chief commercial officer
It is imperative that injured parties source credible and impartial evidence to confirm their story.
If photo or video evidence isn’t readily available, think outside the box.
Picture this: It’s a perfect, warm day. You take your boat for a drive and then head out to a popular swimming and fishing spot. You jump in the water with other swimmers and divers, ready to do some spearfishing. With your snorkel on and spear in hand, you look down for some fish. You’re bobbing in the water, waiting…waiting…
It sounds pretty relaxing.
Unfortunately, while doing precisely that, Jacques* was involved in a serious boating accident which changed his life forever. He suffered severe injuries and brought a claim for compensation.
Sadly, his struggle continued when the driver of the boat argued that Jacques was to blame.
Jacques needed evidence to back up his case. Thankfully, he found a unique type of proof that saved the day.
It was a beautiful and sunny morning when Jacques went out on his boat with his mate, Andrew. The pair headed out early and did some snorkelling off Moreton Island, before driving the boat to a new spot for some swimming and spearfishing.
The new spot was a popular fishing and diving area, and there was a large group of tinnies and divers in the area.
Andrew went swimming first, while Jacques manned the boat. While Andrew was in the water, Jacques put a dive flag in a holder on the side of his boat, to alert people nearby that someone was in the water.
Andrew hopped out of the water onto the boat, and Jacques jumped in to do some spearfishing. He took his speargun, which was attached by string to a hard plastic orange dive float. The orange dive float sat on top of the water, to signal that he was in the water nearby.
Jacques was only in the water for about 8 minutes when the accident occurred. He was floating in the water – snorkel on, face down – waiting for fish to appear. His head was bobbing at the surface, not far from his dive float.
Quite suddenly, a boat appeared in the distance. It was heading towards Jacques, and it was moving fast.
Andrew spotted the other boat and desperately tried to attract the attention of the people on board by yelling and waving his arms. Jacques was still in the water and hadn’t noticed the boat.
The boat was not slowing down. In fact, it was planing (moving on top of the water) due to its high speed. The driver of the boat appeared to notice Jacques’ dive float and veered slightly, but it wasn't enough.
BANG. The boat collided with Jacques.
Jacques injuries were horrific...
His injuries included:
As a complication, Jacques suffered a stroke resulting in dysphasia (a language disorder where speech and comprehension are affected).
He struggled to work and go about his daily activities. Jacques life changed forever.
Who was at fault?
The driver of the speeding boat?
Jacques brought a personal injury claim against the driver to compensate him for his injuries.
He claimed that the driver was negligent, by not driving safely in an area that was clearly being used by divers and other recreational boats.
The driver argued that Jacques was negligent, by not looking out for his safety and swimming too far away from the boat that Andrew was manning.
The driver also argued that Andrew was negligent, by not looking out for Jacques’ safety.
Was Jacques still in the swimming area? Did the driver drive through the swimming area? Was Jacques too far away from his boat? Did Andrew keep the boat close enough to Jacques? At What speed was the driver travelling? Did the driver take evasive action?
The questions all revolved around distance and speed, and the answers to these questions could make or break each party’s case.
How did Jacques prove the speeding boats was at fault?
Several witnesses came forward and offered their version of events. It quickly became apparent that many witnesses gave inaccurate estimates of distances, which is understandable.
Estimating the changing distances between moving people and objects is not an easy thing to do; and the water current, boat speeds and swimming speeds created a confusing scene.
Fortunately, one type of evidence was found that was very reliable.
Both Jacques’ boat and the other driver’s boat had GPS’s (global position systems), which recorded the paths of the boats.
A software engineer was able to download the GPS data and find out exactly what happened.
The GPS evidence, combined with witness evidence to fill in the gaps, helped the Court decide who was to blame.
The Court noted:
Who was negligent?
The driver of the speeding boat...
The Court found the driver was negligent because he:
The Court found that Jacques was not negligent, because he:
The Court found that Andrew was not negligent, because he:
Jacques reminds us to think outside the box when it comes to evidence collection
With technology growing faster than ever, it’s important to use it to our advantage.
The GPS evidence clarified what really happened, and helped Jacques succeed in his claim. If the GPS evidence wasn’t found, the Court would have had to rely on the dodgy witness evidence (which likely would have led to unfortunate result for Jacques).
Finding credible sources of evidence is essential to the success of a personal injury claim. The Courts weight evidence based on the likelihood it accurately tells the story.
Hence, plaintiffs frequently use video and photo evidence to prove their point.
Evidence can be hiding in all sorts of machines and technology. Jacques (and his lawyers) were smart enough to consider new types of independent and impartial evidence sources.
And as a result, they have paved the way for the use of GPS in cases such as these.
 Du Pradal & Anor v Petchell  QSC 261
* The names and narrative have been altered but the facts of the case in regards to payments, liability and the Judge's findings on the evidence are reported as written in the judgement.