The claimant failed in her damages claim against the organisers of her overseas holiday for an injury to her elbow suffered on a ‘White Knuckle Jet Boat Thrill Ride’ excursion that she had signed up for whilst on a cruise. She failed in her allegations of negligence that, despite the fact that she was aware it would be a boat ride in which vigorous activities would be undertaken, the organisers of the excursion were liable for not giving her a seat harness and not padding the railing which injured her. The description of the excursion was explicit and, for instance, included the statement that the amazing tricks and manoeuvres would ‘have you involuntarily laughing and praying for your life’.

The court said that where a person voluntarily engages in a risky activity, or in a sport that involves some risk of injury, they cannot complain if they receive an injury in the ordinary course of pursuing that activity.

But just because a person signs up to participate in an excursion or activity which involves risk, it cannot be said that the participant thereby consents to the excursion operator acting in a negligent fashion towards them. A person consents to injuries that can reasonably be expected to occur in the ordinary course but not injuries resulting from negligence.

However the court found that there was no obligation to provide a harness or lap belt because that would increase the dangers of drowning if the boat capsized. There was no duty to provide an additional sidebar to hold onto as well as the bar in front of the passenger nor was the operator at fault for not providing padding on the side of the boat where the claimant knocked herself.

The fact that the precaution would have prevented or lessened the particular accident which occurred did not mean that the boat owner should have put it there in the first place. Just because a certain type of injury may be foreseeable does not mean that there is a duty to take steps to prevent that injury occurring because not everything that is foreseeable is likely. For liability, there must have been a failure to take reasonable care to prevent the injury.

This was an unfortunate injury which occurred in the course of a vigorous activity and no negligence was found.

The case is Kellett v RCL Cruises Limited.