Ellery v Sunsail (Australia) Pty Ltd looks at the responsibilities owed by commercial vessel owners to their passengers.
In this case, Mrs Ellery was on holiday in the Whitsunday Islands when her daughter organised a one day cruise on a catamaran operated by Sunsail.
Soon after the passengers boarded the catamaran, Mrs Ellery stepped backwards and fell down a short but steep flight of stairs. Mrs Ellery was 82 years of age at the time.
Mrs Ellery suffered serious injuries to her neck, back, chest and shoulder in the fall. She also suffered a series of consequent strokes.
Mrs Ellery alleged that the accident was caused by Sunsail’s failure to warn her of the danger of the stairway, as well as their failure to apply a physical barrier to the stairway to prevent such a fall.
Devereaux SC DCJ agreed with Mrs Ellery and held that Sunsail had breached its duty by failing to install a physical safety barrier, which could have been removed once passengers were on board the catamaran and provided with a thorough safety briefing.
His Honour did, however, find that Ms Ellery had contributed to her injuries by failing to appreciate her surroundings and by failing to take care to avoid the access to the stairway.
Mrs Ellery was awarded compensation in the sum of $117,975.69, which included a 30% reduction for her contribution to the fall.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).