Queensland is famed for its outdoor lifestyle and natural attractions, which draws millions of visitors to the state each year. One of the most popular things to do in Queensland is get out on the water – from the world-famous Great Barrier Reef to whale-watching and island hopping, the state is well served by hundreds of commercial boat tour operators.

But what happens if you’re injured or worse during a trip on a commercial boat trip. Two recent fatalities of tourists during snorkelling trips on the Reef have brought this issue into sharp focus, raising the question of a commercial boat operator’s duty of care.

In this article, we’ll look more closely at making a compensation claim under Queensland's legal framework - focusing on the application of the Civil Liability Act and the Personal Injury Proceedings Act - if you’re injured during a boat trip. If this situation applies to you, seeking the services of an experienced compensation lawyer should be your first phone call.

Duty of care of commercial boat operators

Operators of commercial boats owe a duty to passengers and crew members to ensure their safety during the journey. This duty includes maintaining the vessel in a seaworthy condition, following safety regulations, and taking necessary precautions to prevent accidents.

Trips on the water can be unpredictable due to weather and many other factors. Potential injuries on commercial boats can arise from:

• dangerous operation of the boat or vessel;
• the vessel being operated by someone under the influence of drugs or alcohol;
• safety equipment missing or not operational;
• improperly maintained craft;
• non-compliance with maritime safety rules by the operator.

When a commercial operator fails to uphold this duty and breaches their obligations, leading to injuries, the injured party may be entitled to compensation as part of a public liability claim. It's crucial to document the circumstances surrounding the incident (gather the names and details of witnesses), seek prompt medical attention and keep all records (medical expenses, lost wages, transport costs, etc).

The Civil Liability Act (‘CLA’) in Queensland plays a significant role in determining personal injury claims, including those arising from incidents on commercial boats, by establishing the framework for determining negligence and liability in such cases.

Under section 9 of the CLA, claimants must prove that the operator's breach of duty was a significant contributing factor to the injury. The Act states that a person does not breach a duty to take precautions against a risk of harm unless:

1. the risk was foreseeable (that is, the person knew or ought reasonably to have known of the risk); and
2. the risk was not insignificant; and
3. in the circumstances, a reasonable person in the defendant’s position would have taken precautions.

In deciding whether a reasonable person would have taken precautions, the court is to consider:

1. the probability of harm if care were not taken;
2. how serious the harm is likely to be;
3. the burden of taking precautions to avoid the risk of harm;
4. the social utility of the activity that gives rise to the risk of harm.

If an injured person establishes negligence through a breach of the operator’s duty of care, the commercial boat operator has a number of defences under the CLA, including obvious risk, inherent risk, voluntary assumption of risk, dangerous recreational activity, exclusion of liabilities, illegality, inevitable accidents and contributory negligence.

The defences most relevant to a trip on a commercial boat are exclusion of liability and contributory negligence. Most commercial maritime operations will have those who travel on their craft sign a waiver or disclaimer which limits or excludes the liability of the operator for any injury sustained during one of its tours. But to be effective as a defence against a negligence claim, such a clause must be precisely and clearly worded to cover the circumstances in which the injury occurred.

Contributory negligence is a defence should the operator be able to prove the injured person did something (or failed to do something) which contributed to them being injured, such as not following safety directions or behaving in a reckless or dangerous manner while on board.

Personal Injuries Proceedings Act (‘PIPA’): Any personal injury claim resulting from an injury sustained during a boat trip will also be subject to the procedural requirements of Queensland’s PIPA legislation, designed to promote quicker resolution of claims through out-of-court settlement, sets out strict timelines for claims, puts limits on compensation pay-outs and requires a claimant to only initiate court proceedings if properly prepared. PIPA also requires a defendant - such as commercial boat operator in this topic - to fully co-operate with the party seeking compensation by providing all relevant information related to the claim. 

Discuss your case with our expert team

Taking a trip on a boat can be inherently risky because of the instability of the water and unpredictability of weather, and injuries are common. Proving the negligence of the operator in breaching its duty of care to passengers can be difficult, which is why the guidance of our experienced team at Lifestyle Injury Lawyers is vital if you believe you have a claim for compensation. If you’ve been injured during a trip on a commercial boat, contact one of our expert team today to discuss your case.