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Case study: Failure to alter boating vessel for commercial use

Mrs Ellery claimed compensation for injuries she sustained while on board a catamaran at the Hamilton Island Marina on 3 May 2012. The case is known publicly as Ellery v Sunsail (Australia) Pty Ltd [2014] QDC 285.

Mrs Ellery's story

Mrs Ellery was on holiday in the Whitsunday Islands when her daughter, Ms Betts, organised a one day cruise around Hamilton Island on one of the catamarans operated by Sunsail.

Not long after boarding the catamaran, Mrs Ellery was introduced to the skipper, Mr Ash. As he extended his hand to shake hers, Mrs Ellery stepped back and fell down the stairway.

Mrs Ellery suffered serious neck and back injuries as a result of the fall and was in hospital for a few weeks in Mackay. From Mackay Base Hospital, Mrs Ellery was transferred to Caloundra Hospital and was discharged from there on 3 August 2012.

The fall had caused fractures of the upper two cervical vertebrae as well as C5 and C6 bodies. In July 2013, Mrs Ellery suffered the first of a series of strokes.

The decision

Sunsail was found to be negligent by not altering the vessel in order to avoid relevant risk as they were employing the vessel for commercial use. What was required was a physical safety barrier, which would have reduced the risk of falling down the access stairway, at least until all passengers were on board and given a thorough safety briefing. Failure to do so amounted to a breach of duty and was a significant cause of Mrs Ellery’s injury.

The decision of His Honour Judge Devereaux was appealed to the Mackay District Court on 19 December 2014 and resulted in compensation for Mrs Ellery in the sum of $117,975.69.

How do I know if I'm able to make a public liability claim?

There are legal options if you have suffered a public injury. Compensation claims can be made through the courts, which can be successful if it's proven that you suffered because of someone else's negligence.

I think I have a public liability claim, what should I do next?

It's important that you contact a public liability lawyer with experience in public injuries claims as soon as possible to make sure your interests are looked after.

The Shine Lawyers public liability team will be able to advise you of your entitlements. Advice is obligation free, and your lawyer can come to you at home or hospital.

The Shine Lawyers No Win No Fee policy is available for public injuries claims. This is designed to help people whose financial circumstances might otherwise deny them access to legal representation.

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Written by Shine Lawyers. Last modified: August 3, 2017.

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