If you have been injured as a result of a boating accident you may be entitled to compensation.
Your eligibility and the type of claim you can make will depend on the circumstances of your accident. Important factors will include whether it was a commercially operated boat or privately owned, whether the boat (or another boat) was operated in a negligent manner and whether there were steps the operator of the boat could have taken that would have prevented the accident.
The boating accident specialists at Stacks Goudkamp have numerous successful personal injury compensation claims for accidents involving boats. Recent successful claims have included the following:
Who is responsible for personal injury sustained on a boat?
The ‘skipper’, commonly termed ‘the boat operator’, will have responsibility for any personal injury sustained on a boat. The skipper is the individual operating the boat at the time of the accident.
The owner of a vessel will also owe an injured person a duty of care in some circumstances. This duty will always be determined on a case-by-case basis based on the evidence and the arrangements in place between the skipper and the vessel owners.
Unlike motor vehicles, there is no comprehensive third-party insurance requirements for boats. Nonetheless, most commercial vessels, and even small recreational crafts, have insurance coverage in cases where negligence has resulted in personal injury. In those circumstances, a claim would be made against the insurance policy in place insuring the skipper’s and/or boat owner’s negligent acts or omissions.
What responsibilities do the skipper and vessel owners have to boat passengers?
- Take all precautions to ensure the safety of their vessel, crew, passengers and cargo;
- Have an effective Safety Management System in force to determine potential risks and implement controls to combat those risks;
- Keep a proper lookout for dangers of navigation and collision;
- Remain fully aware of the environment, including bad weather;
- Operate the boat at a safe speed;
- Operate the boat without any influence from alcohol or drugs;
- Keep the vessel in safe and effective working order; and
- Ensure that persons on a vessel are not placed in situations where their safety may be compromised.
If you are injured as a result of the boating accident and can establish that the skipper and/or vessel owner is at fault for your injuries, you may be eligible for compensation.
What kind of evidence will assist me in making a claim?
Photographs are an important source of evidence. 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.
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:
- Pain and suffering: 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 voluntary (unpaid) 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.
- Paid 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 medical 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 (i.e. loss of earning and earning capacity): 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.
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