Dolphins, Boats, Tickets, Waves and Waivers

Lightfoot v Rockingham Wild Encounters Pty Ltd [2017] WADC 62 – Negligence, Personal Injury Damages and Contractual Waivers of Liability.

Ms Lightfoot was a paying passenger on a vessel operated by Rockingham Wild Encounters (RWE) on a dolphin watching tour when she sustained a significant back injury requiring surgery. She sued RWE for damages in negligence and under the Occupiers’ Liability Act 1985 (WA).

On the day of the accident, she attended RWE’s office to collect and pay for tickets which she had reserved online the previous day, a confirmation email having been sent to her by RWE. Before boarding, she and her friend signed a waiver of liability for the tour. The skipper also gave all passengers a short safety briefing. After looking for dolphins (sadly Ms Lightfoot saw none) the vessel returned home and in doing so encountered a large wave which lifted Ms Lightfoot out of her seat and brought her down hard, making her hit her back against the edge of her seat. As a result, she received a serious spinal injury which ultimately required surgery two days later.

As to Ms Lightfoot’s claims, RWE clearly had a duty to take reasonable precautions to guard against any foreseeable risk of harm to its passengers. In order to establish whether RWE had been negligent the trial judge concentrated on the following:

  • Did the short briefing before the trip constitute a warning? Her Honour noted that a warning may not need to precisely fit the events in detail but, it must be a warning which relates to the risk, such that a person could act realistically.
  • Whether the navigation of the vessel amounted to a breach of duty? She noted the question of failure to take reasonable precautions is to be considered without the benefit of hindsight. The assessment of the existence and content of such a duty is to be undertaken by looking forward from a time before the occurrence of the injury giving rise to a claim.

She found the briefing given before the tour to Ms Lightfoot and the other passengers did not negate the duty of care owed by RWE to Ms Lightfoot. Without the benefit of hindsight she found the skipper was not negligent, as the degree of probability of a sudden large wave appearing in those waters was too remote. To hold the skipper negligent would have been to impose an absolute duty to ensure the safety of passengers and to judge the situation with the benefit of hindsight.

Her Honour then considered the waiver but said given her findings on negligence “the waiver has no work to do in this case“.

She first concluded the email accepting Ms Lightfoot’s bookings was evidence of a contract between the parties. She then considered whether the waiver indemnified RWE against Ms Lightfoot’s claim. She noted the Civil Liability Act 2002 (WA) contained provisions allowing a contractual term which excluded liability for recreational activities (in this case the waiver). Ms Lightfoot had though argued the waiver was unfair and void under the Competition and Consumer Act 2010 (Cth). She noted the Competition and Consumer Act provided an exception for terms in contracts for the supply of recreational services, which applied if any exclusion of liability was limited to personal injury and if the defendant’s conduct was not reckless. Although in this case the skipper’s conduct was not reckless, the drafting of the indemnity had included property damage and was not limited to personal injury, so her Honour held that it was ineffective.

The action was dismissed, but had it succeeded Ms Lightfoot would have been awarded roughly $400,000 plus trial costs. Had RWE been negligent though, the waiver would not have applied and RWE would have been found liable in damages. Consequently we recommend all recreational services providers carefully consider all waivers of liability in their contracts to ensure they afford proper protection under Western Australian law.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.