In Ellery v Sunsail (Australia) Pty Ltd  QDC 285 Devereaux SC DCJ found a charter boat operator was required to warn of the risk posed by a set of stairs in a charter boat, or otherwise erect a barricade over the stairs to prevent the risk of someone falling down the stairs.
The Plaintiff and her family hired a catamaran to cruise around the Whitsunday Islands. Prior to the owner of the vessel giving instructions and induction in relation to the use of the boat the Claimant was standing in the vicinity of a set of stairs leading down to a lower level. The Plaintiff took a step backwards (either to give way to someone walking by, or because she was bumped) and she fell down the stairs sustaining serious neck injuries. She also sustained injuries to her back, chest and shoulder.
The main issues in contention were:
- Whether a warning was required relating to the hazard posed by the stairs;
- Whether, in the absence of a warning, a barricade was required over the stairs;
- Whether the Claimant was liable in contributory negligence for stepping back without looking where she was placing her feet;
- The quantum of damages, particularly relating to care and assistance.
There was nothing remarkable in the findings relating to the duty of care owed:
“The Defendant owed a duty to take precautions that, in the circumstances, a reasonable person in the position of the Defendant would take, against a foreseeable not insignificant risk of harm.”
A distinction was drawn between the duty owed by a private owner of a catamaran, and one who leases the vessel for reward:
“Once a vessel owner employs it for commercial charter, even where the owner supplies a skipper and the party is small, it seems to me the reasonable response to the risk requires a different standard of fitting [to that which was installed when the vessel was built].”
Expert evidence was given by Mr Kahler on behalf of the Plaintiff relating to the precautions that could have been taken to minimise the risk of harm posed by the stairs. The three precautions (referred to as “engineering controls”) specifically noted by the District Court were:
- Erecting a chain or guard rail at the top of the stairway;
- Installing an “auto close lock gate” above the stairway;
- Covering the stairway with a hatch.
The court found the stairs were not an obvious risk and the charter operator breached their duty of care:
“The confines of the saloon on the Sea Lynx and the peculiar structure situation of the access stairway in such a vessel do not represent an obvious risk such as to absolve the Defendant of a duty to warn. In any case, the crucial factor in the present case is, as I have set out, the failure to employ a safety management system which included an “engineering control”.
This conclusion does not set up a precedent for every business which operates sailing charters. It may be in some cases the operational procedures alone – literature, greetings, induction, warnings – would discharge the operator’s duty to take reasonable care to avoid reasonable foreseeable risk of injury to passengers.”
Effectively the court found warnings or instructions relating to the stairs should have been provided when passengers entered the vicinity. In the absence of a warning, one of the three safety measures reported by Dr Kahler should have been in place in order for the Defendant to discharge its duty of care to passengers.
Devereaux SC DCJ was satisfied the Plaintiff was also partially responsible for her fall. In particular, she failed to look where she was stepping immediately prior to falling down the steps. The cause of the fall was apportioned 70% to the vessel owner and 30% to the Plaintiff.
The Claimant sustained two fractures to her cervical vertebrae, together with fractured ribs, fractured scapular and a suspected fracture of her sternum. The Plaintiff also sustained two fractures to her thoracic vertebrae.
A little over one year after the subject accident the Claimant had a stroke, and then further strokes followed. It was found that due to the Plaintiff’s elderly age and the other conditions she was suffering from, which were unrelated to the accident, an uplift of only 25% was appropriate when awarding General Damages.
In terms of care, it was found the Claimant was only entitled to same for the period up until the first stroke. The court was persuaded that after that date, the consequences of the strokes eclipsed the harm caused by the Plaintiff’s fall.
The court noted the difficulty in finding whether the stairs were safe or not on the evidence presented. It was noted no photograph of the stairs was produced in evidence at the trial. As a result, the task of the court finding “the Plaintiff has presented evidence sufficient to prove the dangerousness of the stairway” was made more difficult.
In resolving the issue, the court appears to have looked to the seriousness of harm that was created by the stairway. In particular, the court drew a distinction between the decision of Cruise Group Pty Ltd v Fullard  NSWCA 161 where it was found the operator of a ferry-like vessel was not liable for an accident where the Plaintiff in that case tripped over the coaming on the vessel. It was noted the risk of damage in that case was “minimal”.
Where the burden of proof rests with Plaintiffs it is important they prepare for trial thoroughly. In the event a Queensland Plaintiff was not in possession of photographs of the stairs, they would be entitled to conduct an inspection under rule 250 of theUniform Civil Procedure Rules 1999 (Qld). For Defendants, where it is apparent there are holes in a Plaintiff’s evidence, being strategic in the evidence led at trial can work to their advantage (and this nearly was enough to win the case for the Defendant here).
In this case where the potential risk of harm was significant (as evidenced by the Plaintiff’s injuries), the court was prepared to find stairs were unsafe in this case.
It is therefore clear that commercial charterers will need to assess the potential risk of harm when deciding what immediate warnings should be provided when passengers are placed at risk due to that harm. Of course, consideration should be given to providing instructions and warnings prior to charterers boarding the vessel.