Rootes v Shelton [1967] HCA 39

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. Rootes v Shelton [1967] HCA 39

ORDER Appeal allowed with costs. Order of the Court of Appeal discharged. In lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 18 Barwick C.J.

The appellant, an experienced water skier, was skiing on the Macquarie River at Dubbo, performing in company with other experienced water skiers an operation known as "cross-overs", in which three skiers being towed with ropes of different lengths pass from side to side across the wake of the towing boat and across each other's paths. The appellant at the material time was the middle of the three men and thus in crossing had to pass his tow rope over the skier ahead of him and crouch under the rope of the skier behind him.

The towing boat was being driven along a fairly straight and sufficiently wide stretch of river during the manoeuvre, travelling at thirty to thirty-five miles per hour. As the appellant was passing to the starboard side of the boat's wake he was temporarily blinded by spray and had need to clear his eyes before starting to turn inwards again. This may possibly have caused him to swing wider in executing his manoeuvre than otherwise he might have done. However, when he could see again he was faced with a stationary boat, as he says, about six feet away from him. He endeavoured to avoid colliding with it but was unable to do so. In the result he was severely injured. He sued the respondent who was the driver of the towing boat for failure to take due care in the control of the boat and for failure to warn him of the presence of the stationary boat.

It seems that it was usual, as the appellant, the respondent and the other participants conducted their water skiing, to have an observer as well as a driver in the towing boat: it was also usual for the driver or the observer to signal the presence of any obstacle which was seen in or on the water along which the tow was being made. Although on this occasion there was another person in the towing boat as well as the driver, as I read the evidence, that person was not acting as observer nor was any signal given by the driver warning of the presence of the stationary boat of whose presence or position it was conceded the driver at material times was aware.