$4m awarded for loss of legs

A Victorian man who had both legs amputated after a houseboat reversed over him has been awarded $4 million in damages after a judge found the skipper negligent.

Victorian Supreme Court Justice Andrew Keogh said Anton Nixon sustained "horrific" injuries in the October 2014 incident and could not have expected his friend Robert Lines to reverse the boat while he was in the water.

He rejected Mr Lines's argument Mr Nixon was at least partially responsible for his injuries because he should have been aware of the danger and anticipated the houseboat would reverse to retrieve a ski boat that had broken loose.

Instead, Justice Keogh found it was Mr Lines who should have known Mr Nixon was exiting the houseboat from the rear swimming platform to ride a jet ski to get the loose ski boat.

Mr Nixon had sued Mr Lines for negligence for reversing the houseboat without warning or first ensuring no one was at the rear of the houseboat. He also alleged negligence because Mr Lines continued to steer the houseboat from the upper deck controls rather than the lower deck, making it harder to see the rear swim deck to ensure it was clear.

Mr Nixon lodged a damages claim for breach of duty of care under the NSW Civil Liability Act 2002. Both Mr Nixon and Mr Lines agreed Mr Nixon should be awarded $4 million, including interest to the date of judgement, if the claim were successful.

The Supreme Court trial was told nine people – Mr Nixon, Mr Lines, their partners and five friends or relatives – were on a Murray River houseboat holiday near Mildura when the incident occurred. 

Mr Lines was driving the houseboat, which was towing a ski boat and a jet ski up the river, when the ski boat broke away. Mr Nixon and friend Colin Wilson said they would take the jet ski to retrieve the ski boat and left the houseboat from the rear swimming platform.

It was the second time the ski boat had become loose and the second time Mr Nixon had used the jet ski to retrieve it. The first time, someone else went with Mr Nixon and the boat had been towed back without incident.

On the second occasion, the houseboat reversed just as Mr Nixon and Mr Wilson mounted the jet ski. The boat ran over the top of them and the propeller severely lacerated Mr Nixon's legs. They were later amputated in hospital. Mr Wilson was uninjured.

In his defence, Mr Lines argued he had heard unknown passengers tell him to reverse the houseboat and had engaged the gears while Mr Nixon and Mr Wilson were still on board, and believed both men were aware of his intended actions.

They were both experienced boat operators, would have seen the water churning, and been aware of the dangers of boarding the jet ski from the rear of the houseboat. As skipper he could not be expected to foresee them being "foolhardy enough" to mount the jet ski from the rear platform of a reversing boat.

On 29 November last year, Justice Keogh found in Mr Nixon's favour. He said it was inconceivable two experienced mariners would try to mount a jet ski while a houseboat was reversing towards it.

"Jumping into turbulent water behind the reversing houseboat [near] the operating outboard motors would be an act of breathtaking stupidity and recklessness," Justice Keogh said.

He found Mr Lines should have taken steps to ensure no one was behind the houseboat before he reversed it, including seeking the guidance of people on the lower deck to tell him if there was anyone behind the houseboat or on the swim deck.

Justice Keogh said, alternatively, Mr Lines could have moved to the lower deck to help with the ski boat's retrieval. He had acknowledged in cross-examination he had been told by the boat's owner it was preferable to use the lower deck controls when reversing.

"In cross examination, Mr Lines agreed there was no reason he could not have disengaged the upper deck controls and gone to the lower deck before putting the houseboat into reverse," he said.

"He had time to shut off the [upper deck] controls, place the motors in neutral, and go downstairs before reversing. If he had done so, [he] would have walked across the rear lower deck and had the opportunity to see Mr Wilson and Mr Nixon on the swim deck."

Passengers disagreed when or even if Mr Lines had been instructed to reverse but Mr Lines should have ignored any instinct to re-engage the engines until he was sure no one was in danger.

"Reversing the houseboat when Mr Nixon and Mr Wilson were behind it was [the] cause of the accident and Mr Nixon's injuries, [and] Mr Lines was negligent to reverse when he did," Justice Keogh found.

Nixon v Lines [2017], VSC 723, 29/11/2017