Lifesaver’s arm mangled, so judge heads for the beach
● A judge took off her robes and headed to the beach this week to do an inspection in loco of the shoreline and sea where a Durban lifesaver was struck by a ski boat, leaving one arm mangled.
But while Durban high court acting judge Lisa Mills was happy to get the sand between her toes, she has, for now, turned down a request that she familiarise herself with the conditions experienced by the skipper of the ski boat that day — by hitting the waves on a boat and beaching it through the narrow channel near Granny’s Pool on the popular Umhlanga Beach.
The damages claim being heard by Mills has been brought by 30-year-old lifesaver Sicebiseni Sizwe Xulu.
He is claiming about R4.5m in damages but at this stage the trial, which is continuing, is only focusing on liability.
Xulu says that on March 26 2017 he and a colleague were training in the bathing area in front of the Umhlanga Lifesavers Club when he was struck by the propeller of one of the outboard motors of the Poseidon, owned by local ski-boat enthusiast Craig Stubbs.
“I was the vice-squad leader on duty that Sunday. A colleague and I were doing surfswimming training in front of the lifeguard tower in the designated bathing area,” Xulu said in a statement that formed part of the pleadings in the matter.
“I saw a jet ski go in at Granny’s Pool. I never saw the boat. I ducked under a wave and when I came up the boat was in front of me. It was very close. And it hit me.”
Colleagues rescued him and he was taken to hospital. He now has extensive nerve damage to an arm. His claim is that Stubbs did not exercise the required duty of care when he beached that day.
He was aware that there were bathers in the water but had decided to head to shore regardless.
Xulu has also sued the Umhlanga Ski Boat Club, claiming its officials failed to properly monitor the ski-boat launch area and failed to clear the waterway of swimmers before authorising Stubbs to beach.
Both parties have denied negligence. Stubbs said Xulu was not in the designated bathing area when his boat struck the lifesaver.
Stubbs, in his application for the on-boat inspection in loco, said the main bone of contention was that Xulu claimed that he had been in the designated bathing area whereas he maintained that Xulu had swum into the designated boat-launch area.
To resolve this factually “it is important for the judge to be placed on a small craft in the sea”, said Stubbs.
“A court that is unfamiliar with boat launching may face the temptation to compare my conduct to that of a driver of a motor vehicle on a road and [Xulu’s] to that of a pedestrian.
“The environment of a sea launch is so fundamentally different.”
Xulu, through his lawyers, said a surf launch would not assist the court and the Granny’s Pool launch “is one of the most dangerous along the South African coast”, and could pose a danger to the judge.
He said the boat would have to be the same size as the one piloted by Stubbs.
The boat piloted by Stubbs could carry only four crew, including the skipper, and would be unable to accommodate the judge, all the legal representatives and experts, he added.
Mills ruled that she would not go on the boat, but left the door open should it become necessary at a later stage.