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August 21, 2019
Boating Accident – How do I claim compensation?
Emergencies are not conducive to planning. If you have been involved in a boating accident you may appreciate the shock and rush of emotions that a seriously injured person will experience in the immediate aftermath.
Unlike motor vehicles, there is no comprehensive third-party insurance requirements for boats. Nonetheless, most commercial vessels and even small recreational craft have insurance coverage in cases where negligence has resulted in personal injury.
Insurance cover exists in part to simplify the process of making compensation claims. Unfortunately our experience is that critical mistakes and omissions are made immediately after a boating accident, which can take away the opportunity of making a claim at a later date.
What kind of evidence will assist me to make a claim?
Photos, photos and more photos!!!
It is difficult and often impossible to make a claim without photos taken of the location of the accident within a reasonable period of the accident taking place.
Often evidence disappears, defects are corrected and there is no way of showing (either the insurer or a Judge) the precise cause of an accident.
In addition to photos, video footage, incidents reports and any other records that explain how the accident happened, should be preserved.
Boating accidents can have their own unique complexities, because the weather is often a factor. Data from the Australian Bureau of Meteorology can assist to explain the circumstances of the accident.
Crush injuries caused by a fall between a boat and a pier.
Spinal fractures arising from driving too fast and recklessly over a wave.
Lacerations and soft tissue injuries caused by a vessel that was not properly secured to the jetty.
Catastrophic injuries caused by a head on collision with another boat.
Whip lash and ligamentous injuries caused by a slip and fall accident on a ferry.
Can I make a claim for compensation after I have been involved in a boating accident?
Claim in tort
If you are injured as a result of the boating accident and can establish that another party is at fault for your injuries, you may be eligible for compensation.
If the boating accident occurred in New South Wales, generally speaking the Civil Liability Act 2002 (NSW) will apply to your claim. To receive compensation under this Act, you must be able to establish, on the balance of probabilities, that:
The individual or organisation responsible for your injuries owed you a duty of care.
The individual or organisation breached that duty of care due to a negligent act or omission.
The individual or organisation’s breach caused you injury, loss and damage.
The injury, loss and damage you sustained were not too remote to the breach.
The above elements are all legal concepts. One of our expert lawyers will be able to explain what these concepts mean in practical terms.
Under the Act, the individual or organisation responsible for your accident may be able to defend a claim in negligence based on the statutory defences available to them. Whether or not the defences will apply will depend on the unique facts of your case and the nature of the boating accident. Defences available could include the no liability for harm suffered from obvious risks of dangerous recreational activities (Section 5L), waiver of contractual duty of care for recreational activities (Section 5N) and no duty of care for recreational activity where there is a risk warning (Section 5M).
Claim in contract and/or Australian Consumer Law
By virtue of your purchase of a ticket or payment for a service, you may have a claim in contract and/or the Australian Consumer Law. A claim in contract would involve establishing that the organisation breached the express or implied terms of the contract. The damages available to you in contract are more limited than those under tort.
To claim under the Australian Consumer Law, you are required to establish that you are a consumer and that the defendant was an organisation that supplied services in trade or commerce. Again, the Australian Consumer Law limits the damages available to you compared to tort. One of our expert lawyers will be able to explain your entitlements under contract and Australian Consumer law as they will vary on a case-by-case basis.
What compensation could I be entitled to receive?
Each compensation claim is unique and we will always advise you on your entitlements. However, an injured person who can establish negligence per the Civil Liability Act 2002 (NSW) may be entitled to:
Non-economic loss: this head of damage relates to losses that are not capable of precise mathematical calculation. Traditionally, this has included pain and suffering, loss of amenities, disfiguration, loss of life expectancy and loss of enjoyment of life. Section 16 of the Civil Liability Act 2002 (NSW) sets out the threshold you must meet to qualify for this head of damage and also sets out a statutory maximum.
Care and domestic assistance: this head of damage encompasses any personal care (such as assistance with dressing and showering) and domestic assistance (help with the gardening, cooking, washing etc) that you have needed in the past and will need in the future due to the injuries you sustained in your accident.
Past and future gratuitous care: in order to claim for ‘gratuitous’ (or unpaid care often provided by family members), you must satisfy the statutory threshold provided by Section 15 of the Civil Liability Act 2002 (NSW) The care must be provided for at least 6 hours per week for at least 6 consecutive months.
Commercial care: A claim may be paid for both past commercial care (this is care such as cleaning and nursing that you have been required to pay for) and for future commercial care. The care must be reasonable and necessary and usually requires support in the form of evidence from medical practitioners.
Past and future out-of-pocket expenses: Past out-of-pocket expenses include any reasonable expenses you have incurred for treatment, medication and travel due to your injuries. These expenses should be evidenced by receipts and medical evidence. Future out-of-pocket expenses relate to the treatment you will require into the future such as physiotherapy, further surgery, medication etc. Again, claims for future treatment must be supported by medical evidence.
Past and future economic loss: if you were employed at the time of the boating accident and could not work at the same capacity as before your accident or at all, you are entitled to claim for past economic loss. This includes any lost wages, bonuses, over-time and superannuation that you forwent due to your injuries. Future economic loss takes into account the ongoing effects of your injuries on your ability to perform your pre-accident duties, future employment prospects and any loss of earning potential you suffer due to your accident.
I could write a book as to how the last 4 years would have been different if not for Tom and his team.
The support, assistance, advice from the first conversation till even after the settlement was second to none from the team at Stacks Goudkamp.
Four years on and after many downs, my children and I have our lives back.
We are unable to THANK YOU enough, but know that you have changed our lives for the better in so many ways since the accident.