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The drivers of a speedboat and jet-ski which collided in St. Brelade’s Bay nearly five years ago are both responsible for the crash that left a local lawyer's leg "hanging off by a thread", the Royal Court has ruled.
In a judgment handed down today, the Court said the driver of the speedboat, Michael Dorynek, and the jet-ski driver, Tyson Flath, bore 60% and 40% of the responsibility for the crash as they both failed to keep a lookout.
The crash happened in June 2017, with victim Giles Corbin initiating legal proceedings in 2019 seeking damages against both men for the "life-changing" injuries he had suffered.
In addition, Mr Flath brought proceedings against Mr Dorynek seeking damages for negligence in respect of the injuries which he also suffered.
Mr Dorynek was the only of the two drivers to face criminal proceedings over the collision, being fined £5,000 for driving his speedboat without due care and attention in 2019.
However, Mr Corbin argued both drivers showed “negligence or breach of duty” which he says not only caused the crash, but also the damage to his leg that could have resulted in amputation.
Pictured: Giles Corbin was injured in the collision.
The case was heard over seven days in early October. Shortly before the hearing, Mr Dorynek admitted liability to both Mr Corbin and Mr Flath on the basis he had failed to keep a proper lookout. He also abandoned a plea of contributory negligence against Mr Corbin.
The case therefore focused on whether Mr Flath had also been negligent and, if so, how much of Mr Corbin’s claim they would each be liable to and the level of contributory negligence on the part of Mr Flath in relation to the claim brought by him against Mr Dorynek.
In a tearful account before Court, Mr Corbin, who was riding on the jet-ski with Mr Flath, said on the day of the incident the sea was calm and nearly flat and that “it was a beautiful day to be out on a boat.”
He said he had only become aware of the speedboat when he heard “high-pitched” screams coming from it, after which he felt “brutal impact” on his body and heard a loud bang, which left his ears ringing, before being thrown at least three metres off the jet ski.
He said he realised “pretty quickly” he had been injured when he saw a “red wash” in the water and a “bright white femur end” where his kneecap should be. He explained the impact had shattered his kneecap into several pieces - some of which were never found.
Both Mr Dorynek and Mr Flath denied responsibility for the crash in Court.
Advocate Christina Hall, representing Mr Dorynek, said Mr Flath had failed “entirely to give way” and was completely to blame.
Meanwhile, Mr Flath’s lawyer, Advocate Simon Franckel, said that due to Mr Dorynek’s failure to have even the “most basic appreciation of what he should be doing” he was never in a position to deal properly with seeing the jet-ski and that, as a matter of “good seamanship”, a significantly higher proportion of the blame should lay with Mr Dorynek.
The Court also heard from naval architects and seamanship experts hired by all parties in the case.
The Court concluded that the collision would not have occurred if either Mr Dorynek or Mr Flath had kept a proper lookout.
They found Mr Flath had been “negligent” by failing to keep a proper lookout, especially given that the bay was busy. They found this negligence had been “causative” of the crash as he had himself accepted he would have “stopped, altered course or turned away” if he had kept a proper lookout.
“We have no doubt that, had he kept a proper lookout, he would have seen the Speedboat in time to take action so as to avoid the collision,” the Court wrote in its judgment. “In other words, but for his negligence, the collision would not have occurred. “
Given that both Mr Dorynek and Mr Flath failed to keep a proper lookout and that this was the cause of the collision, the Court said it was certainly strongly arguable, that responsibility should be allocated equally between them, as Advocate David Benest had submitted on behalf of Mr Corbin.
However, they said it was important to take into account the collision had taken place in a crossing situation in which the speedboat was under duty to give way.
“It is particularly important that a helmsman keep a lookout for vessels to which he may have to give way,” the Court wrote.
“It is also clear that Mr Dorynek was ignorant of this Rule and believed that the bigger vessel had the right of way. Furthermore, on his evidence, he had seen the Jet Ski earlier and should have been alerted to the need to keep a lookout for its whereabouts. In our judgment, these matters increase his level of responsibility.”
They concluded that, “having regard to the degree of fault or blameworthiness on each side and the causative effect of each party’s negligence”, a fair allocation was to attribute 60% of the responsibility to Mr Dorynek and 40% to Mr Flath.
In relation to Mr Flath’s claim against Mr Dorynek, the Court concluded Mr Dorynek was liable to Mr Flath, but with a finding of 40% contributory negligence against Mr Flath.
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