Moreton Island boat too close, too fast: run-down diver wins $675k

Du Pradal & Anor v Petchell [2014] QSC 261

It was a perfect Sunday in June 2008 when the pair sped from Scarborough across the calm waters of the bay, for a morning of spearfishing at Cape Moreton.

Jacques Du Pradal skippered the 5.5 m Viking to a reef 2nm east of the lighthouse where he and dive companion Andrew Willsford began their snorkelling.

About the same time the pair had departed the mainland, a fishing party had embarked at Pacific Harbour on Bribie Island for fishing spot to the south of the divers’ position.

About 11am, the Viking headed in-shore for drift diving off Honeymoon Bay where another 10 or so boats were anchored.

Just before midday the wet-suited Du Pradal went over the side with spear gun in hand. He had placed the “diver below” flag in a fishing rod holder on the canopy and trailed an orange “warning” float attached to his weapon by 20 m of line.

At the moment he entered the water, the fishing party was approaching the bay from the east in a Haines Hunter vessel skippered by David Petchell.

Du Pradal bobbed along the surface as he drifted about 50 m away from his boat, looking down through goggles to sight a target at which he could take aim.

Willsford – who was by then back on the Viking having a sandwich – spotted the Haines approaching from the east when it was about 100 m distant. He began waving frantically to warn the approaching boat of the diver.

By analysis of GPS data, it was established that Petchell slowed the Haines from about 23 knots to 11 knots from a point about 150 m away, where he explained he had first seen the orange float.

Taking a line through a 40m gap between the Viking and a group of anchored vessels further inshore, Petchell thought the float was “for a crab pot”.

The occupants saw the bobbing snorkeller too late. They all heard the thud when their port bow struck and the sound of the diver bouncing along the underside of the hull as it drove over him until its rotating propeller began cuting into his abdomen and left leg.

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Reproduced with the permission of Carter Capner Law

NB: the discussion at [138] – [143] re: per quod servitium amisit.



David Cormack – Brisbane Barrister & Mediator

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