Propelling change to boating safety – $3.8 million US awarded

One thing as certain as death and taxes, is change to law, and while not all legal changes are palatable, they occur as a result of different catalysts. In the United States of America the most recent catalyst for change (pending an appeal) is the Texas case where Brunswick, the builder of Sea Ray and Mercury Marine was ordered to pay damages (money) and medical expenses due to a propeller striking a teenager’s leg causing it to be amputated.

A History of Tort Law

The law where a person has been wronged is known as “Tort” law and has its roots back in the famous case commonly known as the “snail in the bottle case”. This 1929 Scottish case heralded a change in modern law as Mrs Donoghue, who became seriously ill after drinking a bottle of ginger beer which she purchased at a cafe. She sued the manufacturer not the proprietor of the café. Previously the customer would have been expected to sue the shop keeper, rather than the manufacturer, from whom she had purchased the bottle creating a sales contract.

Legal reasoning

At this point in time you’re probably asking “What in hell does a Scottish snail have to do with a propeller in Texas”?

In the snail case the drink’s manufacturer was found liable for damages, as they had neglected to provide a system to protect the public in such a way that snails would not get into the said bottle rendering the ginger-beer dangerous and harmful. So is the above reasoning for the manufacturer’s negligence starting to sound familiar? As stated previously the significance of the snail case was the shift from a claim in contract to a claim in negligence and it is in this negligence where in lays the similarity with the Texas decision.

Deep pockets

After reading the Texas decision a reasonable question to ask yourself is why didn’t the injured skier sue the captain of the ship – well put simply its a question of “deep pockets”. The reality in any claim or pursuit of litigation is that no person or business is going to pursue a claim where there is little or no chance of damages being awarded. Therefore, in the Texas case it was obvious that Brunswick had deep pockets.

Balancing competing interests

The next step is to look beyond the captain of the ship, as did Mrs Donoghue, to who or what contributed to the wrong occurring and in Texas it was the manufacturer Brunswick who had built the vessel. The problem for the industry, to accept this decision, has been eloquently stated in many articles and are summarised as;

  • The impact (cost) on the industry in respect to design, manufacture and marketing;
  • Increased costs to power unit prices;
  • Changes to speeds, acceleration and steerage;
  • Restructuring of industry with certain sectors potentially being unsustainable due to any new manufacturing requirement.

There is however another side to the equation that is often overlooked or viewed as attack on industry being a question of protection of the public from dangerous or potentially dangerous machinery and negligence. It is the balance between the two competing needs of industry to save on costs and protection of the public that either self-regulation or government regulation seeks to address. Some examples of vessels through which change may occur to achieve this balance are:

Common law or judge made law: where cases are brought by injured parties against a defendant who if unsuccessful is ordered to pay damages. The cost of these claims, potential claims and/or increased insurance premiums over time have the effect of changing attitudes. However, often claims are settled on the doorstep of the court and no precedent is made. The problem with this vessel is that change is slow and reactive in that people need to be injured to make a claim.

Government or statute law: is reactive and change is slow as it is reliant on the political process with often the final legislation being so blunt a tool that the consequences have undesirable consequences to both industry and the public.

Market forces: where boat owners vote with their feet purchasing the safest products, however as designs with respect to propellers/ outboards have not changed significantly the market does not offer in this case any real alternative, thus not being the best or most responsive vessel for change to date.

Industry groups: may assist industry in making change which suites both industry specific needs and has the desired effect to reducing the incident of accidents. However, any decision made by these groups is not enforceable and industry must be a willing party to accept and embrace change.

Challenges for industry

The problem for the marine industry is that pressure will mount for change to occur as the number of injuries or deaths caused by propellers increases. A further issue that appears to have been overlooked by commentators criticising the Texas decision is that the boating culture is changing. The a-typical boat owner is a dying breed where once upon a time boat owners completed a life time apprenticeship knowing every aspect of their boat, today it is not uncommon to find prospective boat owners purchasing their first boat later in life as a result of many years of hard work and return on investments (putting aside the economic meltdown). Finally the number of vessels being sold into this affluent market has significantly increased. Therefore, it would not be unreasonable to surmise that the numbers of accidents occurring due to propellers will inevitably increase.

Debunking the hysteria

An important point to be addressed is that the decision in Texas courts jurisdiction does not create a precedent for our courts in Australian to follow. At best this decision offers little guidance to the courts with lawyers reference in their arguments being limited. Further, there are significant cultural, economic and legal differences that make the legal path in Australia different to that of the United States of America. However, as barriers in the open market economy dissolve these paths are slowly merging which means regulation and law will slowly merge. But for now the differences are significant with, for example, the enactment of the NSW legislation the Civil Liability Act 2002 that drastically changed the legal landscape for claims of negligence.

Section 50 for example limits a claim regarding ‘standard of care for professionals’ provided it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by its peers and providing the opinion is not irrational.

The enactment of the Civil Liability Act was in response to (I would argue a perceived) over litigated over awarded area of law which has had the effect of significantly reducing the size of damages paid and limiting the grounds of a claim with the effect of reducing the number claims being commenced. Therefore, it can be argued that there remain significant legal differences between Australia and the United States of America at this stage. In fact even the United Stated of America are not so united when it comes to the law as in some cases significant barriers exist between the individual states.

The propeller has over the years developed into an efficient form that transfers torque to forward propulsion. However, the fact remains that the propeller is the deadliest part of a vessel due to the moving blades, being exposed and easily accessible which, may result in death or serious injury at best. Despite warning signs being applied and education, accidents are still occurring as a search on the internet confirms in articles, forums and public interest groups. And while the Texas case may not set a precedent in our courts it certainly serves as a warning as to the future of propellers. The challenge and question for the industry is do we wait for more accidents to occur forcing governments to legislate change or does the industry take the initiative and develop a new system that limits the dangers caused by an exposed propeller?