Our client was a customer at a waterpark facility. He was attending with friends during the holiday period. One of the water slide rides had certain operational requirements and weight limit for all persons. These operational requirements were not complied with by the staff at the time. As our client was coming down the water slide, the tube her was in flipped over and resulted in our client falling from a significant height and resulting in him suffering a serious injury to his left shoulder.
Our client was taken to a nearby public hospital where it was confirmed that he had fractured his left clavicle/left shoulder and he had significant displacement fracture of the left clavicle. He was referred to an orthopaedic surgeon and he underwent an operation of the fractured left clavicle with plate and screws. Our client was off work for some time and when he did return to work, he was reduced in his capacity in terms of lifting and use of his left arm and fractured left clavicle.
It was alleged that our client’s injury, loss and damage was caused by the negligence of the waterpark staff in failing to comply with the operational requirements of the water slide in question. There was a foreseeable risk of harm to our client. The risk of harm was not in significant, and a reasonable person in the position of the staff would have taken precautions against the risk of harm. Furthermore, it was alleged that the risk of harm was very serious and there was a probability that the harm would occur if the staff did not exercise reason care in the circumstances.
It was alleged that the staff were negligent in that they failed to comply with the operational requirements of the ride including exceeding the weight limit for the ride, failing to inspect and adequately supervise its employees and staff and failing to provide a tube that was not prone to flipping over. It was also alleged that there were implied terms and/or warranties of the contract between our client and the water slide facility provide premises that were safe as reasonable care and skill on the part of any one can make them, to provide its services with reasonable care and skill and that they would provide the premises that were safe.
In terms of the implied terms, they were reasonable and equitable, necessary to give business sufficiency to the contract, so obvious that they went without saying, capable of clear expression, and did not contradict any express term of the contract.
It was alleged that there was a breach of contract on behalf of the staff in that the injury, loss and damage of our client was caused by the staff breaching the statutory guarantees contained in the australian consumer law.
Our client sought further legal advice from our legal firm, as others were unsure as to how to approach the claim. We requested for information, documents and particulars including the operational requirements of the ride in question as well as the incident report, statements, cctv footage and the procedural manuals in respect of the water slide in question. It was clear to us from the information and documents and particularly the operational requirements of the water slide that the staff did not comply with the operational requirements and that this directly resulted our client suffering his serious injury to his left clavicle and left shoulder.
We arranged for our client to be independently medically assessed and the orthopaedic surgeon found that our client still had pain in the left clavicle area and restricted mobility of the left shoulder.
He also was left with significant disfigurement of the left clavicle area and a large scar where the operation was undertaken. He may require surgery in the future to remove the plate and screws from the left clavicle. It was determined by the orthopaedic surgeon that our client would have some difficulties in heavy lifting which would need to be taken into account as a limitation in his employment duties including repetitive overhead tasks involving the left hand and left arm. The left shoulder and clavicle fracture conditions and impairments are a direct result of the fall that our client suffered at the amusement park. In the future, he would be likely to development premature osteoarthritis causing further movement restrictions of the left shoulder. It was clear that he had suffered quite a serious injury which would adversely affect his loss of enjoyment of life and reduced his capacity to participate in social, domestic, recreational, sporting and employment activities in the future.
Having regard to the facilities own procedural manuals and operating manuals and procedures for the ride, detailed submissions were provided to their legal representatives that the risk of harm could have been avoided by the operators following the procedural manuals that were in place at the time. The facility agreed to enter into settlement discussions in the matter. At an informal settlement conference between the parties, the water slide facility were ordered to pay our client a substantial award of damages in compensation for his injuries, losses and damages. Our client was quite pleased with the outcome of a successful settlement in this claim in which initial liability was denied by the water slide facility, their insurer and their legal representatives. The documentary evidence revealed the basis of the client’s successful claim.
Conclusion:-
If you are a lawful entrant and customer at a waterpark facility and you suffer a serious injury as a result of the negligence of the occupiers of the premises, you may be entitled to receive a substantial award in damages in compensation for your injuries, losses and damages. But you need to prove that they are at fault in causing your injury.
Our client was a customer at the water slide facility on the day where he attended to a ride which had operational and procedural requirements which the staff did not comply with and as a result, he fell off the water slide and suffered a serious injury to his left clavicle and left shoulder. We were able to establish a professional negligence claim as a result of its staff not following the operational and procedural manuals in place in the operation of the ride in which our client was injured. We sued the water slide facility under the general principles of common law negligence, and also in tort and in contract pursuant to the australian consumer law legislation.
We provided liability and medical expert evidence to substantiate our client injuries, losses and damages. The water slide facility were ordered to pay our client a substantial award in damages in compensation as a result of its negligence and that of its staff in failing to comply with the operational and procedural manuals of the water ride in question which caused our client to suffer his serious injury whilst on their premises.
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