her symptoms would eventually resolve, perhaps after another twelve months. She had not been left with any permanent disability. She had a constitutional lumbo-sacral spondylolisthesis, identified on x-ray, which was unrelated to the fall and was not, in Professor Oakeshott's opinion, aggravated or exacerbated in the accident.

45. In his oral evidence, Professor Oakeshott explained the mechanism of a hyper-extension injury to the back on impact with a body of water. He thought that the impact was likely to cause damage to the soft tissues of the back, that is muscles and tendons, rather than to bones, joints or nerves, and that the normal history of a soft tissue injury was full recovery over time.

46. Professor Oakeshott explained that the plaintiff suffered from a constitutional defect in the low back, described as a bilateral L4 pars interarticularis defect, associated with the spondylolisthesis. He explained that this was a defect in the back of a vertebra which allowed one vertebra to slip forward on another. This could be asymptomatic but could give rise to intermittent pain, progressing in some cases to quite severe low back pain and sometimes leg pain. It was difficult to express an opinion as to whether a fall like the plaintiff's water-skiing fall might cause such a condition to became symptomatic, and if so, over what period the symptoms might be expected to persist. If such an injury was a significant one, the patient would have pain for a longer period of time, characterising the injury as a major one, likely to cause constant pain and perhaps ultimately leading to surgery.

Findings in relation to liability

47. The action came to trial more than three years after the fall, and it is hardly surprising that recollection of the precise events on the day varies somewhat from person to person. I formed the impression that the plaintiff, the defendant, Mr Sykes and Mr Nash were all doing their best to give their evidence honestly. There were inconsistencies which need to be resolved.

48. It is common ground that the plaintiff fell when attempting to cross the port wake of the towing boat, driven by the defendant with Mr Sykes as observer. I accept the evidence of the defendant, Mr Sykes and Mr Nash that the fall occurred on the return portion of the run. I accept that Mr Nash saw the incident from the shore.

49. There was some inconsistency between the witnesses as to the number of boats on the river, and in particular as to whether another boat had just passed the defendant's boat so as to cause a crossing of the wakes and thus increased turbulence in the water. On balance I am satisfied that there was a boat travelling in the opposite direction. Both the defendant and Mr Sykes recall passing another boat at some point on the run, and the plaintiff, who has good cause to remember it, is very clear that the other boat had just passed. It was for this reason that she decided that the prudent course was to cross back inside the wake of the defendant's boat. I also accept the defendant's evidence, both by reason of his experience, and as a matter of common sense, that by the time the wakes met, the boats had passed each other and the towed skiers were probably about level. The defendant's evidence is that if there was an oncoming boat, it was his invariable practice to signal this to the skier, though his memory is that there was no oncoming boat at the time. The observer was facing backwards and would have been unable to see an oncoming boat. I am satisfied that it was commonplace for two boats towing skiers to pass on the Molonglo River in these circumstances and was by no means an unusual occurrence, or one which might be regarded as carrying particular dangers for skiers. The defendant as driver was facing forwards, away from the skier, and could not be expected to be aware of her position in relation to the port or starboard wake of the boat. The observer would be aware of this, but, as I have said, would not be aware that there was another boat approaching. The person in the best position to see that there was a boat approaching was the plaintiff who was on her own evidence to the left of the port wake, and thus with an uninterrupted view of any oncoming boat. Indeed, she concedes that she saw the oncoming boat and realised that the prudent course was to cross back inside the wash.

50. I accept the expert evidence of Mr Cooper, that there is nothing unusual about crossing a wake for a skier sufficiently competent to use a single ski. It may well be that the plaintiff had not previously had occasion to cross a wake at the precise moment when it met the wake from a boat passing in the opposite direction. It seems to me an unavoidable conclusion that the plaintiff, having decided to cross the wash back in behind the towing boat, met the wash just as the port wakes of the two boats met, causing the increased turbulence referred to by Mr Cooper. It seems likely that the increased turbulence was too much for the plaintiff to cope with, and that this was the cause of her fall.

51. Mr Sykes, the observer who was watching the plaintiff, is not a defendant. Action is brought only against Mr Irwin, the driver of the boat. It is pleaded that he towed the plaintiff into the wake of an oncoming boat and that she was thrown from her ski, suffering injuries as a consequence. Particulars of Mr Irwin's negligence are pleaded as follows:

a) failing to keep any or any proper lookout

b) failing to keep his motorboat under any or any proper control

c) driving his motorboat at a speed which was excessive in the circumstances

d) failing to manage, steer or control his said motorboat so as to avoid the wake of the oncoming boat or at all

e) failing to warn the plaintiff of the oncoming boat

f) failing to direct the plaintiff away from the wake of the oncoming boat

52. The evidence is not capable of supporting a finding that the defendant was not keeping a proper lookout, or that he did not have the boat under proper control. I am satisfied that the speed of the boat was not excessive in the circumstances. I am also satisfied that it was not possible for the defendant to manage, steer or control the boat in such a way as to avoid the wake of the oncoming boat. On the contrary, I am satisfied that the manner in which the two boats passed was common on the river and to be expected.

53. If the defendant failed to warn the plaintiff of the oncoming boat, I am not satisfied that this represented a breach of his duty to her, or was in any way causative of her fall. She concedes that she saw the oncoming boat and realised that it would be more prudent to get inside the wash behind the towing boat. If the defendant had given a hand signal with the purpose of warning the plaintiff that there was a boat coming towards them, I am not satisfied that the plaintiff would have seen the hand signal before she saw the boat for herself. Similarly, if the defendant had, either himself or via the observer, directed the plaintiff away from the wake of the oncoming boat, I am not satisfied that she would have seen any such signal any sooner than she saw the oncoming boat for herself, or that she would have made her decision to return inside the wash any sooner than she did.

54. The High Court of Australia has had occasion to consider a claim for damages for personal injury arising from a water-skiing accident in Rootes v Shelton (1967) 116 CLR 383. The skier plaintiff in that case had collided with a stationary boat and pleaded the driver's failure to control the towing boat and to warn him of the presence of the stationary boat. A jury found for the plaintiff. This verdict was reversed by the Court of Appeal on the ground that the defendant as driver of the boat owed no relevant duty of care to the plaintiff, both being participants in a sport who had, by engaging in it, accepted the risk of injury which that might involve. The High Court restored the jury verdict. In the present case, the defendant does not argue that he owed no duty to the plaintiff, but submits that nothing in his conduct amounted to a breach of his duty.

55. Rootes v Shelton remains good law, having being approved in a relatively recent decision of the High Court, Woods v Multi-Sport Holdings Pty Limited (2002) 208 CLR 460, where an appeal by a plaintiff who had failed at first instance and in the Court of Appeal of Western Australia was dismissed in circumstances where he had been struck in the eye by a ball while playing indoor cricket. Despite the outcome, it was accepted that the defendant, the operator of the indoor cricket venue, owed a duty to take reasonable steps to avoid a risk of injury to players arising from the dangers involved in the sport.

56. Counsel for the plaintiff submitted in address that not only did the defendant have a duty to warn the plaintiff, but also a duty to drive the boat, for example by slowing it down, in such a manner that the plaintiff would not experience difficulty in crossing the wake. I am not satisfied that the defendant appreciated, or ought to have appreciated, either that the plaintiff was likely to experience difficulty in crossing the wake at the speed the boat was travelling, or that the plaintiff, in the event of a fall, was likely to suffer injury. It is clear that falls by water-skiers are relatively common, and there is a recognised protocol for the observer and driver when they occur. There is no evidence that the defendant had any knowledge that the plaintiff had a vulnerable low back. She was herself unaware of the pars defect, and there is no suggestion that she informed the defendant that she had within the last three weeks seen her general partitioner for treatment for knee, buttock and low back symptoms.

57. Nor is there any evidence that the fall might have been avoided if the defendant had reduced the speed of the boat. As the defendant explained in his evidence, a boat does not have brakes and, it may be added, nor does a water-ski. The plaintiff would have retained a degree of momentum of her own and I am not in a position to speculate as to what the outcome might have been if the driver had reduced speed or cut the engine.

58. As I have said, the only negligence pleaded is that of the defendant himself. He is not sued as vicariously liable for any negligence on the part of the observer, nor is any such negligence asserted.

59. It seems to me in the circumstances that the plaintiff has not established any breach of the defendant's duty of care to her. In the circumstances, there must be judgment for the defendant.

Damages

60. In case I am found to be in error in this conclusion, I shall proceed to undertake a provisional assessment of damages.

61. The plaintiff suffered excruciating pain in her whole back in the early period after the accident, relieved to an extent by painkillers and anti-inflammatory medication. She underwent extensive treatment over a period of eighteen months to two years. She has improved considerably over that time, but continues to complain of symptoms requiring medication about once a fortnight, with flare-ups every few months when she needs to take medication for some days at a time. She was unable to work for a period, although no claim is made for past loss of earnings. I accept that she required some help with household tasks for perhaps three or four months after the accident. For the reasons I expressed earlier, I am satisfied that the low back symptoms of which the plaintiff complains, and for which she has received continuing treatment, are accident-related.

62. I acknowledge that the plaintiff had a vulnerable low back prior to her fall, and that she was more susceptible than another person might be to injury bringing on low back symptoms. It does not seem to me that the condition for which the plaintiff sought treatment in late January 2001 was one of great severity. If it had been, it seems to me inherently unlikely that she would have been engaging in water-skiing three weeks later.

63. The plaintiff's fear of back pain associated with future pregnancy appears a realistic one. Subject to this, it seems to me that the plaintiff's symptoms by the time of hearing were relatively mild and continuing to improve, and I accept that the prognosis is good. In my opinion an appropriate award for general damages would be $45,000 of which I would apportion $30,000 to the past and $15,000 to the future. The past component attracts interest of $3,000.

64. I allow the amounts claimed for physiotherapy, chiropractic and massage therapy, and for Pilates; and for general practitioner and specialist consultations and pharmaceutical expenses.

65. There is an issue between the parties as to whether or not I should make any allowance for the cost of a full-suspension bicycle, which the plaintiff bought in February 2002. It is submitted on behalf of the defendant that there is no medical evidence supporting the purchase. The plaintiff, however, gave evidence that she was advised by her physiotherapist to engage in cycling as part of her recovery programme, and that she has done so with considerable benefit. Initially she borrowed a bicycle but it had no suspension and the jarring increased her symptoms. She purchased the full-suspension bicycle, after discussing it with the physiotherapist, to overcome this problem. This seems to me reasonable and there is no question that the injuries suffered in the fall were a cause of her committing herself to this expense. At the same time, the plaintiff may have purchased a bicycle in any event and would have gained health benefits from its use regardless of the accident. I propose to allow $2,000 in relation to the cost of the bicycle, including interest.

66. There is insufficient evidence for me to be satisfied of the need for the purchase of an elliptical trainer ($889), Latexco firm mattress ($2,606) or Total Trainer exercise machine ($1,130) as claimed and I make no allowance for those items.

67. In the absence of evidence of dates of payment of any of the treatment expenses I do not propose to make any allowance for interest. I allow for past expenses including the bicycle the sum of $9,117.63.

68. The plaintiff will continue to require medication for some time into the future and for this purpose will need to see her general practitioner occasionally. For future treatment expenses I allow $1,000.

69. I am not satisfied that the plaintiff's accident-related disabilities are likely to be reflected in loss of earnings in the future, and I decline to make any award for loss of earning capacity.

70. I am satisfied that an allowance should be made for the commercial value of personal and domestic services required by the plaintiff during the first three or four months after the accident. I allow $2,000 including interest.

71. The individual components of the assessment of damages are:

General damages $45,000.00

interest thereon $3,000.00

Treatment expenses $9,117.63

Future treatment expenses $1,000.00

Griffiths v Kerkemeyer $2,000.00

Total $60,117.63

72. This figure appears to me to reflect adequately the impact of the injuries upon the plaintiff. However, for the reasons I have earlier expressed, there will be judgment for the defendant. I shall hear the parties as to costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 25 February 2005

Counsel for the plaintiff: Dr K M Spry

Solicitor for the plaintiff: Howes Kaye Halpin

Counsel for the defendant: Mr G A Stretton

Solicitor for the defendant: Dibbs Barker Gosling

Date of hearing: 6, 7 October 2004

Date of judgment: 25 February 2005