A woman has lost her appeal over the dismissal of her damages action for elbow injuries suffered during a “White Knuckle Jet Boat Thrill Ride”, involving 360-degree turns in the ocean.
In judgments on Thursday, a three judge Court of Appeal dismissed the appeal by Siobhán Kellett over the High Court’s rejection of her case.
Mr Justice Seamus Noonan said, at the end of the day, as stated by the High Court judge who dismissed the case, this was unfortunately an injury that simply occurred during the course of a vigorous activity.
It could not be suggested Ms Kellett’s experience was other than what she signed up to, he said.
“Even a cursory viewing of the promotion material for this boat ride showed that the passengers could expect to be subjected to significant forces and impacts which might result in bumps and bruises. It would be entirely unreasonable to suggest that such without more, could give rise to liability on the part of the operator,” he added.
Ms Kellett, a dancing teacher, had sued after fracturing her elbow during the jet boat shore excursion from a seven-night €3,674 Caribbean cruise to celebrate her 50th birthday and silver wedding anniversary.
She said she was thrown out of her seat and banged her elbow against the metal side of the jet boat during two 360-degree manoeuvres of the White Knuckle Boat Ride, a pre-booked excursion taken by herself and her husband after their cruise ship docked at St Maarten in the West Indies.
Ms Kellett (53), Rockfield Green, Maynooth, Co Kildare, had sued British company RCL Cruises Ltd of Weybridge, Surrey, as operator of the cruise ship Freedom of the Seas and with alleged responsibility for the excursion called “The White Knuckle Boat Ride”.
She also sued Panther Associates Ltd, trading as Tour America, Middle Abbey Street, Dublin, where she booked the April 2016 holiday.
No liability
In the High Court , Mr Justice Anthony Barr said he could not find Ms Kellett’s injury happened as a result of any negligence on the part of the excursion operators in relation to the condition of the boat and he could not find any liability on the part of the defendants.
Ms Kellett was not able to keep herself seated as she had been instructed to do and as a result she injured herself. Unfortunately, it was simply an injury which occurred in the course of a vigorous activity, he said.
In his COA judgment dismissing Ms Kellett’s appeal, Mr Justice Noonan said he could not accept Ms Kellett’s argument the onus fell on the cruise operator and travel company to demonstrate compliance with local regulations as that would mean reversing the burden of proof.
The High Court correctly found Ms Kellett had failed to discharge the requisite onus of proving that the service had been provided without reasonable skill and care when judged against applicable local standards, he said.
The High Court also correctly held, by any relevant Irish standard, he still could not find a breach of duty by the cruise operators and travel company.
Mr Justice Noonan agreed with the trial judge his was unfortunately an injury that simply occurred during the course of a vigorous activity.
The trial judge had identified the appropriate legal test and correctly applied it to the facts of the case, he held.
Mr Justice Robert Haughton and Mr Justice Maurice Collins, in separate judgments, agreed the appeal should be dismissed.