‘Beyond me’: Judge questions why Matt Wright airboat crash lawsuits are not a class action

A Federal Court judge has questioned why victims of a horrific airboat crash involving Outback Wrangler Matt Wright’s tourism business are fighting separate legal battles in three Australian courts instead of a class action, declaring the situation was “beyond me”.

The Nightly can reveal the May 2023 crash has now spawned civil proceedings in three courts while Mr Wright, his wife Kaia and Top End Safari Camp are also locked in a legal battle with their insurer.

The Northern Territory crash occurred on May 10, 2023, during a corporate retreat attended by interstate families.

Thirteen passengers were on board the airboat that slammed into a tree in the Finniss River system near the Wrights’ Top End Safari Camp at Bynoe, south-west of Darwin.

During a Federal Court hearing on Friday, Justice Michael Lee raised concerns about the fragmented litigation.

“Why should three superior courts be dealing with similar matters?” he said.

“There’s a whole series of people affected by this accident. Why it’s not in a class action is beyond me.

“But assuming that it’s not a class action, why aren’t all the cases before me?”

Justice Lee suggested the respondents consider having the cases cross-vested so they could be heard together, saying the Federal Court had jurisdiction and could deal with the litigation “relatively promptly”, reducing the legal costs being incurred by all involved.

Eight members of two families — Ryan and Philippa Payne and their two children, and Scott and Bianca McFarlane and their two children — are suing Top End Safari Camp, Matt Wright and Kaia Wright in the Federal Court.

They are seeking damages, aggravated and exemplary damages and compensation under Australian Consumer Law.

Other passengers have launched separate proceedings against Top End Safari Camp in the NT Supreme Court and the Victorian Supreme Court.

Barrister Tim Smartt, counsel for the Federal Court applicants, told Friday’s hearing that claimants in the other jurisdictions had also suffered “very significant damages”, including injuries “in the nature of very serious brain injury”.

The Nightly has now obtained detailed pleadings in the Federal Court case revealing both the allegations surrounding the crash and a separate insurance fight over who could ultimately foot the bill.

The statement of claim also provides a graphic account of what the two families allege happened on the morning of the crash.

They had travelled to the Top End from interstate for the corporate retreat and were taken by bus to the waterway for a crocodile tour.

They claim the only safety information they received beforehand was that the airboat would be loud and they would be given earmuffs.

“When the applicants exited the bus, they were told to walk past two large crocodiles on the edge of the water and get into an airboat,” the statement of claim says.

They allege the driver, identified only as Anton, then began travelling “at high speed” through the waterways.

The applicants allege the vessel had no seatbelts, functioning radio or first-aid kit and there was no mobile phone reception in the area.

Towards the end of the tour, they claim the airboat rounded a bend and a large tree became visible about 200m ahead.

Anton allegedly continued travelling towards it at high speed.

The four adults initially thought he was joking and would swerve at the last moment, according to the claim.

When the McFarlanes realised a collision was imminent, they allegedly grabbed their two children and cradled them against their chests so they would absorb the impact.

At about 10.30am, the vessel smashed into the tree, splitting its front and leaving it stuck to the trunk.

The applicants described the aftermath as a “warzone”.

One woman suffered catastrophic head and facial injuries, too graphic to publish, while another drifted in and out of consciousness.

Passengers desperately searched for a first-aid kit or working radio but, according to the claim, could find neither.

The families say they were left terrified for themselves and their children, marooned aboard a broken vessel in crocodile-infested water with no way to summon help.

About 10 minutes after the collision, another airboat appeared and passengers waved it down.

But the vessel could not immediately take the injured passengers because it was already carrying tourists.

Its driver allegedly radioed the camp about the unfolding emergency, saying: “We screwed up — there’s a big crash, we screwed up.”

The boat returned about 25 minutes after the collision and eventually brought the group ashore.

“At this time, the employees of Top End Safari Camp had not made a decision about whether to call an ambulance for (two seriously injured passengers),” the claim states.

“Ultimately, Top End Safari Camp decided to call an ambulance for (those passengers).”

The claim alleges a helicopter ambulance arrived at 12.07pm, with the two seriously injured women loaded aboard at about 12.29pm — almost two hours after the collision.

The eight Federal Court applicants say they have suffered ongoing psychological problems.

They also allege physical injuries ranging from leg injuries and bursitis to severe bruising, knee swelling and lingering pain.

The applicants allege Mr Wright knew or ought to have known that taking tourists at high speed through crocodile-infested waterways was inherently dangerous and that he had displayed a “concerning and repeated disregard for safety” across his businesses.

Their claim relies on a series of earlier incidents and regulatory actions involving Mr Wright as part of its case, and alleges he should have subjected Top End Safari Camp’s operations to rigorous safety checks and stopped airboat tours until appropriate measures were in place.

Mr Wright, his wife and Top End Safari Camp strongly contest the allegations.

Their defence describes a large section of the historical allegations as “inflammatory”, “unproven” and irrelevant to the Federal Court proceedings.

The respondents admit an airboat collided with a tree but do not admit much of the applicants’ account of the lead-up to and aftermath of the crash.

They admit Anton drove airboats but deny he was an employee of Top End Safari Camp and say they are not vicariously liable for his actions.

They also contend there was “no requirement to have seatbelts on the airboat at the time of this accident”.

The Wrights deny personally owing the applicants the duties of care alleged against them.

The respondents have launched a cross-claim against Allianz Australia Insurance after it refused indemnity in relation to the passenger claims.

Allianz’s defence says Top End Safari Camp held a commercial hull insurance policy covering the airboat, Gale Force, but alleges Matt and Kaia Wright were not named insured parties and therefore were not personally covered for liability arising from passenger injuries.

More significantly, Allianz alleges Gale Force was certified by the Australian Maritime Safety Authority to carry one crew member and 12 passengers — 13 people in total.

It alleges there were 14 people aboard — the driver and 13 passengers — when the vessel hit the tree.

According to Allianz, operating above that limit breached Commonwealth maritime law, breached the policy’s licensing and registration warranty and triggered an exclusion for illegal operation.

The insurer says it was consequently entitled to avoid the policy.

Justice Lee questioned why the potentially pivotal insurance issue could not be determined rapidly, asking at one point why it could not be resolved “next week”.

He said the dispute potentially affected the viability of all three sets of proceedings and warned that “a vast amount of money” could be spent by numerous people on litigation when the insurance case might be capable of quick resolution.

Justice Lee has ordered the Federal Court proceeding, including the insurance cross-claim, to mediation before a court registrar, by September 28.

The matter will return before him on October 2.

The civil litigation is separate from criminal prosecutions brought by NT WorkSafe against Top End Safari Camp and Matt and Kaia Wright over the same crash.

Those matters return to the Darwin Local Court on October 1.