Laoulach v El Khoury [2010] NSWSC 1009 (16 September 2010)

Last Updated: 17 September 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Laoulach v El Khoury [2010] NSWSC 1009


JURISDICTION:


FILE NUMBER(S):
2007/265236

HEARING DATE(S):
31 May 2010 1 June 2010
2 June 2010 3 June 2010
7 June 2010 8 June 2010

JUDGMENT DATE:
16 September 2010

PARTIES:
Robert Laoulach - Plaintiff
Robert El Khoury - First Defendant
Danny Ibrahim - Second Defendant
Charbel Ibrahim - Third Defendant
Mickey Beaini - Fourth Defendant

JUDGMENT OF:
Price J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Mr B Dooley SC + Mr G Hickey (Plaintiff)
Mr R Cavanagh + Mr C Purdy (Defendants)

SOLICITORS:
Slater & Gordon (Plaintiff)
Sparke Helmore (Second, Third and Fourth Defendant)


CATCHWORDS:
NEGLIGENCE
Civil Liability Act 2002
dive from a vessel causing serious injury
whether duty of care
whether breach of duty
whether risk was an 'obvious risk'
whether dive was a 'dangerous recreational activity'
whether Limitation of Liability for Maritime Claims Act applies
whether vessel a 'seagoing ship'

LEGISLATION CITED:
Civil Liability Act 2002 s 5B, s 5C, s 5F, s 5G(1),
s 5H(1), s 5J, s 5K, s 5L, s 5R, s 51(1), s 51(2)
Convention on Limitation of Liability for Maritime Claims 1976
Limitation of Liability for Maritime Claims Act 1989
Marine Safety Act 1989 s 4
Uniform Civil Procedure Rules 2006 r 31.29(3)
Vienna Convention on the Law of Treaties 1969

CATEGORY:
Principal judgment

CASES CITED:
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Berrigan Shire Council v Ballerini [2005] VSCA 159
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
China Ocean Shipping Co v South Australia (1979) 145 CLR 172
Fabre v Arenales (1992) 27 NSWLR 437
Fallas v Mourlas [2006] NSWCA 32
Falvo v Australian Oztag Sports Association [2006] NSWCA 17
Jaber v Rockdale City Council [2008] NSWCA 98
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Laoulach v El Khoury [2010] NSWSC 595
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Perry v Harris [2008] EWCA Civ 907
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
Salt Union Ltd v Wood [1893] QB 370
Shaw v Thomas [2010] NSWCA 169
Smith v Perese [2006] NSWSC 288
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Swain v Waverly Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Union Steamship Co of New Zealand Limited v The Commonwealth [1925] HCA 23; (1925) 36 CLR 130
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

TEXTS CITED:
Davies, M and Dickey, A, Shipping Law, 3rd ed, 2004.

DECISION:
1. Verdict and Judgment for the second, third and fourth defendants as against the plaintiff.
2. The plaintiff is to pay the costs of the second, third and fourth defendants on an ordinary basis up until 3 May 2010, and thereafter on an indemnity basis.



JUDGMENT:

- 73 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

PRICE J

16 September 2010

2007/265236 Laoulach v El Khoury

JUDGMENT

1 HIS HONOUR: On 30 November 2004 the plaintiff, Robert Laoulach, was a passenger on a Mustang 2800 sports cruiser. Whilst the sports cruiser was moored in Botany Bay, the plaintiff dived from the bow of the vessel and his head struck the sandy bottom of the bay. He suffered a significant fracture of the C 5 and consequent tetraplegia.

2 The plaintiff by a statement of claim dated 26 November 2007 commenced proceedings in which he alleged that his injuries resulted from the negligence of the four defendants. An amended statement of claim was filed on 31 May 2010.

3 During the trial, the claim against the first defendant Robert El Khoury, who was the owner of the sports cruiser, was discontinued. Accordingly, any reference in this judgment to “the defendants” is to be taken as collectively referring to the remaining defendants. The second and third defendants, Danny Ibrahim and Charbel Ibrahim respectively, are the plaintiff’s cousins and were on board the vessel at the time of the accident. The fourth defendant Mickey Beaini was also a member of the boating group. The plaintiff claims that at all relevant times the sports cruiser and those aboard it were under the control of the defendants and that he was reliant upon their expertise for his safety (pars 3-4 amended statement of claim).

4 The negligence of the second, third and fourth defendants is particularised as follows:

“(a) Failure to advise the plaintiff of the risk of injury.

(b) Failure to have reasonable care for the safety of the plaintiff.

(c) Failure to assess if the area was safe for diving.

(d) Failing to adequately secure the vessel to ensure the vessel did not drift.

(e) Failure to inform the plaintiff that Mickey Beaini had struck his shoulder when diving

(f) Failure to warn the plaintiff the vessel could drift and take caution when diving

(g) Failure to observe that the vessel had drifted closer to shore.

(h) Failure to judge the extent of rips, currents and the effect of movement of the vessel.

(i) Failure to move the vessel to a safer location.

(j) Failure to instruct the plaintiff on the vessel as to the safe means of entering the water.

(k) Failure to use a marker on the beach to orientate

themselves to judge the position of the vessel

(I) Failure to use the depth sounder of the vessel to ascertain the depth of water.

(m) Failure to monitor the position of the vessel.

(n) Failure to use any method to measure the depth of the water.

(o) Failure to make reference to any waterways maps of the area.

(p) Judging the depth of the water by vision only.

(q) Entering the water west of an east cardinal mark placed on the eastern shore at Brighton-Le-Sands.

(r) Mooring the vessel in a position which was unsafe to do so.

(s) Mooring the vessel in water that was too shallow.

(t) Mooring in an area that was prohibited for power vessels.

(u) Mooring west of the rescue mooring buoy.

(v) Failed to warn the Plaintiff that the vessel would swing.

(w) Failed to ensure that it was safe to dive from the vessel even when it swung on the mooring.

(x) Failed to allow for the wind when mooring the vessel.

(y) Failed to make allowance for any wind shift whilst

moored.

(z) Failed to adjust the mooring when the wind shifted so

as to ensure the vessel remained anchored in water sufficiently deep to allow diving from the vessel.

(aa) Failed to make allowance for the tide change whilst

moored.

(bb) Failed to adjust the mooring when the tide changed so

as to ensure the vessel remained in sufficiently deep water to allow diving from the vessel.

(cc) Allowed the Plaintiff to dive from the vessel in the

circumstances.

(dd) Failed to plot the vessel on the chart plotter so as to

ensure the water was deep enough to moor in.

(ee) Failed to plot the vessel on the chart plotter at all.

(ff) Failed to read and follow charts of the area.

(gg) Failed to set anchor alarms, by chart plotter, by radar and by depth sounder.”

5 In their amended defences each dated 22 April 2010, the defendants deny the particulars of negligence and deny liability for the plaintiff’s injuries. In answer to the plaintiff’s claim that the defendants ought to have warned the plaintiff of the risk of injury, each defendant pleads that that risk was obvious in terms of s 5F(1) Civil Liability Act 2002 and by reason of s 5H(1) Civil Liability Act each defendant denies that he owed the plaintiff a duty to warn of the risk. Additionally each defendant pleads that if negligence is found, then the plaintiff voluntarily assumed the risk of injury from diving. The particulars of voluntary assumption of risk include that the risk that eventuated was ‘obvious’ in terms of s 5F(1) Civil Liability Act and, by the operation of s 5G(1) Civil Liability Act, the plaintiff is presumed to have been aware of it. Each defendant further pleads that if he was negligent, the plaintiff’s injuries were caused by the materialisation of a risk inherent in diving in the circumstances alleged, in terms of s 51(2) Civil Liability Act for which liability is excluded by s 51(1); alternatively by the materialisation of an obvious risk of a dangerous recreational activity in terms of s 5K for which liability is excluded by s 5L(1) Civil Liability Act. Contributory negligence is also pleaded. The defendants each assert that the Limitation of Liability for Maritime Claims Act 1989 (Cth) applies.

6 On the fourth day of the trial, the parties agreed upon the assessment of damages in the sum of $8 million. The issues of liability, contributory negligence and any limitation under the Limitation of Liability for Maritime Claims Act remain to be determined. The plaintiff was represented by Mr B Dooley SC with Mr G Hickey and the defendant by Mr R Cavanagh with Mr C Purdy.

7 The questions of breach of duty, causation and contributory negligence are governed by the Civil Liability Act – in particular ss 5B, 5C and 5R: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 at [27]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364. The onus of proof is on the plaintiff on the balance of probabilities.

The factual dispute

8 It is not in dispute that the plaintiff was grievously injured when he dived from the sports cruiser. The plaintiff invites me to make the following findings of fact.

“(i) All three defendants drove and controlled the motor vessel from time to time. The fourth defendant drove and controlled the vessel at the first point of mooring opposite the Novotel, Brighton-Le-Sands.

(ii) That due to the wind conditions and a sandy bottom, and after a short period of time the boat moved closer to the shore and hence a reduction in the water depth below the boat to make it unsafe for diving and it was determined by the fourth defendant to move the vessel.

(iii) The second and fourth defendants then undertook the movement of the vessel for the sole purpose of diving safely to a position where the water was deep enough to move.

(iv) That due to the wind conditions and sandy bottom, the boat dragged the anchor and moved closer to the shore so that the depth of water underneath the boat at the bow was less than 2 metres at the time the plaintiff dived in and sustained injury.

(v) In the alternative, that the second and fourth defendants extended the anchor line or chain which allowed the vessel to drift back towards the beach (due to the wind) so that the vessel was allowed to drift into a position where the water depth became unsafe for diving, that is, in this case less than 2 metres.

(vi) None of the defendants warned of the possibility of the vessel moving from its second anchoring position.”

9 As these findings of fact are disputed by the defendants, it is necessary to review the evidence in some detail.

A review of the evidence

10 Other than by his own evidence, the plaintiff sought to prove his case on liability through the evidence of his brothers Badui and Sam Laoulach and a report dated 22 April 2009 from Peter Burge, a consulting marine engineer and marine surveyor.

11 For ease of identification and without in any way being disrespectful I will refer to some of the witnesses and parties, other than the plaintiff, by the names by which they are commonly known when I summarise parts of the evidence.

12 The plaintiff’s evidentiary statement is Exhibit C. On 30 November 2004, the plaintiff was asked by his brother Badui Laoulach (Buddy) if he would like to go for a test drive of a motor boat that Buddy was considering buying. Buddy told him that his brother Sam, his cousins Danny and Charlie Ibrahim and his friend Mickey Beaini were also going. The plaintiff and Buddy were picked up from the Moorebank jetty at approximately 12.30pm. Mickey, Danny, Charlie and Sam were already on board the vessel when it arrived at the jetty. According to the plaintiff, Danny, Charlie and Mickey had agreed to pick up the vessel “as they were the only persons with boat licences.”

13 The plaintiff recounted that all of them then travelled from Moorebank to Brighton-Le-Sands with Mickey, Danny and Charlie alternating as drivers.

14 During cross-examination the plaintiff’s testimony on this topic included the following (T 32 L 34-50; T 33 L 1-8):

“Q. Do you say that Danny drove the boat the whole way from where you were picked up at Moorebank until it was anchored for the first time at Brighton?

A. There was one point where I did see him change and Mickey took over.

Q. What about Charlie?

A. I never - I never - from my recollection Charlie might have, but I can't be specific and certain about Charlie driving the boat.

Q. When you say Charlie might have, is it that you think he might have driven it at some stage, but you're just not sure when he was driving it?

A. There was one stage where I did go to the bottom of the cabin and I came back up, so when I came back up Danny was still driving the boat. Whether they changed in that turn, I can't recollect.

Q. Are you saying that to the best of your recollection today you don't believe that Charlie ever drove the boat on that day after you were picked up at Moorebank?

A. Can you repeat the question, please?

Q. Yes. To the best of your recollection you don't recall observing Charlie driving the boat at any time whilst you were on the boat?

A. No.

Q. So you're saying you don't recall seeing him drive the boat?
A. No, I don't recall Charlie driving the boat, no.”

15 The plaintiff stated that the vessel arrived at Brighton-Le-Sands at about 1.30pm and was moored approximately 40 metres from the shoreline. He could see “a yellowness in the water, that is, the sand underneath the boat”: ex C par 24.

16 Charlie, Mickey and Danny, began diving from the boat’s bow. As he could see the ocean bottom, the plaintiff initially entered the water from the bow of the boat, feet first, to check its depth: ex C par 26. In cross-examination, the plaintiff said that he had entered the water from the back of the vessel and not the bow as he had got them mixed up. Having gone in feet first he then let himself drift down to the bottom. The plaintiff described the water as being deep so that when he had his feet on the sand and his hands fully extended, he was still below the water line. The bow of the boat was pointing away from the beach and the water appeared to the plaintiff to be getting deeper as it got further from the beach.

17 In cross-examination, the plaintiff gave the following evidence (T45 L 43-50; T 46 L 1-4):

“Q. Did you do that, that is enter the water that way, because you were concerned to make sure how deep the water was?

A. That's just my initial reaction that I had - because I was sitting at the back and I just jumped in feet first. I wasn't diving in at that point.

Q. Well, you were aware at that point that there was a risk associated with diving into the water, is that right?

A. No, I wasn't aware.

Q. You didn't think there was any risk at all associated with diving into the water?

A. Diving in unchartered waters is always a risk, I know that.”

And (T 46 L 44-47):

“Q. Is the reason that you entered the water in the way in which you say you did, that is feet first, because you were aware that there was a risk of injury if you just dived into water without checking out the depth?

A. The reason why I went in feet first is because I could see the bottom.”

And further (T 47 L3-21):

“Q. And one of the things you considered important was to check out

the depth before you dived in, is that right?
A. That's correct.

Q. And you were aware that there would be a risk of serious injury in fact if you dived into water of uncertain depth?

A. That's right.

Q. On this first occasion, what did you do to determine the depth of the water before you entered it, that's at the first point?

A. The first point when I jumped in with my feet first, I could see the sand - I could see - I could see the sand so I jumped in feet first and I let my feet touch the bottom.

Q. What was significant in your mind about being able to see the sand?

A. That it would be shallow.

Q. Is that why you jumped in feet first?
A. It would be.”

18 The plaintiff recounted that after a period of time there was a discussion about moving the boat. Mickey and Charlie told him and Buddy that Mickey had hit his shoulder diving and it was now too shallow “so they had decided to move the position of the boat to allow everybody to keep diving and swimming safely”. In his oral testimony, the plaintiff recalled that Mickey said “we need to move the boat to a safer depth” because he had hit the bottom and hurt his shoulder from diving.

19 The plaintiff recalled that when Mickey commenced driving the boat, Danny was standing on the bow, directing and preparing to lower the anchor. The vessel was moved some 15 to 20 metres further out to sea. The plaintiff described the water at this stage as being a dark blue colour. The boat stopped where Danny had indicated that it should and Mickey threw the anchor in. The plaintiff stated (ex C pars 33-41):

“There were a number of other small boats nearby the shore that were doing much the same as we were, that is, either picnicking or swimming.

Having reached the position of the dark blue water, we were some 10 metres furthest from shore than any other vessel.

I believe three of the boys dived in off the bow and after a period of time I also dived off the bow. The bow continued to point towards the open ocean, that is, in an easterly direction.

After I dived in the first time, I swam to shore as did some of the other boys.

I noticed that as I swam into shore that the water level gradually reduced as we got closer to the sea. The sand was even in that the seabed appeared to be flat and gently slopping.

When I swam back to the boat, I observed the deep blue water as we got closer to the boat and it appeared that it got to a point where we were unable to determine where the bottom was. I had assumed that having earlier gone into the water and extended fully downwards that the depth where the boat was moored was significantly greater water underneath the boat than the previous position.

After returning to the boat I was talking with Buddy at the back of the boat when the others dived back into the water. A few minutes later I dived into the water into what I believed was the same area I had seen the others dive, and which I had previously dived myself.

As the time progressed the wind picked up so that the visibility of the ocean was not as good, however, it still seemed to be dark blue.

As I dived into the water I felt my head strike the sand and, at the same instant, heard a loud crack from my neck or back. I did not lose consciousness after the initial impact and can recall lying face down in the water unable to move any of my limbs. I believe that I had dived approximately 2 metres before I struck the sand.”

20 When cross-examined on the first dive, the plaintiff gave the following evidence (T 57 L32-50, T 58 L1-32):

“Q. Well, then, going back to when you dived into the water to swim to shore, did you look at the water, that is, as you were standing on the edge of the boat about to dive in, did you look into the water?

A. We all were together at the front of the boat. Everybody dived in before me and I dived in straight after them.

Q. Yes, but did you look at the water?
A. It was dark.

Q. I'm sorry to press you, Mr Laoulach, you did look at the water, didn't you?

A. Well, I had to look where I was diving.

Q. This is before you actually dived in, and what did you notice about it?

A. I couldn't see sand.

Q. It was dark, you said before?
A. Yes.

Q. So you dived in?
A. That's correct.

Q. Was it important to you that the water was dark?
A. It was important that I couldn't see the sand and it was dark.

Q. That was because you--

A. And having observed four other people dive in front of me, it was safe to dive in. They reassured me.

Q. The fact of them diving into the water reassured you, is that what you're suggesting?

A. Mickey pointed out from the water dive it was safe to dive in.

Q. Mr Laoulach, that didn't happen at all, did it?
A. Mickey reassured me that it was safe to dive.

Q. Mickey did not say anything to you having dived in the water about it being safe to dive in, I suggest to you?

A. From the water he did.

Q. Well, you formed your own judgment though, didn't you?
A. No.

Q. Mr Laoulach, you must have formed your own judgment before diving into the water?

A. Well, I had a presumption it could be safe, but I was reassured it was safe to dive.

Q. Are you saying you didn't give any consideration at all as to whether it was safe to dive into the water before you dived off the front of the boat?

A. I did look at the water and there was no sand and it was dark water and I was reassured it was safe to dive.”

21 On the subject of the second dive, the plaintiff gave the following evidence in cross-examination (T 59 L 45-50 - T 60 L 1-21):

“Q. Did you observe any of the other men diving into the water after they'd come back from the shore and got back into the boat but before you dived in again?

A. The second time, no, I didn't observe them.

Q. So on this occasion before you dived in - we will call this dive number two, being the injury dive just so we understand?

A. Yep.

Q. The injury dive, before the injury dive, what steps did you take to see if it was safe to dive into the water?

A. I presumed I was diving from the same spot.

Q. Well, did you look at the water again?

A. I saw the boys in the water and I looked at them and I dived in presuming they're in there and they're safe, so I'd be safe as well.

Q. Did you dive off the same spot as you dived off on the first occasion?

A. Presumably where I thought I dived off, yes, the same spot.

Q. It was up the front of the boat again?
A. It was up the back or the front.

Q. The anchor was still further out to sea?
A. I don't know where the anchor was.

Q. The boat was still facing out to sea, that is the front was facing out to sea and the back was facing the shore?

A. I can't recall.”

22 And further (T 62 L 10-44):

“Q. You couldn't see the bottom?
A. I couldn't see the bottom.

Q. You weren't sure then how deep the water was?

A. I was presuming it was the same depth as when I first dived into it so I don't know how else to answer that question.

Q. You weren't sure how deep it was when you dived in on the injury dive; you weren't sure how deep the water was, is that right?

A. It was dark so I presume it was the same depth as - it wasn't - it wasn't shallow.

Q. So you followed these other men in within, what, seconds of them diving in or minutes of them diving in? Which was it?

A. Well, I could see them and they were - I was at the front of the boat and the first dive we all dived in together but the second dive we didn't all dive in together because I was at the back talking to my brother so when I came to the front of the boat, they were already in the water and they were more or less telling me, you know, I was - I was poised for a minute and I - you know, they were already in the water. I wasn't going to dive and they were telling me to jump in so I dived in.

Q. You say they were telling you, to use your words, jump in?

A. Well, they saw me standing at the front of the boat so it's like you know, "Come on, jump in, dive in".

Q. What was it, jump or dive?
A. Dive. Well, dive.

Q. You don't really remember that, do you?

A. No, it wasn't jump because we were diving. If it was jump, I would have jumped.

Q. You don't really remember that occurring, do you?
A. I do remember that.”

23 And further (T 109 L 41-48; T 110 L 1-29):

“Q So are you saying you noticed that the visibility of the water between your first and second dive at the second point had deteriorated?

A. The water was darker in the first dive than the second dive.

Q. You noticed that before you made the second dive, Mr Laoulach, is that right?

A. I did.

Q. And you still dove into the water, didn't you?

A. I still dived into the water to what appeared to be the same when I dived in the first time.

Q. Are you saying, are you, that you'd noticed the water had got a bit lighter between your first and second dive at the second point, is that right?

A. It appeared to be just a slightly little different but it was still dark blue.

Q. Isn't it the fact that you had difficulty determining the depth of the water just before your second dive?

A. I presumed it was the same depth as the first dive.

Q. But you did have difficulty assessing the depth of the water before your second dive, didn't you?

A. I didn't assess the water. I presumed it was the same spot I was diving into, so I didn't presume I was assessing.

Q. You agree, don't you, that as the wind picked up it made it more difficult to see through the water?

A. It might have been slightly, but it wasn't.

Q. And that's because the water was a bit more choppy?

A. Slightly.

Q. So by the time of your second dive you had difficulty seeing through the water, didn't you?

A. On my second dive I didn't sit there and make - I just sat there looking to see whether it was shallow or deep. I presume it was the same spot I'd dived into the first time.”

24 Badui (Buddy) Laoulach’s evidentiary statement is ex G. Buddy gave evidence that he had contacted the first defendant, the owner of the boat, as he was considering purchasing it. The first defendant suggested that he take the boat out for a test drive. He informed the first defendant that he did not have a boat licence and the first defendant suggested that he should get someone with a boat licence. Buddy contacted Danny, Charlie and Mickey “because they were licensed boat drivers.” He asked Danny, Charlie and Mickey “if they would not mind coming out for the day and test driving the boat for him as the owner of the boat...requested [him] to ensure that a licensed driver operate the boat.” He had spoken to Charlie, Mickey and Danny on the morning of the accident to ensure that they were all coming to drive the boat. He said that he needed licensed drivers. In cross-examination he recalled that Mickey and Danny were taking turns driving the boat between Moorebank and Brighton-Le-Sands and he did not see Charlie driving the boat at all. When he was collected at the Moorebank wharf, Danny was the person who picked him up and it was Danny who was driving when the boat was moored on the first occasion at Brighton-Le-Sands.

25 The boat was moored approximately 30 metres from the shore. He recalled being opposite the Novotel Hotel. There were other boats moored in front of their boat towards the shoreline and the boat was the furthest out to sea. In cross-examination, he said at the point where the boat was anchored, the water looked “pretty dark and clear.”

26 Buddy observed “a number of the boys diving and jumping into the water from the boat” primarily off the bow. When the plaintiff first entered the water, he did so from the stern. He stood on a timber platform and then hopped in. Buddy could not recall whether he sat down first or not, and went in feet first. He then came out.

27 Buddy recalled Mickey coming out of the water and saying words to the effect “I have just hit myself on the bottom, I’m going to move the boat because it’s getting shallow”. Mickey was climbing out of the water onto the timber landing at the stern. The plaintiff was sitting next to Buddy in the stern at that time. Mickey then started the boat and moved it further out. He recalled that Danny was with Mickey at the time the boat was being moved. Danny then went to the front of the boat, Mickey then called out to Danny, “that’s deep enough”, the boat was idled, the anchor released and, he assumed, was secured. Buddy thought that the boat may have been moved 20-30 metres further out from the shoreline. Buddy recalled all of the others were diving into the water and swimming around the boat. He had been making phone calls and was the only one left on the boat. They then, came back on the boat for a period of time before going for another swim. All of the others were in the water when the plaintiff dived in. The next thing he heard was someone yell out “what’s wrong with Robert.”

28 In cross-examination, Buddy said that he did not see the plaintiff dive off the boat at the first point but saw him twice dive off the boat at the second point. He dived from the same spot as the other fellows and it was on the second dive that the plaintiff was hurt.

29 Buddy described the wind coming up little bit towards the afternoon. On this topic, he gave the following evidence (T 124 L 39-50 - T 125 L 1-40):

“Q. Pardon?
A. It was windy towards the afternoon a little bit.

Q. Did that have some effect on the smoothness of the water?
A. I don't remember.

Q. Did it make it more difficult to see through the water?
A. Yeah, you can say that.

...

Q. Did that make it more difficult to see through the water?
A. The wind?

Q. Yes?
A. It would probably would have.

Q. Did you notice it yourself?
A. I can see from the boat it was a bit dark.

Q. What about the surface of the water? Did you notice anything about the surface of the water?

A. Not really.

Q. You observed though that at the second point, all the boys, as you described them, were diving off the same position of the boat?

A. That's correct.

Q. And the front of the boat was facing out to sea?
A. That's correct.

Q. And it had been anchored in that way, that is with the anchor in front of the boat?

A. That I can remember, yeah.”

30 And further (T 126 L 5-13):

“Q. You had been sitting on the boat while the other blokes went in for a swim?

A. That's correct.

Q. Into the shore?
A. Yes.

Q. And whilst you had been sitting on the boat, you hadn't noticed it moving at all?

A. No.”

31 Sam Laoulach’s evidentiary statement is exhibit H. Sam gave evidence that Buddy asked him to contact Danny, Mickey and Charlie. He asked them if they would mind test-driving a boat for Buddy. Before the plaintiff and Buddy were picked up at Moorebank at approximately 12.30pm, they had cruised around in the boat for an hour. The trip from Moorebank to Brighton-Le-Sands took approximately 45 minutes. It was either Danny or Mickey who drove the boat although Charlie did some driving but only for a short time. The boat was moored approximately 40 to 50 metres off the shore at Brighton-Le-Sands and they decided to have a swim. As best he could recall, Danny was standing on the bow and Mickey had been driving. He and Mickey dived from the bow. He saw the plaintiff in the water but did not see him dive in. Mickey dived in and said something like “the water is too shallow. I’ve just hit my shoulder on the bottom.” They had remained at the first location for approximately ten minutes.

32 Sam recounted that they got back into the boat and Mickey said to Danny words to the effect “take the anchor off, I am going to move the boat.” The boat was “originally in light blue water” and then the boat was driven by Mickey “back to where the water was a lot darker.” Danny put out the anchor. Sam said that Mickey was driving and Danny was on the bow. Danny said, “that’s far enough”. Danny was looking into the water when he said that and Mickey indicated to him to drop the anchor which he did.

33 Sam recounted that they jumped and dived off the boat, swam, came back on board, sun-baked and then swam again. They were mostly diving from the bow which, as it did at the previous location, continued to point towards the “open ocean or in that general direction.”

34 Prior to the plaintiff’s accident, Sam had approximately three dives. They were at the second location for approximately twenty minutes until the accident. When the incident occurred, Sam recalled that Danny was on board and told him the plaintiff was floating in the water and asked, “Is your brother okay?” Sam asked Mickey “if he could see if the [plaintiff] was okay”. Mickey went up to the plaintiff, touched him and said, “his body is like jelly and he is just wobbling.” When Mickey turned the plaintiff over, his face was blue. Mickey then dragged him towards the shore and Sam swam towards them. Sam stated that when they were able to stand, he, Mickey and Charlie carried the plaintiff onto the beach.

35 On the topic of diving at the second point, Sam gave the following evidence in cross-examination (T 137 L 5-24):

“Q. You dived into the water at the second point because you thought it was safe enough to dive in, is that right?

A. That's right.

Q. Did you look at the water before you dived in?
A. I looked at the water.

Q. Was the water smooth or was it a bit choppy?
A. No, it looked okay.

Q. It looked smooth, yes?
A. Yes, it looked okay, yes.

Q. When you were diving at the second point could you see the bottom of the seabed?

A. No.

Q. You could not see it. You couldn't see how deep the water was, is that right?

A. I couldn't see how deep it was.”

36 Danny Ibrahim, the second defendant, and Mickey Beaini, the fourth defendant gave evidence whereas Charbel Ibrahim, the third defendant, did not. This gave rise to a submission under the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

37 Danny Ibrahim, the second defendant, testified that on the day prior to the accident, he was contacted by Charlie Ibrahim who asked him whether he wanted to come on the boat for a test drive. Danny’s evidentiary statement is exhibit 3. As far as he was aware, Buddy was interested in buying a boat that he was taking out for a test drive and invited “some others to come along.” He did not have anything to do with arranging the boat or collecting the keys nor did he know the first defendant. He understood that Buddy had arranged or had picked up the keys to the boat. He was not sure who drove the boat to the Moorebank wharf. He recalled that a number of them took a turn including himself and did not remember who was driving the boat when it arrived at the Moorebank wharf. He had held a jet ski licence since 2001-2002 and at the time of the accident held a boat licence. He said that a jet ski licence entitled him to drive both a jet ski and a boat: T 259 L 40-42.

38 At Brighton-Le-Sands, they stopped near the Novotel hotel. He did not see who put the anchor in but he did not. All of them went for a swim except Buddy after the boat was moored. Danny dived from the boat as the water seemed deep enough to dive into. He saw others doing that as well. They would dive off the bow, swim around to the stern and get back onto the boat. After a period of time, he heard Mickey say that “he had touched the bottom with [his hands] and we should move the boat.” In cross-examination, he agreed that Mickey had said he had hit his shoulder on the bottom and said something along the lines that “it’s too shallow for diving. We need to move the boat somewhere that’s safe for diving”. The boat was moved but he did not drive it whilst it was being moved. He could not remember who was driving at that point but “if it was a guess” he would say it was Mickey but he could not be a hundred per cent sure.

39 In answer to questions by Mr Dooley, Danny gave the following evidence (T 262 L1-33):

“Q. Would I also want to suggest is that when the vessel moved from the first point to the second point you were on the bow of the vessel?

A. Sorry you are suggesting that I was?

Q. That you were up the front of the boat, you were on the bow?

A. I possibly was.

Q. And that what you were doing was looking at the water to see whether the vessel had reached a point that it was deep enough for diving?

A. I could have. I do remember seeing the water before we dived, so whether it was while we were moving I could have been on it or when it stopped, I'm not sure.

Q. And I want to suggest to you that you indicated to the person driving the vessel that things along the line of "That's far enough, we can drop the anchor here", words to that sort of effect?

A. A hundred percent sure I'm not but I could have done that as well. As I said if I was up there I would have been in the position to see whether it was deep enough.

Q. And I want to suggest to you the person who drove the vessel from the first point to the second point was Mickey Beaini?

A. As indicated earlier he would be my best guess, yeah.

Q. Just to perhaps put the words more correctly, you said something at the second point where the anchoring was taking place something like "That's deep enough" or words to that effect?

A. Exact words I don't remember. I knew it was deep enough at the time.

Q. And you yelled that out with a view to telling whoever was driving that "You can stop now and lower the anchor"?

A. I know what you're trying to say but I can't remember whether I said it directly or said it out loud. I'm not sure.”

40 Danny recounted that after the boat was moved, he dived off the bow of the boat into the water. The water seemed darker and as far as he could tell at the time, deeper. It was colder when he dived in. The front of the boat was again facing towards the heads. He thought he had dived in once at the second location. He said it was cold, you could tell it was deep and as he could not touch the bottom, it was hard to determine the depth. He did not remember Mickey yelling to the plaintiff something like “Robert come on dive in, [it’s] safe enough to dive.” He believed that a number of people had dived off the boat prior to the plaintiff’s accident. He thought they may have been at the second point for twenty minutes before the accident but was unsure. He had not heard anyone say that it was too shallow or complain of touching the bottom.

41 Mickey Beaini whose evidentiary statement is exhibit 4, remembered receiving a call from someone who was going on the boat that day asking if he wanted to come. It would either have been Sam or Danny who asked him. One of them said that Buddy was going to purchase a boat which Buddy was taking out for a day. Mickey said that he could not remember a conversation with Danny or Sam whereby they invited him on the boat because he had a boat licence. He boarded the boat at the Cronulla Marina and recalled the plaintiff being collected at the Moorebank wharf. He remembered taking the wheel of the vessel a number of times but could not recall when. Mickey had owned a trailer boat but thought that his boat licence had expired at the time of the accident.

42 After mooring the boat at Brighton-Le-Sands, they had decided to go for a swim and everyone except Buddy went into the water. He recalled them diving off the front and front sides of the boat which appeared to be at least 20 metres from the shore. Before entering the water, it had looked to him deep enough to dive into. They had swum and dived around the boat for about 20 to 30 minutes. During that period, Mickey could not stand in the water and did not touch the sandy bottom until, on one occasion, his hands, which were outstretched in front of him, touched it. In his oral testimony, he said that it was a standard dive, that his hands hit the bottom and jolted his shoulders. It was possible, he said, that the depth of the water had altered but he did not know whether the boat had drifted backwards towards the beach. He agreed that when he had come out of the water he said, “I’ve hit the bottom and it’s no longer safe to dive here.” He agreed that he had used words to the effect, “If we are going to continue to dive we need to move to deeper water so we can dive safely.” He agreed that the sole purpose for moving the vessel was to enable them to dive or jump safely. Mickey could not remember if he had driven the boat to the second spot but thought it was possible. He could not remember whether Danny was up the front of the boat but thought it was possible that they had got to a point where the person at the front said “that’s far enough” or “that’s deep enough here.” The boat was moved to deeper water, he believed approximately 15 metres further out.

43 Prior to diving off the bow, Mickey said that he had looked at the water and observed that it had changed colour in that the water was darker. It seemed a deeper blue. He believed this to mean that it was deeper. He formed the view that it was safe to dive in, although he did not make any comment to that effect to anyone else on the boat. When he dived in, he found it was deeper water and did not touch the bottom. Prior to the plaintiff’s accident, he saw a number of people dive off the boat but did not remember the plaintiff diving in.

44 Mickey did not remember how many times he had dived in. It was possibly three or four times. On each occasion that he had dived, he had looked at the water and did not consider that it was too shallow at any time prior to the plaintiff’s accident. He recalled that Charlie, Danny and possibly Sam had dived in.

45 He did not see the plaintiff dive in at the time of his accident. He was in the water at the time and was swimming round to the back of the boat. Mickey heard the other guys talking about the plaintiff and how he was floating with his face down. After hearing this talk for some seconds, perhaps a minute, he swam back to the plaintiff who was floating face down, arms out, about 8 to 10 metres away from the front of the boat. When he touched the plaintiff, it seemed like he was touching jelly. He immediately took hold of him and yelled to Danny to call an ambulance.

46 Mickey could not remember yelling out to the plaintiff before his accident dive “come on, dive in, it’s safe to dive” and did not recall instructing anybody to dive off the vessel.

Matters of credit

47 I propose to detail here my evaluation of the plaintiff as a witness. He impressed me as being a courageous person who was doing his best to recall what occurred before he was grievously injured. It was evident, however, that on some important matters of fact his recollection was either mistaken or the subject of favourable reconstruction and was unreliable. A salient matter was his oral testimony that he had been reassured by Mickey that it was safe to dive in, that he was not going to dive but was encouraged by others in the water telling him to “come on, jump in, dive in”.

48 There are two evidentiary statements made by the plaintiff in evidence; exhibit C, which was made the week prior to the commencement of the trial, and exhibit 1 which is dated 27 March 2009. In neither statement does the plaintiff make reference to being reassured by Mickey or encouraged by others to dive, which I find to be remarkable given the significance of this evidence. Badui and Sam Laoulach did not give evidence that they heard words of assurance or encouragement. Danny Ibrahim and Mickey Beaini could not remember reassuring or encouraging the plaintiff to dive. Danny was standing at the back of the vessel when he spotted the plaintiff floating in the water and Mickey was swimming to the stern when the plaintiff dived. In any event, it makes little sense that the plaintiff required any encouragement to make a second dive as he had presumed that the depth of the water was the same as it was at the time of the first dive at the second anchor point.

49 Mr Cavanagh pointed to a number of inconsistencies between the two evidentiary statements. Particular reference was made to the plaintiff’s assertion at ex 1 par 24 that Charlie moved the boat from the first anchor point to the second anchor point whereas at ex C par 31 it was Mickey who was said to have been the driver. Mr Cavanagh brought to my attention the difference between the plaintiff’s statement at ex C par 28 that he had dived from the bow of the vessel on one occasion at the first point whereas that was expressly disavowed during his oral testimony. He had also recalled in oral testimony that he had not gone into the water from the bow but from the back of the vessel which is different to what is stated in ex C par 26.

50 Another inconsistency is the plaintiff’s statement at ex 1 par 24 that he was unaware but had “since been advised that Mickey told Charlie that the water was too shallow at the point where we had moored further away from shore”. This statement appears to ground particular (e) of the particulars of the defendants’ negligence. It was, however, the plaintiff’s evidence at ex C par 29 and in his oral testimony that he had heard Mickey’s account of hurting his shoulder and the need to move the vessel to a safer depth. All of these matters detract from the reliability of the plaintiff’s evidence.

51 I do not accept that the plaintiff was reassured or encouraged by Mickey or anybody else to dive in before he made the second dive and was injured. Before he made the second dive, the plaintiff noticed that the water was slightly lighter in colour than before the first dive but was still dark blue. The plaintiff presumed that it was the same spot from where he had safely made the first dive. The plaintiff exercised his own judgment in deciding that it was safe to dive from the vessel a second time.

52 Whilst there was a degree of imprecision and some inconsistency in the evidence of Badui and Sam Laoulach, and there were aspects of their evidence I did not accept, I found them overall to be honest and reliable witnesses. Although the evidence of the second and fourth defendants was marked by lack of memory on some matters of significance, my evaluation was that any failure of recollection was not deliberate. Although I did not accept all of their evidence, I assessed them for the most part to be credible witnesses.

53 Charbel Ibrahim, the third defendant, did not give evidence. Mr Cavanagh conceded that he had been available to do so. Mr Dooley asked the court to draw an inference that the third defendant would not have assisted “the single case of the defendants.” He argued that the failure to call the third defendant did not assist the defendants’ case in terms of proof of driving and controlling the vessel: (T 325 L 9-14). Mr Cavanagh said that the Jones v Dunkel inference could be drawn: T 308 L 25. He explained that as it was no longer the plaintiff’s case that the third defendant drove the vessel, it was considered to be unnecessary to call him. What was said by Mr Cavanagh does not provide a satisfactory “explanation why the witness was not called or shows that the reason for not calling him was not that the party ‘fears to do so’”: Fabre v Arenales (1992) 27 NSWLR 437 at 445-6. There are disputed issues other than that of the identity of the drivers of the vessel. Accordingly, I draw the inference sought by the plaintiff that the third defendant’s evidence would not have helped the defendants and I will take that into account in my consideration of any matters on which the third defendant could have spoken.

Some findings of fact

54 The evidence as to how the defendants came to be on board the vessel was mixed. It was Badui Laoulach’s evidence that he contacted Danny, Charlie and Mickey “if they would not mind coming out for the day and test driving the boat for him as the owner of the boat ...requested [him] to ensure that a licensed driver operate the boat”. He had spoken to each of them on the morning of the accident to ensure that they were all coming to drive the boat. Sam Laoulach, however, gave evidence that Buddy asked him to contact Danny, Mickey and Charlie. He asked them if they would mind test-driving a boat for Buddy. The second defendant testified that on the day prior to the accident, he was contacted by Charlie Ibrahim who asked him whether he wanted to come on the boat for a test drive. As far as he was aware, Buddy was interested in buying a boat that he was taking out for a test drive and invited “some others to come along”. The fourth defendant remembered receiving a call from someone who was going on the boat that day asking if he wanted to come. It would either have been Sam or Danny who asked him. One of them told him that Buddy was going to purchase a boat which Buddy was taking out for a day. The fourth defendant said that he could not remember a conversation with Danny or Sam whereby they invited him on the boat because he had a boat licence.

55 The defendants do not dispute that Badui Laoulach obtained the permission of the first defendant, the owner of the vessel to take it out for a test drive as he was considering buying it. It is common ground that he organised the day and invited everyone else onto the vessel, either directly or through his brother Sam. Neither the plaintiff nor his brothers had a New South Wales licence which was required to drive a power-driven vessel at 10 knots or more.

56 I am not persuaded that either Badui or Sam Laoulach spoke to each of the defendants in the terms that they related in their evidence. It is, on the evidence, unclear why it was thought necessary to have three persons on board with boat licences as only one person was required to have a New South Wales boat licence to drive the sports cruiser at more than 10 knots. I prefer the second defendant’s evidence that he was asked if he wanted to go on the boat for a test drive. I also accept the fourth defendant’s account that he was asked if he wanted to come. Although there was some debate during the fourth defendant’s evidence as to whether his boat licence had expired or been cancelled, I do not think that this is of any consequence as the fourth defendant believed he had a boat licence at the time.

57 Recollections varied as to whether the third defendant participated in the driving of the vessel between the Moorebank wharf and Brighton-Le-Sands. The plaintiff recalled that Charlie had alternated as a driver with Mickey and Danny whereas Badui Laoulach did not see Charlie driving at all. Sam Laoulach recounted that Charlie drove only for a short time. After the plaintiff acknowledged his mistake in identifying Charlie as driving the sports cruiser between the first and second anchor points, there was no evidence that he had driven the vessel whilst it was in Botany Bay. I find that the third defendant’s role in driving the sports cruiser was confined to a short time on the voyage from the Moorebank wharf and that the driving of the vessel for the most part was shared by the second and fourth defendants.

58 A matter in contention was whether the identity of the driver of the sports cruiser when it was anchored at the first point in Botany Bay and when the vessel moved to the second anchor point had been established. Mr Cavanagh referred to the inconsistency on this issue in the plaintiff’s statements and to the uncertainty of the second and fourth defendants as to who was the driver. Badui Laoulach’s recollection, however, on this topic was firm and was supported by Sam his brother.

59 I have little difficulty finding on the balance of probabilities that the second defendant was driving the vessel when it first came to be anchored and the fourth defendant drove the vessel when it was moved from the first anchor point to the second anchor point. I also find that the second defendant was then towards the bow of the vessel and lowered the anchor into the water.

60 It is common ground that Sam, Mickey and Danny dived into the bay from the bow after the sports cruiser was first anchored. I accept the plaintiff’s evidence that he jumped into the water from the back of the vessel and did not dive in. I also accept the fourth defendant’s evidence that on one of his dives, his outstretched hands hit the bottom and jolted his shoulders. When he returned to the vessel, he said words to the effect of, “I’ve hit the bottom and it’s no longer safe to dive here. If we are going to continue to dive we need to move to deeper water so we can dive safely”. I accept Badui Laoulach’s evidence that the fourth defendant started the vessel’s engine, and the second defendant went to the bow when it was driven further from the shoreline. I find that the second defendant called out either “that’s far enough” or “that’s deep enough”, the boat was idled and the anchor released by the second defendant. The sole purpose of moving the vessel was, I conclude, to find a position where the second and fourth defendants considered that the water was deep enough to dive into safely.

The Burge report

61 The defendants objected to the admission into evidence of the report of Peter Burge dated 22 April 2009. In Laoulach v El Khoury [2010] NSWSC 595, I provided reasons for admitting the report. The facts assumed by Mr Burge in par 13(1) were not supported by the testimony of the plaintiff and his brothers. The absence of evidentiary support for the assumed facts in par 13(1) goes to the weight to be given to the opinions expressed by Mr Burge as to the movement of the vessel. The contents of par 13(1) were admitted only as going to the facts assumed by Mr Burge and not as to the truth of what was said to be the plaintiff’s recollection. No notice had been given by the defendants that Mr Burge was required for cross-examination and Mr Cavanagh did not ask the court to exercise its discretion under
r 31.29(3) Uniform Civil Procedure Rules 2006.

62 Mr Burge reported that from the observations taken by the Bureau of Meteorology at Sydney Airport, it could be seen that there were strong, gusty winds varying between 25-36 km/h and 61-65 km/h during the two-hour period between 11.30am and 1.30pm on 30 November 2004. The wind direction during the same period changed between 330 degrees (NNW) and 80 degrees (almost due east), a range of some 110 degrees through the northern sector. The Beaufort Wind Scale attached to the Bureau of Meteorology Extract described the wind strengths as ranging between “fresh winds” (30-39 km/h) to “gale” strength (63-75 km/h). The Beaufort Scale relates that wind strengths in this range might create waves at sea that vary between being “moderate,” “large” and “moderately high”. Mr Burge opined that such weather conditions would have caused a boat at anchor to swing around with the changing wind direction. The cloudy, rough conditions would also, Mr Burge reported, have caused the boat to rise and fall with the waves and would have limited a person’s ability to visually observe the depth of water from a vessel’s deck. The visual synoptic observations for Sydney Airport at 12pm and 3pm were cloudy (50ktas – 5/8 or 62 per cent of the sky was obscured by cloud) and increasingly cloudy (60ktas – ¾ or 75 per cent of the sky was obscured by cloud). Mr Burge considered that as there were no prominent geographical features likely to significantly affect the wind patterns in the area, it was reasonable to assume that the weather conditions on the beach and adjacent waters at Brighton-Le-Sands were comparable with those at Sydney Airport.

63 The underwater topography was considered by Mr Burge. He reported that the various charts of the area show a very shallow gradient between zero at the beach and around two metres depth about 50 metres out from the beach near the end of the enclosed swimming area immediately north of the Novotel Hotel. Mr Burge, however, observed that sandy sea bottoms are subject to tidal, flood, wind and other influences which will cause the sands to shift and bottom depths to vary. He states (p 12):

“It is important to note that there were significant dredging works intended to “renourish” lost sands and stabilize Lady Robinson’s Beach at Brighton-Le-Sands occurring during the period when the incident occurred.

...

These various factors indicate to me that the regularity of the topography of the sea bottom adjacent to Lady Robinson’s Beach cannot be assumed. It is far more likely that there will be places where a regular gradient will occur and others where shallow banks, deeper “holes” and “tidal channels” will be found.”

64 Mr Burge considered that the person or persons in command of any vessel, whether it be a commercial vessel or a leisure craft is responsible for the safety of the craft, crew and passengers. He referred to various passages extracted from the NSW Maritime authority publications You’re the Skipper, You’re Responsible and Boating Handbook.

65 In order for the anchor to be effective and hold the large 8.4 metres long vessel with a mass exceeding 2.75 tonnes in a secure position, Mr Burge stated that a long length of anchor cable would have been let out. The “Rule of Thumb” suggested in the Boating Handbook, Mr Burge reported, was that in two metre deep water, around 6 to 10 metres (3 to 5 times the water depth) of cable should have been let out. He went on to state (pars 37-38):

“In 3 metre deep water this would be between 9 and 15 metres of cable. In very strong winds, such as those that were prevalent at the time of the incident, the length of cable could and ought to have been much longer again to stop the boat “dragging” its anchor - perhaps as much as 20 metres or more.

The boat was known to be swinging about on its anchor as the wind changes and currents affected it. It therefore follows that the radius of the arc of the swing would be as long as the length of the anchor chain, perhaps somewhere between 6 and 20 metres. If this was the case, as the vessel swung about, it would certainly have been brought back into the shallow waters that were observed when one of the Defendants hit his shoulder on the sand bottom at the first anchorage position.”

66 When considering the opinions expressed by Mr Burge, I bear in mind that the evidence establishes on the balance of probabilities that the plaintiff was collected at Moorebank at approximately 12.30pm. The plaintiff’s testimony was that the vessel arrived at Brighton-Le-Sands at about 1.30pm. Both Badui and Sam Laoulach estimated that the cruise to Brighton-Le-Sands took about 45 minutes. Estimates of the time spent at the first point given by the witnesses varied between 10 minutes to 30 minutes and after anchoring at the second point between 20 to 30 minutes. The estimates of the distance that the boat moved from the first anchor position to the second anchor position ranged from 10 metres to 20-30 metres. The Ambulance Service records (ex M) reveal that the first call to the ambulance was made at 1.57pm. I find on the balance of probabilities that the vessel was first anchored off Brighton-Le-Sands at about 1.15pm and the accident occurred close to 2pm. The weather conditions that are of relevance are those between 1pm and 2pm and the changes in wind direction before 1pm considered by Mr Burge are of no assistance in my fact-finding task.

67 The observations for Sydney Airport AMO (Site No 66037) record that the wind direction was 80 degrees at both 1pm and 1.30pm. The observations do not support a finding that there was a change in wind direction at 1pm and at 1.30pm. The wind direction at 2pm was 60 degrees. The reference by Mr Burge to a wind direction of 330 degrees was to the observation taken at 11.30am. The variation in wind direction between 1pm and 2pm was at the most 20 degrees.

68 The visual synoptic observations of the “present weather” recorded for Sydney Airport AMO (Site no 66037) at 12pm was “cloudy” with a visibility of 30 kilometres and “cloudy” with a visibility of 28 kilometres at 3pm.

69 No one gave evidence of the boat swinging around. The plaintiff testified that the front of the boat was facing what he believed to be the same way as when he took the first dive. Badui Laoulach said that the front of the boat was facing out to sea at the second point and whilst he had been sitting on the boat he had not noticed the boat moving at all. Sam Laoulach recounted at ex H par 32 that the bow “as it did at the previous location, continued to point towards the open ocean or in that general direction.” The second defendant testified that when the boat was stopped at the second point, its front was facing out towards the sea, that when he dived from the boat it was still facing that way and still was at the time of the plaintiff’s accident. He did not observe the boat move at all. I do not think that the witnesses’ failure to give evidence of the sports cruiser swinging around was due to lack of memory but was due to an almost constant wind direction whilst the vessel was moored at the two locations off Brighton-Le-Sands.

70 All of this evidence undermines the opinion expressed by Mr Burge in the passage quoted at [65] above that the “boat was known to be swinging about on its anchor as the wind changes and currents affected it.” It is convenient to observe that no evidence was adduced in the trial of the currents or tidal conditions in Botany Bay on the day in question. I am not satisfied on the balance of probabilities that the sports cruiser was swinging around on its anchor.

71 The observations, however, from Sydney Airport AMO (Site No 66037) reveal that the wind speed at 1pm was 47 km/h with wind gusts of 58 km/h. At 1.30pm the wind speed was 61 km/h with wind gusts of 65 km/h. At 2pm, the wind speed was 50 km/h with wind gusts of 61 km/h. The Beaufort Wind Scale descriptive term for 40-50 km/h wind is “Strong Winds” and the “description at sea” is as follows:

“Large waves begin to form, the white foam crests are more extensive with probably some spray.”

72 The Beaufort Wind Scale descriptive term for wind speeds between 51-62 km/h is “Near gale.” The “description at sea” is as follows:

“Sea heaps up and white foam from breaking waves begins to be blown in streaks along direction of wind”.

73 The Beaufort Wind Scale descriptive term for wind speeds between 63-75 km/h is “Gale”. The “description at sea” is as follows:

“Moderately high waves of greater length; edges of crests begin to break into spindrift, foam is blown in well-marked streaks along the direction of the wind.”

74 With wind strengths ranging between 1pm and 2pm between “strong winds” and “gale strength”, the Beaufort Wind Scale relates that wind strengths in this range might create waves that vary between “large”, “sea heaps up” and “moderately high.”

75 The approximate distance of Sydney Airport AMO (Site No 66037) from Botany Bay/Brighton-Le-Sands Beach is 3.3 kilometres. During oral submissions, Mr Dooley suggested that the distance between the Novotel Hotel and “one point” of Sydney Airport was about one kilometre when regard is had to the legend on the map (ex B). On my calculation from the legend on the map (ex E), the distance from the Novotel hotel to an approximate mid-point of the north/south runway is 2.125 km and 2.375 km to the approximate endpoint of the same runway by use of that map’s legend. In any event, Sydney Airport covers a vast area and the location of the Sydney Airport AMO (Site No 66037) was not disclosed in the evidence. Little turns, in my view, on these approximations of distance.

Further findings of fact

76 The observations taken from Sydney Airport AMO (Site No 66037) are to be contrasted with the witnesses’ recollections of the weather conditions. The plaintiff’s testimony was that the weather was fine and warm with light gusty breezes when the boat was initially moored: ex C par 24. This was at about 1.15pm. At ex C par 40, he states that “as time progressed the wind picked up so that the visibility of the ocean was not as good. However, it still seemed to be dark blue.” During cross-examination, he confirmed his assessment of the weather conditions given in ex C pars 24 and 40 and described the water surface as being “slightly” more choppy: T 110 L 16-22.

77 Badui Laoulach described the weather conditions as being fine and the water as clear and calm: ex G par 14. It seemed to him they were “perfect weather conditions for boating.” At ex G par 33, he states that “the wind had picked up a little during the afternoon and it had become difficult to see the bottom.”

78 In cross-examination, Mr Laoulach gave the following evidence (T 124 L 35-46):

“Q. Did you notice that the wind came up a bit whilst you were at the second point?

A. A little bit. It was a bit windy towards the afternoon.

Q. Pardon?
A. It was windy towards the afternoon a little bit.

Q. Did that have some effect on the smoothness of the water?
A. I don't remember.

Q. Did it make it more difficult to see through the water?
A. Yeah, you can say that.”

79 Sam Laoulach recounted that “the weather conditions were sunny and fine and the water was clear and calm. It seemed to be perfect weather conditions for boating”: ex H par 19. He recalled at par 32 ex H that “over a period of time the wind picked up and was gusty”: ex H par 32. When he dived in at the second point, the water looked “smooth” and it was not “a bit choppy”. The second defendant did not remember gusty winds. He remembered when they got to Brighton, “it was hot weather and calm waters at the beginning”. The fourth defendant testified that it was a sunny hot day with possibly a bit of cloud around. When asked in cross-examination, he could not remember “some quite strong gusts of breeze from time to time.”

80 It is an egregious feature of the evidence that no-one made mention of “large waves” or the “sea heaping up” or “moderately high waves” which might have accorded with the Beaufort Wind Scale. Another remarkable feature is that no-one gave evidence of the bow of the sports cruiser rising and falling with the waves which Mr Burge opined would have been caused by the weather conditions nor was there evidence of the vessel having moved.

81 The plaintiff submitted that it was not surprising that recollections might fade particularly having regard to the serious accident that occurred. Further, whilst being in the rear of the vessel, wind effects would be significantly reduced. Support for this contention was said to be found in the second defendant’s evidence that, whilst out swimming, he was unlikely to take notice of anything other than drastic changes in the weather. The plaintiff argued that the evidence is of very significant winds, significant enough “to cause a swaying of the boat and cause it to sway from side to side with changing gusts of breeze which would not necessarily be coming from exactly the same direction on each occasion”. The plaintiff referred to evidence which pointed to the water being less than two metres in depth underneath the sports cruiser at the time of the plaintiff’s second dive. There were two likely scenarios for a change from adequate water for diving to shallow water within a short period of time being:

“Boat merely drifted back on the anchor rope so as to allow the boat to drift into an area where the water was not sufficiently deep.

Alternatively, that the boat dragged its anchor either through inadequate anchor line being extended or the strength of the breeze and in the sandy surface of the ocean floor unable to hold.”

The latter scenario was, according to the plaintiff, the most likely given the amount of wind.

82 The defendants contended that there was a consistency between the evidence adduced on behalf of the plaintiff and the evidence adduced on behalf of the defendants as to the weather conditions on the day. None of the five of the six people on board the vessel gave evidence of:

High wind speeds;

The boat moving;

The boat swinging on the anchor;

The boat dragging on the anchor, swinging in the breeze and;

None referred to anything other than the wind coming up a little bit.

83 Badui Laoulach, the defendants pointed out, was the only person who had remained on the sports cruiser at all times and he did not observe the boat to be moving. The defendants argued that on the evidence the court could not find that the winds in the bay were at the levels suggested by Mr Burge, that the boat was behaving in the way suggested by him or that the explanation for the accident was as he had suggested. The defendants submitted that many things might have happened. The vessel may have drifted, the tide may have changed or the result of the dredging may have been that there was a particular sandbank, rock or other elevation on the bottom of the bay at the very point where the plaintiff had dived in. It was the defendants’ contention that the court was not in a position to find what had happened but nor was the court in a position to find that the defendants were negligent because the accident had happened.

84 The plaintiff’s case on duty, breach and causation of damage is founded upon circumstantial evidence. There was no direct evidence that the sports cruiser’s position had moved its position from the time it was first anchored at the second anchor point or that it had dragged its anchor either through an inadequate anchor line being extended or by the strength of the wind. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J (with whom McColl and Bell JJA agreed) dealt with what is needed to meet the standard of proof on the balance of probabilities in a case where the evidence is circumstantial. His Honour said [at 55]:

“The position may be summarised as follows:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the facts existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”

85 All of the persons on the sports cruiser with the exception of Badui Laoulach, had not remained in the rear of the vessel but had dived from its bow at the second anchor point. Notwithstanding the traumatic events of the afternoon and the effluxion of time, I do not accept that they would not have recalled, whilst diving, swimming and climbing back on board the sports cruiser, that there were waves of some height or that there was up and down movement of the vessel if the wind strengths had been the same as those recorded at the Sydney Airport AMO (Site No 66037). I do not understand how the second defendant’s evidence can be said to support the plaintiff’s argument of very significant winds. He did not remember gusty winds at the first anchor point and had remembered calm waters at the beginning. When I asked him what he recalled, he replied, (T 260 L 39-43):

“A. When you're out there swimming and diving you sort of unless it's really drastic storms you don't really take notice much of the weather, like if it's really bad winds obviously would take note and see the boat swaying dramatically you would want to fix it up. As I said at the beginning of the trip when we were just swimming and diving it didn't enter my mind that it was dangerous at the time.” (underlining added)

86 In any event, Sam Laoulach’s evidence was of a smooth water surface before he dived at the second anchor point and the plaintiff’s evidence was that the water was “slightly” more choppy.

87 In making an assumption (which appeared to me to be reasonable at “first blush”) of comparable weather conditions at the airport and adjacent waters, Mr Burge did not have the benefit of hearing the evidence given during the trial. I am unable to find on the balance of probabilities that the speeds of the wind and wind gusts that confronted the sports cruiser whilst it was anchored at the first and second points in Botany Bay were the same as those recorded at the Sydney Airport observation site. Whilst I find that the wind speeds and wind gusts increased after the vessel was initially anchored, I am unable to conclude on the balance of probabilities that the strength of the winds ranged between “strong winds” and “gale strength”. I am not satisfied on the balance of probabilities that there were “very significant winds”, nor were the winds such as to cause the vessel to sway significantly from side to side with changing gusts.

88 It is more likely than not that the weather conditions described by the witnesses between 1pm-2pm, accord with a range between “light winds” (19 km/h or less) to “moderate winds” (20-29 km/h) on the Beaufort Wind Scale. “Small wavelets” are to be anticipated within the range of “light winds”. The description at sea for “moderate winds” is “small waves – becoming longer; fairly frequent light horses”. What was said by the witnesses as to the surface of the bay does not seem to me to correspond to “moderate waves, taking a more pronounced long form; many white horses are formed – a chance of some spray” which is the description at sea for “fresh winds” (30-39 km/h). I find, on the balance of probabilities that whilst the sports cruiser was in Botany Bay between 1:15pm-2pm the prevailing winds fell within the Beaufort Wind Scale range of “light winds” to “moderate winds”.

89 As Mr Burge was not called for oral testimony, there is no expert evidence as to the impact that the wind conditions within the range of “light” to “moderate winds” and of an almost constant direction were likely to have on an anchored sports cruiser. The lack of oral expert testimony has enhanced the difficulty of my fact-finding task in this trial.

90 It is evident that the vessel did not remain in a static position at the first and second anchor points as a number of dives safely took place in each location before difficulty was encountered. There had been at least seven dives at the second anchor point before the dive that resulted in the plaintiff’s injury. The plaintiff’s evidence was that he believed that he had dived into approximately two metres of water before he struck the sand in the second dive. He had not dived straight down but had dived on an angle.

91 Badui Laoulach states at ex G pars 33-34 that when he initially got into the water at the stern of the vessel after the plaintiff’s accident, he “was able to touch the bottom with [his] feet and the water came up to just below [his] shoulder level.” He was very surprised “about how shallow it was.” Sam Laoulach states at ex H pars 42-43 that “[he] was in the water at the time when Mickey went to [the plaintiff’s] aid. [He] then moved over towards them and then realised [he] could put [his] feet on the ground so that [he] was on the bottom so that [he] could do small jumps and keep [his] head above water”. He was very surprised to realise what the depth of the water was. The second defendant testified that he did not jump in straight away because he was still on his mobile phone to the ambulance. When he jumped in he did not remember how he kept the phone above the water. In cross-examination by Mr Dooley, he was asked (T 263 L 38-39):

“Q. So you hopped in the water and walked with your phone?
A. I don't know how I got there, whether swimming or walking.”

92 And further (T 264 L 36-41):

“Q. What I'm suggesting to you it must have been shallow enough for you to really get your feet or your tip toes, as it were, on to the ground?

A. Possibly.

Q. Is it probably?
A. Probably.”

93 It is necessary, however, to consider other evidence which bears upon this issue. The fourth defendant was the first person who went to the plaintiff’s aid. He recounted at ex 4 par 24 swimming back out to the plaintiff who was floating face down about eight to ten metres away from the front of the boat. In answer to questions by Mr Dooley, he gave the following evidence (T 288 L 41-46):

“Q. All you did was help him out?
A. Yes.

Q. Did you discover in the process of helping him out that the water

was quite shallow?
A. I can't remember.”

94 And (T 289 L 42-46):

“Q. You were helping Robert out?
A. I swam with Robert for a period of time, then I walked the rest.

Q. When you walked the rest, the period you walked, it was an even grade?

A. I guess so. I can't remember it not being an even grade.”

95 Badui Laoulach states at ex G par 32 that “the others had to swim 50-60 metres into shore to get [the plaintiff] onto land”. He had earlier estimated that the vessel was approximately 30 metres from the shore when anchored at the first point and may have been moved 20-30 metres out from the shoreline before it was anchored for a second time.

96 These estimates of distance indicate that the vessel had not moved much after it was anchored at the second point and are consistent with Badui Laoulach’s testimony that while he was sitting on the vessel he had not noticed it moving at all. Furthermore, his assessment of the depth of the water was in the vicinity of the stern of the vessel and not of the area in the vicinity of the bow. The centreline length of the sports cruiser was 8.4 metres and when seen by the fourth defendant the plaintiff was about 8 to 10 metres from the bow. The evidence given by the second defendant on the depth of the water after the plaintiff’s injury was in the vicinity of the stern. He had not noticed any change in the colour of the water before the plaintiff’s injury. Before he had dived in from the bow the water “seemed darker”. He could see “the blueness of the water.” The second defendant did not hear anyone say that it was too shallow or complain of touching the sea bottom.

97 Sam Laoulach recounts at ex G par 39 that:

“Mickey then dragged Robert towards the shore and I swam towards them. When we were able to stand Mickey, Charlie and I carried [the plaintiff] to the beach.”

98 The fourth defendant, it appears, had dragged the plaintiff some distance towards the beach before Sam Laoulach met them. The evidence neither discloses how far the fourth defendant swam with the plaintiff before he was able to stand nor how far it was from the area into which the plaintiff had dived the second time that Sam Laoulach realised that he could put his feet on the bottom of the bay. It must be remembered that Sam Laoulach had had (approximately) three dives from the vessel whilst it was anchored at the second point and was in the water at the time of the plaintiff’s injury. He made no mention of being able to see or touch the bottom or of any change in the colour of the water whilst he was diving from and swimming in the vicinity of the sports cruiser.

99 The plaintiff gave evidence that he had swum into the shore after his first dive “as did some of the other boys” and had noticed that “the water level gradually reduced “as he got closer to the shore”. He described the sand as being even “in that the sea-bed appeared to be flat and gently sloping”: ex C par 37. When he swam back to the vessel, he observed “the deep blue water as we got closer to the boat and it appeared that it got to a point where we were unable to determine where the bottom was”: ex C par 38. In cross-examination, the plaintiff said (T 68 L 31-50):

“Q. You meant by that that as you were swimming towards the boat, you got to a point as you were swimming that you couldn't see the seabed?

A. That's correct.

Q. Is that right?
A. That's correct.

Q. And how far away were you from the boat when you got to a point where you couldn't see the seabed as you were swimming?

A. I was - I was next to the boat.

Q. Next to the boat?
A. Getting on the boat.

Q. So whilst you were in the water, you couldn't see the seabed next to the boat?

A. I was swimming and I - my - I didn't - it was dark waters. It was dark waters. I didn't check to see how deep where the bed was but I couldn't see the bed.”

100 In his evidentiary statement the plaintiff recounted that after he returned to the boat “[he] was talking with Buddy at the back of the boat when the others dived back into the water. A few minutes later [he] dived into the water into what [he] believed was the same area he had seen the others dive and which [he] had previously dived [himself]”. In cross-examination the plaintiff said that at the second anchor point five to ten minutes elapsed between the time he got back into the boat after his first dive and the second dive.

101 An analysis of the testimony of the plaintiff and Badui Laoulach suggests that the water level substantially dropped in the vicinity of the stern of the sports cruiser between the plaintiff’s return to the vessel after his first dive and his second dive. The plaintiff’s estimates of time varied between “a few minutes” to “five to ten minutes.” Such an analysis does not sit happily with the absence of notice by any of the witnesses of either movement of the vessel or a change in water depth. None of those, who had dived in and returned to the vessel, had observed any variation in the deepness of the water. Moreover, those who were in the water at the time of the plaintiff’s second dive did not detect any shallowness.

102 The fourth defendant had dived from the bow of the vessel possibly three or four times at the second anchor point and was swimming towards the stern when he heard talk of concern for the plaintiff. I am satisfied on the balance of probabilities that at least one of the dives by Sam Laoulach and by the fourth defendant were made within a short space of time before the plaintiff’s second dive. When the fourth defendant had dived in at the second anchor point, he found that the water was deep. He described the water colour as being a “deeper blue.” He did not give evidence of noticing any difference in the depth of the water or any change in sea colour between the time that the sports cruiser was first anchored at the second point and the time that the plaintiff was injured. No one, other than the plaintiff immediately before his second dive, had noticed that the water was slightly lighter in colour.

103 Mr Dooley seemed to suggest in oral argument that the court should not take into account what was stated by Mr Burge about the underwater topography as there was “no proof of it” and the court was bound to accept the unchallenged evidence of “a gradual and even surface”: T 323 L 15-17; L 25-29. All of the evidence of a gradual and even sea bottom was from the stern of the vessel towards the shore. Mr Burge stated that “bottom topography is rarely level and can vary greatly”: par 44(a). Mr Burge had considered in the passage quoted at [63] above that the regularity of the sea bottom could not be assumed because of the significant dredging works and it was “far more likely that there will be places where a regular gradient will occur and others where shallow banks, deeper “holes” and “tidal channels” will be found.” I do not propose to disregard this evidence.

104 The failure of Sam Laoulach and the fourth defendant to observe any change in the water depth cannot be explained, it seems to me, by the cloudy weather conditions as they had dived in and were swimming in the vicinity of the vessel at the time that the plaintiff was injured. The lack of notice of shallowness by the swimmers in the water at the time of the plaintiff’s second dive detracts from the plaintiff’s contention that the water depth under the sport cruiser was less than two metres at that time and provides support for the probability that the plaintiff had unfortunately dived in at a place where there was a shallow bank, as does the slight variation in water colour seen only by the plaintiff immediately before his second dive (see [23] above).

105 I am not satisfied on the balance of probabilities that the depth of water under the sports cruiser was generally less than two metres at the time of the plaintiff’s second dive.

106 There was nothing in the evidence of the second and fourth defendants which indicates that they had been inattentive whilst the anchor was being lowered at the second point or that an inadequate length of anchor was lowered so as not to properly secure the vessel to the sea floor.

107 I do not accept Mr Burge’s opinion that as the sports cruiser swung about, it was brought back into the shallow waters where the fourth defendant’s hands had hit the sea floor and jolted his shoulders.

108 After considering the whole of the evidence, I am not satisfied on the balance of probabilities that the vessel dragged its anchor either through an inadequate anchor line being extended or by the strength of the wind. I am not persuaded that the vessel moved to any significant extent. It is more probable than not that when anchored in the second position, the sports cruiser slowly drifted for a short distance on its anchor line so that, when the plaintiff came to make his second dive, the particular area of water into which he intended to dive was not sufficiently deep for safe diving. It is more probable than not that the plaintiff dived into a shallow bank.

109 Although for a time diving took place safely from the vessel’s bow at the first anchor point, the plaintiff from the outset could see the sandy sea bottom underneath the vessel. Sam Laoulach could see white sand and described the colour of the water as light blue. He estimated that the depth was “round about 3 metres”: ex H par 28. It is, however, unclear from what part of the vessel that estimation of depth was made but Sam Laoulach had dived from its bow. Not much, it seems to me, was needed for the entire vessel to drift into water that was too shallow for safe diving. On the totality of the evidence, I am not persuaded on the balance of probabilities that the vessel at the first point dragged its anchor either through an inadequate anchor line being extended or by the strength of the wind.

110 Particular (L) of the particulars of negligence alleges that the defendant’s “failed to use the depth sounder of the vessel to ascertain the depth of water.” It is the plaintiff’s contention that “if there were...[shallow banks, deeper holes and tidal channels] in the immediate area where the diving was to take place and within the zone which the vessel might traverse at anchor, the obligation would be to employ the depth sounder so as to make such observations – failure to do so would be a finding of negligence on behalf of the defendants”: plaintiff’s written submissions (PWS at par 26). Mr Cavanagh suggested in oral submissions that this particular of negligence did not seem to have been pressed as far as he could gather. He said, “no one gave evidence they knew how to use it”: T 307 L 38-39.

111 What then is the evidence of a depth sounder? Badui Laoulach who was the potential purchaser of the sports cruiser did not give evidence of a depth sounder being fitted to the vessel, neither did the plaintiff nor Sam Laoulach. The catalogue for a 2800 sports cruiser does not mention a depth sounder as being within the vessel’s specifications: ex K tab 1. The second defendant was asked the following in cross-examination: T 261 L 35-47:

“Q. One of the ways to check your depth if you want to is to use the depth sounder, is that correct?

A. That's the way I do it.

Q. And this boat had a depth sounder on it or don't you recall --
...

Q. Do you recall?
A. It might have but I didn't go looking. I can't remember.”

112 In cross-examination, the fourth defendant was asked: T 282 L 34-37

“Q. Another way would be to have the depth sounder on and be able to ascertain any changes in the ocean floor to give you an indication that things have changed?

A. Yes.”

113 I give little weight to this answer as the fourth defendant was not asked whether there was in fact a depth sounder on the vessel, whether it worked or whether he knew how to use it.

114 Mr Burge in his report states at par 14:

“From the material supplied to me and from my research, I understand the vessel’s relevant particulars to be as follows:

...

Depth sounder/fish finder sonar system fitted”.

115 Mr Burge reported at par 12:

“Using the internet I have researched the characteristics of Mustang power craft.”

116 What “material” was supplied to Mr Burge or the “research”, other than researching the “characteristics” of “Mustang powercraft”, he undertook is unknown but his understanding was not supported by any other evidence given in the plaintiff’s case. I attach little weight to Mr Burge’s understanding that the vessel was fitted with a depth sounder. In any event, there is no evidence that either the depth sounder was in working order or that anybody on board knew how to operate it. The plaintiff bears the onus of proof and I am not satisfied on the balance of probabilities that there was a depth sounder in working order fitted to the vessel at the time of the plaintiff’s injury.

Duty of care

117 Before expatiating upon the competing arguments on questions of duty of care, scope of duty and breach, it is convenient to observe that a determination of such questions involves a prospective rather than a retrospective enquiry: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 per Hayne J at 461. As was said in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 by Gummow J at 337-338:

“First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.”

118 The plaintiff contended that the defendants were requested to attend the test drive of the vessel as they had boat licences. Each defendant, having driven the vessel, exercised the position as a joint-master having command or charge of the vessel in accordance with s 4 Marine Safety Act 1999 and the defendants were in control of it. The plaintiff submitted that whilst the duty of the operator of a motorised pleasure craft was not dissimilar to that of a driver of a motor vehicle, it was different in some respects. The plaintiff put to me that until a vessel returns to its berth, the operator of the vessel is responsible for it. The plaintiff argued that it cannot be suggested, by mooring the vessel in a bay, that somehow the duty of care which is owed ceases for the period of time it is moored. Persons who operate the vessel have a duty to all those on board and to those in the near vicinity to exercise reasonable care in the management and the operation of the vessel. The fact that this was a recreational outing, the plaintiff submitted, did not mean that the defendants did not owe such a duty of care.

119 The scope of the duty of care was defined, the plaintiff contended, by the specific purpose, which was communicated to all on board, including the plaintiff, that the vessel would be moved to a position which was safe for diving. In oral submissions, Mr Dooley told me that the plaintiff did not say that it was a wide-ranging scope of duty of care but the scope was to ensure that the position to which the vessel was moved, was safe for diving and was maintained as being so unless the defendants advised otherwise.

120 The defendants submitted that the only relationship pleaded and the only basis on which it is alleged that the defendants owed a duty of care to the plaintiff is found in par 3 of the amended statement of claim which is as follows:

“At all relevant times the vessel and those aboard it were under the control of the defendants and each of them.”

121 Accordingly, the defendants’ activity vis-à-vis the plaintiff that is said to impose a duty of care, the defendants contended, is that they are alleged to have been in control of the vessel at all relevant times. The defendants argued that absent such a finding there was no basis on which the plaintiff could succeed. It was emphasised that should such a finding be made, the defendants did not accept that it would give rise to a duty of care in the circumstances of the case.

122 It is true, as Mr Cavanagh pointed out, that Badui Laoulach, to whom the first defendant had given permission to take the vessel, did not give evidence of placing any other person in charge or in control of the vessel or assigning the task of being its master or skipper. The plaintiff’s contention, however, that the defendants were in control of the sports cruiser is principally founded on an assumption of control by the second and fourth defendants when the fourth defendant drove the vessel forward from the first anchor position with the second defendant then at the bow for the sole purpose of finding a position for safe diving.

123 I find on the balance of probabilities that the second and fourth defendants were in control of the operation of the vessel at the times they each drove it. More particularly, they were both in control of the vessel’s operation when it was driven towards and anchored at the second point.

124 There is, however, no evidence that the third defendant took part in moving the vessel in order to find a safe place for diving. His driving of the vessel for a short time during the voyage to Botany Bay did not place him in a different position to the plaintiff and his brothers when he was not driving. He had assumed control of the operation of the vessel only for the short time he was the driver and was not in control of its operation at any time thereafter.

125 There can be little doubt, however, that when each defendant was driving the sports cruiser, he had the control of its operation during that time and owed to all those on board and to others then on the waterway a duty to exercise reasonable care. The facts of this case, however, do not concern an assertion of breach of duty when the vessel was being driven but when it came to be moored at the second anchor point and the plaintiff dived from it into the water grievously injuring himself.

126 I do not think that the driving of the sports cruiser for a short time made the third defendant the “master” of the vessel as defined in s 4 Marine Safety Act 1998. Section 4 relevantly provides:

“Master” of a vessel means the person having the command or charge of the vessel, but does not include a marine pilot.”

127 What each of the defendants did when they took turns driving the vessel was to “operate” it within the meaning of that term as defined in s 4 Marine Safety Act. The term “operate” a vessel relevantly includes:

“(a) to determine or exercise control over the course or direction of the vessel or over the means of propulsion of the vessel (whether or not the vessel is underway), and

...

(c) in the case of the owner of the vessel, to cause or allow the vessel to be operated by someone else.”

128 Something more is required, in my opinion, than the exercise of control over the direction of the vessel by driving it and the possession of a boat licence to be in “command” or in “charge” of the vessel. The evidence does not establish that the defendants were placed in command or in charge of the vessel by Badui Laoulach or anyone else. Furthermore, there is no reliable evidence of the defendants giving instructions or directions about diving whilst the sports cruiser was moored at the second anchor point. I am not satisfied that any of the defendants were the “master” of the vessel as defined in s 4 Marine Safety Act.

129 It is what the second and fourth defendants said and did when the vessel, on which the plaintiff was a passenger, was moved from the first to the second anchor point which constitutes the relationship that gives rise to the consideration of the existence of a duty of care in this case. In Vairy v Wyong Shire Council McHugh J said at 434:

“The common law categorises cases – for the purposes of ascertaining the circumstances in which a defendant owes the plaintiff a duty of care – according to the relationship between plaintiff and defendant and not the activity that caused the plaintiff harm.” (original emphasis)

130 I do not consider that the present circumstances fall within an accepted category of duty of care. Although the plaintiff drew an analogy to the driver of a motor vehicle, I did not find that to be helpful on the facts of this case. Considerations of ocean depth, winds and drift do not commonly confront a road user. “Diving cases” are said not to constitute an accepted category: see Vairy per McHugh J at 434.

131 The plaintiff’s submissions referred to the “salient features” of the relationship between the parties affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury and cited what was said by Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 at [102-103]. In evaluating whether the defendants owed to the plaintiff a duty of care and in identifying its scope and content, I propose to take into account in a non-sequential way the salient features identified in Caltex Refineries at [103].

132 The plaintiff submitted that the proper identification of the risk of harm was of the risk of the vessel moving and the plaintiff, thereafter, diving into shallow water and sustaining injury. The plaintiff sought to distinguish what was said by Gummow J in RTA v Dederer at [351] on the basis that there was no risk in the present case of impact upon jumping into potentially shallow water and the shifting sands of an estuary. The plaintiff contended that there was such a risk at the first mooring of the vessel but not at the second where there was no suggestion “of the water [being of] varying depth”: PWS at par 95.

133 The identification of the actual risk of injury to the plaintiff in this way focuses incorrectly, in my opinion, on the question of causation rather than on the proper characterisation of risk. The actual risk of serious injury to the plaintiff arose at both anchor points from the risk of impact on the bottom of the bay upon diving into water of uncertain depth. Such a risk of harm was foreseeable as the fourth defendant had hit the bottom in his last dive at the first anchor point. The second and fourth defendants had assumed the responsibility of moving the vessel to a place which they considered to be safe for diving and the plaintiff, his brothers and the third defendant were then on board. The Boating Handbook at p 58 makes it plain that the obligations of an operator of a boat do not cease when a vessel is moored. As the second and fourth defendants had assumed the responsibility of moving the vessel and had chosen the anchoring position, they had also taken on the responsibility of ensuring that the sports cruiser was securely anchored and was not brought back by wind or currents into water that was too shallow for safe diving.

134 When referring to “the degree and nature of control able to be exercised by the defendant to avoid harm”, Mr Dooley submitted that “this was totally within the control of the defendants; indeed they had moved the vessel to avoid such harm and represented to the plaintiff that that was in fact what they had known”: PWS at par 86(c). In respect to salient features (d)-(e) at [103] in Caltex Refineries, Mr Dooley contended that the plaintiff was entirely reliant on the defendants and was vulnerable to harm from their conduct. The plaintiff merely had, it was submitted, reliance on his sight as to the depth of the water and was unaware that once an anchor was deployed that the vessel was liable to move. Mr Dooley argued that the defendants were aware that all other persons on board intended to dive from the second anchor point and were relying upon them to ensure that the position where the vessel was moored was safe to dive and would remain safe to do so until advised otherwise.

135 I do not agree that the avoidance of harm was totally within the defendants’ control. The second and fourth defendants had moved the vessel to a position where they had visually assessed the water to be safe for diving. In the absence of the vessel being fitted with a working depth sounder, visual assessment was the principal means available to them for judging the depth of the water.

136 The second defendant had held a jet ski licence since about 2000. He had been boating a few times with family, friends and cousins and had been on Botany Bay a “few times”. He “guessed” that over his whole life he had been on Botany Bay fifteen to twenty times. The fourth defendant’s boating experience was confined to his trailer boat which he had had for a couple of years. He went boating regularly, mostly on Sydney Harbour or the Hawkesbury River. He did not go boating on Botany Bay. The second defendant had been issued with a boat licence in October 2001 which had expired or had been cancelled on 27 December 2004.

137 Whilst the second and fourth defendants had boat licences and limited boating experience with pleasure craft, the evidence does not establish that any of the defendants had either an expertise in determining water depth or knowledge of any irregularity in the sea bottom in Botany Bay. All of those on board the vessel were adults who were able by visual means to determine for themselves whether they considered the water was safe to dive into. This was what the plaintiff did when he entered the water feet first from the stern at the first anchor point notwithstanding that others had decided for themselves that it was safe to dive in from the bow of the sports cruiser. None of those on board the vessel told the second and fourth defendants that they were reliant upon them to ensure that where the sports cruiser was anchored was safe for diving. When Sam Laoulach dived in at the first anchor point and possibly three times at the second anchor point he exercised his own judgment and did not rely on the judgment of the second and fourth defendants. Although the plaintiff was inexperienced in boating, he was aware that the fourth defendant had come into contact with the bottom of the bay after a number dives had been safely made at the first point at which the vessel had been anchored.

138 Mr Dooley put to me that the plaintiff was entitled to rely on the encouragement of and the assurances, both explicit and implicit, given by the second and fourth defendants that the area was safe for diving. The factual circumstances of the present case were said to be akin to the situation in Berrigan Shire Council v Ballerini [2005] VSCA 159 and Swain v Waverly Municipal Council [2005] HCA 4; (2005) 220 CLR 517.

139 I find little assistance in the facts in Swain which was a jury case. In Swain, the High Court (Gleeson CJ, Gummow and Kirby JJ, McHugh and Heydon JJ dissenting) held that there was evidence capable of sustaining the jury’s findings that the Waverly Municipal Council was negligent in the placement and maintenance of the flags. The present factual circumstances are significantly different to those in Berrigan. In Berrigan, the council had created the park and made the swimming hole and log a recreational attraction, thereby encouraging the use of the log from which Mr Ballerini had dived. The trial judge had found that the council and State Forests Commission knew or ought to have known of the danger of a flood reducing the depth of the swimming hole, thereby creating a hidden danger of serious injury and that each of them could have guarded against that risk by removing the log. Moreover, this was not such a case as in Nagle v Rottnest Island Authority [1993] HCA 76; (1993) 177 CLR 423 where the public authority had promoted the Basin as a venue for swimming and encouraged the public to use it for that purpose and other purposes by maintaining and servicing various facilities on that part of the reserve which was immediately adjacent to the Basin.

140 The second and fourth defendants in moving to and anchoring, the vessel at the second point did not create, nor did they control, the variations in the topography of the sea bottom in Botany Bay. They did not control the plaintiff’s own assessment that the water was safe to dive into. By stating, “that’s far enough” or “that’s deep enough”, the second defendant was expressing his own opinion as to the depth of the water. The fourth defendant looked at the water prior to diving and had formed the view that it was safe to dive in. He did not “make any comment to that effect to anyone else” on board the vessel: ex 4 par 21. They were not creating the risk, or encouraging or enticing those on board into a dangerous situation. There was nothing to suggest to the defendants that the plaintiff and his brother Sam would not exercise, as they had done at the first anchor point, their own judgment before entering the water. I reject the contention that the second and fourth defendants provided any encouragement or assurance to the plaintiff that the area was safe for diving.

141 The existence of a duty of care and scope of the defendant’s duty is to be judged by reference to the relationship between the plaintiff and the defendants, and the defendants’ knowledge of the circumstances and characteristics of the plaintiff: Vairy; Shaw v Thomas [2010] NSWCA 169 per Macfarlan JA at [40]. The defendants were entitled to act on the expectation that the plaintiff would exercise reasonable care for his own safety.

142 Nevertheless, the relationship between the second and fourth defendants and the plaintiff gave rise, in my opinion, to a duty of care. As the operators of the vessel between the first and second anchor points for the purpose of finding a position where they considered the water was deep enough to dive into safely, the second and fourth defendants owed to those on board an obligation to exercise reasonable care in locating that position and then in ensuring that the vessel was not brought back by winds or currents into water that was too shallow for safe diving. The scope of their duty of care was to be measured by the plaintiff exercising reasonable care for his own safety.

143 The relationship between the third defendant and the plaintiff did not give rise, it seems to me, to a relevant duty of care.

Breach of Duty

144 It is common ground that breach of duty is governed by the Civil Liability Act. Section 5B Civil Liability Act provides:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

145 The question of breach of duty of care is to be approached by considering whether there was a foreseeable risk of harm to the plaintiff, whether that risk was not insignificant and by asking, what, if any, precautions a reasonable person in the position of the second and fourth defendants would have taken against any such risk. That inquiry is to be determined prospectively and not retrospectively. The risk of harm to the plaintiff by diving into water of uncertain depth was foreseeable (see [133] above). That risk of harm was not insignificant.

146 The question of whether the defendants’ duty of care has been breached is also to “be judged by reference to the relationship between the plaintiff and the defendant, and the defendant’s knowledge of the circumstances and characteristics of the plaintiff”: Shaw per Macfarlan JA at [40]. The approach to be adopted in considering the precautions a reasonable person in the position of the second and fourth defendants would have taken in the circumstances is to be determined “on the basis of the facts which the defendants knew or ought to have known”: Perry v Harris [2008] EWCA Civ 907 at [36] which was cited with favour in Shaw by Macfarlan JA at [59].

147 The “likely seriousness of the harm” was undoubtedly grave and the “burden of taking precautions to avoid the risk of harm” was not significant: ss 5B(2)(b)-(c) Civil Liability Act. These are factors in favour of the plaintiff’s case.

148 The plaintiff asserted (other than by the failure to use a depth sounder)
the following breaches of duty (PWS at par 113):

“(ii) Failing to monitor the position of the vessel.

(iii) Failing to take a sighting of a land mark when mooring so as to ascertain and be able to ascertain and monitor the vessel’s position (particularly having regard to the fact that it had moved at the previous mooring).

...

(v) Failing to make appropriate allowance for the windy conditions combined with the sandy sea bottom.

(vi) Failing to properly moor the vessel in respect of the length of anchor chain extended so as to ensure that the boat would not drift from its mooring.

(vii) Extending too much anchor line to allow the boat to drift back to a position where there was insufficient water for the purpose of diving.

(viii) Failing to warn persons including the plaintiff that the water depth had changed or that there was a likelihood or a possibility that it could change.

(ix) Failing to monitor the length of anchor chain which was extended or by other means ascertain the exact depth of the water below the vessel at the bow and thereafter continue to monitor it.

(x) Not mooring the vessel far enough out to sea to allow for the drift of the vessel towards shallow waters.

(xi) Failing to immediately ascertain the depth of the water from time to time with rope, the length of anchor line or other means.”

149 In accordance with my finding that the plaintiff has not established that the vessel dragged its anchor either through an inadequate anchor line being extended or by the strength of the wind (see [108] above) I am not satisfied that asserted breaches (v-vii) and (x) have been made out.

150 The second and fourth defendants did not know nor was it suggested that they ought to have known that the topography of the sea bottom in Botany Bay was rarely level and that it was likely that there would be places where shallow banks would be found. There was nothing which indicated to any of those on board the sports cruiser that the sea bottom was not of an even grade and did not increase in depth as the vessel was moved further from the shore. As the vessel was driven towards the second anchor point, the colour of the water became darker and the bottom of the bay could not be seen. The assessment that was made by the second and fourth defendants that the water was deep enough for safe diving was fortified by the dives that were made before the plaintiff’s second dive. Reasonable people in the positions of the second and fourth defendants would have held the belief that the water was sufficiently deep to dive into safely. The second and fourth defendants were entitled, as I have said, to act on the expectation that the plaintiff, an adult, would exercise reasonable care for his own safety before diving. Although the likely seriousness of the harm was grave, the “probability that the harm would occur if care were not taken” was low: s 5B(2)(a) Civil Liability Act. A reasonable response to the risk did not require a warning to those on board the vessel that there was likelihood or a possibility that the water depth could change or that there was a risk of diving into a shallow bank.

151 Mr Burge opined that the defendants could have used means other than the depth sounder to determine the depth of the water. He considered that those means included:

(a) dipping a boat hook or paddle into the water;

(b) dropping a weighted rope or line into the water;

(c) lowering themselves gently into the water, rather than jumping or diving and then simply wading or swimming around the “swinging circle”: ex K tab 3 par 39(c).

152 Mr Burge expressed the opinion that the plaintiff ought to have been instructed by the defendants to drop gently or step “feet first” into the water rather than risk a head contact with the sandy sea bottom.

153 I am not persuaded that reasonable people in the positions of the second and fourth defendants would have responded to the risk of the plaintiff diving into water of uncertain depth by adopting any of these measures. The second and fourth defendants had supported their determination that the water was deep enough for safe diving, by diving in before the plaintiff’s first dive. The fourth defendant had dived in and had swum in the vicinity of the vessel possibly three or four times before the plaintiff’s second dive. Sam Laoulach had also dived in and had swum near to the vessel on three occasions before that dive. Furthermore, the plaintiff at the first anchor point had entered the water feet first and at the second anchor point had had the advantage of making his own assessment of the depth of the water by diving in, swimming to the shore and returning to the vessel before the second dive. In any event, I do not think that any of the measures advanced by Mr Burge would have detected the shallow bank into which the plaintiff dived.

154 As to the assertion that the defendants had failed to monitor the vessel’s position Mr Burge expressed the opinion that the defendants had “failed to keep a good lookout in that they did not recognise that in swinging on its anchor, their vessel was likely to enter shallow waters that they were aware were unsafe for diving”: ex K tab 3 par 46(c).

155 The plaintiff has, I have previously concluded, neither established that the sports cruiser was swinging about on its anchor (see [70] above) nor that the defendants were aware that it was likely there would be places where shallow banks would be found. The evidence of an asserted breach of duty, by failing to take a sighting of a landmark when mooring, was confined to rather circuitous cross-examination of the second and fourth defendants by Mr Dooley. The second defendant was asked by Mr Dooley (T 260 L 48-50 - T 261 L 1-30):

“Q. In terms of being able to determine whether the vessel is moving from it's point of anchor or not, it's necessary for instance have a look at some, a couple of fixtures or a couple of things on the horizon

A. To notice whether the weather has moved or not.

Q. You need to be able to fix your position by some fixed objects on shore, for instance?

A. I usually do that when I'm for instance in the middle of the ocean I can determine by a fixed point on the horizon.

Q. You fix a point or whatever?

A. Yes.

Q. And you understand that if you need to maintain a position for any reason that that's what you do, you get a fix and keep an eye on it, as it were, is that correct?

A. That's correct.

Q. Because it's very difficult to tell if a boat is drifting, isn't it, if it's drifting slowly?

A. If it's really slow it's hard until over time you notice it's moved over.

Q. It's something that you pick up over a period of time?

A. That's correct.

Q. And that is it might take 15, 20 minutes to realise we appear to have drifted for instance?

A. Could be that, depending on the circumstances, weather conditions.

Q. Particularly when you're diving and swimming from the boat because you dive off the front of the boat, you swim to the back and you're effectively drifting back with the vessel if that were the case, isn't that right?

A. Possibly could be the case.”

156 In answer to questions by Mr Dooley on this topic the fourth defendant said (T 282 L 11-32):

“Q. And you know that when you're on board a boat that if the boat is drifting slowly such as driving the anchor through sand it's very difficult to tell just sitting on a boat whether the boat is gradually moving backwards with the wind, is that correct?

A. If it's moving very slowly, yeah it would be hard.

Q. And indeed what is necessary in order to check your position is to take a couple of point of references on land or similar to be able to get a reference point to be able to work out whether the boat is slowly drifting backwards with the wind, is that correct?

A. Can you repeat that question please?”

Q. You know that what is necessary is that in order to ascertain whether your vessel is maintaining its position you need to get a reference point on land somewhere some markers or a point of interest so that you can line things up and by that means determine whether in fact the vessel is moving from its point of anchor is that correct?

A. Yes, but I don't know how accurate that would be.

Q. Well, if you're concerned about maintaining your position then that is the best way to do it, is that fair?

A. If I was concerned, yes it's a good way to do it, one of the ways.

157 Neither the second nor fourth defendant was asked directly by Mr Dooley whether he had or had not in fact fixed a reference point against which the vessel’s position could be checked. There was nothing in the prevailing weather conditions or what had occurred at the first anchor point, which suggested to the second and fourth defendants that the vessel would be likely to drift back into the shallow waters of the first anchor point and the vessel’s position was to be monitored against a landmark. Reasonable people in the position of the second and fourth defendants would, in my opinion, have considered that it was unlikely the vessel would move to any significant extent and that no more was required than checking periodically that the vessel was not being brought back by winds or currents into shallow waters. A reasonable response to the risk did not require a warning that the vessel might move on its anchor line. As I have found that the sports cruiser did not move to any significant extent, I do not consider that the sighting of a landmark by the second and fourth defendants would, in any event, have detected the vessel’s slow movement on its anchor line for a short distance to a shallow bank.

158 I am not satisfied that the second and fourth defendants failed to act in the manner in which reasonable people in their positions would have acted. It follows that they did not breach the duty of care that they owed to the plaintiff.

159 A duty of care imposes an obligation to exercise reasonable care. As was said by Gleeson CJ in Swain at [520]:

“The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours’ keepers, but they are not their neighbours’ insurers.”

Causation

160 The issue of causation is to be dealt with in accordance with s 5D Civil Liability Act. Section 5D is as follows:

“(1) A determination that negligence caused particular harm comprises

the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to

determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

161 The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) in Adeels Palace said at [42]-[45]:

“Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability.

Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd, to be the common law’s approach to causation. The references in March v Stramare to causation being “ultimately a matter of common sense” were evidently intended to disapprove the proposition “that value judgment has, or should have, no part to play in resolving causation as an issue of fact”. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues.

It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied.

Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?”

162 The question of whether the plaintiff’s injury would have occurred but for the negligent act or omission of the second and fourth defendants does not arise as I have found that they were not negligent. The grievous harm that the plaintiff tragically suffered occurred as he exercised his own judgment in deciding to make the second dive.

Dangerous recreational activity

163 In case the conclusions I have reached on the question of breach of duty and causation are wrong, it is appropriate to consider, fairly briefly, the defendants’ contention that if any of them were found to be negligent, they were not liable for the harm suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff: s 5L Civil Liability Act. Section 5L is found in Division 5 (Recreational Activities) of Pt 1A of the Civil Liability Act.

164 The relevant provisions of Division 5 are:

“5J Application of Division

(1) This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff.

(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.

5K Definitions

In this Division:

dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

obvious risk has the same meaning as it has in Division 4.

recreational activity includes:

(a) any sport (whether or not the sport is an organised activity), and

(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.”

165 As obvious risk has the same meaning as it has in Division 4. The relevant provisions of Division 4 are:

“5F Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.”

166 The defendants bear the onus of proof in establishing a defence under s 5L: Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31].

Obviousness of risk

167 It is well established that the question of obvious risk involves the determination of whether the plaintiff’s conduct involved a risk of harm which would have been obvious to a reasonable person in his position: Jaber v Rockdale City Council [2008] NSWCA 98 at [27]. The test is an objective one and must take account of the objective circumstances of the plaintiff: Jaber at [28]. Whether or not a risk is ‘obvious’ may depend upon the extent to which the probability of its occurrence is or is not readily apparent to the reasonable person in the position of the plaintiff: Jaber at [35].

168 In the present case, it was submitted by the plaintiff that the following factors should be taken into consideration (PWS at par 131):

“The vessel was moved by persons who had a license for the specific purpose of diving safely after the last position showed it was not safe to do so.

There was no suggestion that there was some variation in the sea-bed surface.

The colouring of the water was significantly difference (sic) indicating a significant depth.

The diving was taking place from the boat which was not a significant height above the water such as in Jaber where he was diving from a pillar.

Other persons were diving from exactly the same position, that is, off the bow of the vessel and were doing so apparently safely.

The boat had been moored so that one of the persons with the boat license that was controlling the movement and position of the boat, having allowed the anchor line to be extended, would thereby be aware of the depth of the water.”

169 The plaintiff contended that in all these circumstances, the situation was “more akin to a circumstance where a sign had been placed stating ‘you can dive safely here’”.

170 I have previously rejected the plaintiff’s submission that the defendants encouraged or enticed the plaintiff to dive into Botany Bay or gave him any assurance that the area was safe for diving: see [51] and [140] above.

171 The plaintiff was aware that the fourth defendant had hit the bottom when he dived in after the vessel had been anchored for a time at the first anchor point. He was aware that the sole purpose of moving the vessel from the first to the second anchor point was to find a position where the second and fourth defendants considered that the water was deep enough to dive into safely. The plaintiff did not know that the topography of the sea bottom in Botany Bay was rarely level and that it was likely that there would be places where shallow banks would be found. There was nothing which indicated to him that the bottom of the bay was not of an even grade and did not increase in depth as the vessel was moved further from the shore. As the vessel was driven towards the second anchor point the colour of the water become darker and the bottom of the bay could not be seen. The plaintiff had dived into the water safely from the bow of the vessel at the second anchor point, had swum to the shore and returned to the vessel before the second dive. The plaintiff had seen the other three people dive safely from the bow. The plaintiff did not know that between his first and second dives that the sports cruiser had drifted a short distance on its anchor line. Immediately before he made the second dive, the plaintiff noticed that the water was slightly lighter in colour than before the first dive but was still dark blue. The plaintiff presumed that it was the same spot from where he had safely made the first dive. He then exercised his own judgment in deciding that it was safe to dive from the vessel a second time.

172 During cross-examination the plaintiff gave the following evidence (T 46 L 2-4, L 19-29, L 44-50 – T 47 L 1-10):

“Q. You didn't think there was any risk at all associated with diving into the water?

A. Diving in unchartered waters is always a risk, I know that.

...

Q. And you know that there is a risk of suffering a serious injury if you dive into unchartered waters, do you agree with that?

A. Obviously in my case, I would have to agree, wouldn't I?

Q. Yes. I understand it is difficult to go back but you knew even before your accident that diving, using your terminology, in unchartered waters could lead to a risk of a serious injury?

A. No.

Q. No?
A. No.

...

Q. Is the reason that you entered the water in the way in which you say you did, that is feet first, because you were aware that there was a risk of injury if you just dived into water without checking out the depth?

A. The reason why I went in feet first is because I could see the bottom.

Q. Well then, I will ask it another way. You were aware though that there was a risk of injury if you just dived into water without knowing the depth?

A. There would be, that's right.

Q. And one of the things you considered important was to check out the depth before you dived in, is that right?

A. That's correct.

Q. And you were aware that there would be a risk of serious injury in fact if you dived into water of uncertain depth?

A. That's right.”

173 Mr Cavanagh submitted that the plaintiff had acknowledged that diving into the water posed a risk of serious injury. It was therefore perceptible, Mr Cavanagh contended, to a reasonable person in the plaintiff’s position that when he dived off the boat at the time of his injury in circumstances where the depth was uncertain, there was a risk of injury such as to be an obvious risk. The fact that the plaintiff believed that the water was deep enough, as he had made his own assessment of the water’s depth, Mr Cavanagh submitted, did not militate against a finding that there was an obvious risk which would be readily apparent to a reasonable person in the his position. Reference was made to Jaber at [39] where Tobias JA said:

“The fact that the appellant believed that the water was deep enough, because he had purported to check its depth by treading water, does not militate against a finding on the objective facts that there was an “obvious risk” that would be readily apparent to a reasonable person in the appellant’s position. A reasonable person in the position of the appellant, wishing to dive head first from the top of a bollard, two to three metres above the surface level of the water, would not regard that method, if it be such, as a reasonable substitute for testing the depth by the more reliable means of “duck diving” or by jumping feet first.”

174 Although the plaintiff’s attention may have been initially focussed on what he had done before he entered the water at the first anchor point, it is evident from the exchange at [172] above that the plaintiff knew in a general sense that diving into water of uncertain depth might result in serious injury. That was a risk that was apparent to him. It follows that such a risk would have been readily apparent to a reasonable person in his position at least before he made his first dive. The present facts, however, can be distinguished from those in Jaber. In that case, Mr Jaber had not dived in from the bollard before he injured himself nor had he seen others dive from that bollard. He had purported to check the depth by treading water. The plaintiff, in contrast, had dived in from the bow of the sports cruiser, as had his brother Sam and the second and fourth defendants. At least seven dives were made safety from the vessel’s bow before the plaintiff’s second dive. The plaintiff had seen his brother and the defendants safely dive in.

175 A reasonable person in the position of the plaintiff would have held the belief that the water was sufficiently deep to dive into safely. Such a reasonable person, however, would not have considered that there was no risk of injury when diving into the waters of Botany Bay from the bow of the anchored sports cruiser. This was not a case, such as a swimming pool, where the depth of the water was indicated and was certain. The uncertainty and risk of injury from diving from the vessel into the bay had been demonstrated at the first anchor point where there had been safe diving before the fourth defendant had come into contact with the sea bottom. A reasonable person in the position of the plaintiff would have concluded that the risk of harm was low.

176 Whilst his first dive from the bow at the second anchor point and the observations that he made of the other persons who had dived in, may have led him to believe that the risk of harm was low, that does not mean that on the objective facts that there was not an “obvious risk” that would be readily apparent to a reasonable person in the plaintiff’s position. It does not matter that there was a low probability of the risk occurring: s 5F(3) Civil Liability Act. Nor does it matter that the movement of the vessel and the existence of the shallow bank were inconspicuous or not physically observable: s 5F(4) Civil Liability Act.

177 I find that the risk of serious injury to the plaintiff arising from impact on the bottom of the bay upon diving into water of uncertain depth would have been obvious to a reasonable person in the plaintiff’s position: s 5F(1) Civil Liability Act.

178 There is no dispute that the diving into the water from the sports cruiser that the plaintiff engaged in with his brother Sam and the defendants was a “recreational activity” within definition of that term in s 5K Civil Liability Act. The issue is whether it was a “dangerous recreational activity” within the meaning of s 5K Civil Liability Act.

179 A dangerous recreational activity “involves a significant risk of physical harm”. In Fallas v Mourlas [2006] NSWCA 32, the concept of a significant risk of physical harm was explained by Ipp JA (with whom Tobias JA agreed) at [13-18]:

“ I agree with Basten JA that an objective test is required in determining whether in terms of s 5K a recreational activity is “dangerous”.

But what does “significant” mean in s 5K? I think it is plain that it means more than trivial and does not import an “undemanding” test of foreseeability as laid down in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

The epithet “real” was suggested during the course of argument. But “real” can mean a risk that is not far-fetched or fanciful (Wyong Shire Council v Shirt at (48)) and “significant” means more than that.

On the other hand, it seems to me, a “significant risk” does not mean a risk that is likely to occur; that would assign to it too high a degree of probability. Had it been the legislature’s intention to lay down an element for the application of s 5L involving the probability of harm occurring, different words would have been used.

In the present context, the word “significant” - coloured or informed as it is by the elements of both risk (which it expressly qualifies) and physical harm (which is indivisibly part of the expression under consideration) - is not susceptible to more precise definition.

Thus, I do not think it practicable or desirable to attempt to impose further definition on “significant”, other than saying that the term lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Where the particular standard lies between these two extremes cannot be prescribed by any rule of thumb. Each individual case will have to depend on its particular circumstances and by having regard to the ordinary meaning of the term.”

180 Ipp JA in Fallas emphasised at [46–47] that regard must be had to the particular circumstances of each case: see also Jaber at [48].

181 In Jaber, Tobias JA said at [52]:

“The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, ‘significance’ is to be informed by the elements of both risk and physical harm.”

182 It is true, as Mr Dooley contended that the present facts can be further distinguished from those in Jaber where Mr Jaber had dived from a height of two to three metres above the surface whereas there is no evidence of the precise height that the bow of the sport cruiser was above the water level at the time of the plaintiff’s second dive. It may, however, be discerned from the photograph of the vessel (ex A) that the plaintiff dived into the water from an enhanced height.

183 Objectively considered, the risk of the plaintiff suffering serious injury by diving from the vessel’s bow into the uncertain depth of Botany Bay could not be regarded as trivial or very slight. Although the risk of harm was low, the potential harm was catastrophic: Falvo v Australian Oztag Sports Association [2006] NSWCA 17 at [31]. In my view, the plaintiff was engaged in a “dangerous recreational activity” within the meaning of s 5K CLA.

184 The serious injury suffered by the plaintiff resulted from the materialisation of what was an obvious risk of a dangerous recreational activity engaged in by him. Accordingly, the defendants are not liable in negligence for the plaintiff’s injuries: s 5L(1) CLA.

185 In view of the conclusions I have reached, it is unnecessary to consider the other defences raised by the defendants.

Limitation of liability

186 Although the plaintiff has not succeeded in his claim, it is convenient to compendiously deal with the defendants’ contention that any liability to the plaintiff is limited by the Limitation of Liability for Maritime Claims Act (Limitation Act) and the Convention on Limitation of Liability for Maritime Claims 1976 (Limitation Convention). The parties’ agreement as to the quantum of damages was subject to the defendants’ pleading that the Limitation Act applies.

187 An obstacle for the defendants in seeking to limit their liability arises from the limitation under Art 1.2 Limitation Convention being confined to “a seagoing ship.” Art 1 relevantly provides:

“1. Shipowners...,as hereinafter defined, may limit their liability in accordance with the rules of the Convention for claims set out in Article 2.

2. The term “shipowner” shall mean the owner, charterer, manager and operator of a seagoing ship.

...

4. If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner...is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention.”

188 The plaintiff’s claim falls within Art 2.1(a) Limitation Convention being a claim in respect of “personal injury” provided the personal injury occurs “in direct connexion with the operation of the ship.”

189 Mr Dooley contended that there was no evidence that the vessel was a “seagoing ship.” He pointed out that the vessel’s journey was confined to being from Moorebank to Brighton-Le-Sands and reminded the court of the following agreement which he announced (T 295 L 21-29):

“It has been agreed that your Honour would accept evidence that the previous first defendant, Mr Robert El Khoury, who was previously the first defendant in these proceedings and the owner of the vessel in question, that, "During the period of his ownership, it," being the vessel "did not go out - the ownership that he did not go out on the boat outside of Port Hacking." That's the evidence. Just to tell your Honour, it is a question about whether it's a sea going vessel or not is what the issue goes to.”

190 Mr Cavanagh submitted that having regard to the dictionary definitions of “seagoing”, it was only necessary to establish that the sports cruiser was fit to go to sea as a vessel or was capable of being used or suitable for use as a seagoing vessel. Mr Cavanagh placed reliance on Smith v Perese [2006] NSWSC 288 in which Studdert J considered that a vessel five metres in length powered by a 115 horsepower motor and without a cabin was a seagoing ship under the Limitation Convention.

191 The Macquarie Dictionary defines "seagoing" to mean:

“1. Designed or fit for going to sea, as a vessel.

2. Going to sea; seafaring”

192 The Oxford English Dictionary defines "sea-going":

“1. a. Going on the sea, applied to a vessel which makes distant journeys as opposed to a coasting, harbour or river vessel.”

193 In the present case, the sports cruiser is depicted in ex A and its specifications disclose that the vessel has a centreline length of 8.4 metres, beam of 2.59 metres, and cabin headroom of 1.9 metres. The vessel has the sleeping capacity for four adults, fuel capacity of 79 gallons and is powered by a 270 horsepower dual prop engine. It is plain, in my opinion, that the sports cruiser has the capacity to go to sea.

194 Authorities suggest, however, that “seagoing ship” is a general term used to describe any ship that in fact goes to sea and it is irrelevant that a vessel is capable of going to sea if it does not in fact do so.

195 Salt Union Ltd v Wood [1893] QB 370 concerned a screw steamer of about 142 tons gross tonnage used for the carriage of salt upon the rivers Weaver and Mersey from Winsford to Liverpool. In deciding that the ship was not a “seagoing” ship within the meaning of the Merchant Shipping Act 1854 (UK) Lord Coleridge CJ said at 374:

“It is a simple proposition to hold that a sea-going ship means a ship which does go to sea. It is not disputed that this ship does not go to sea...She cannot, to my mind, be said to be a sea-going ship. No doubt she could go to sea; but she does not go”.

196 In Union Steamship Co of New Zealand Limited v The Commonwealth [1925] HCA 23; (1925) 36 CLR 130, Isaacs J at 145 followed what was said by Lord Coleridge CJ in Salt Union Ltd that a sea-going ship “means simply that the ship does go to sea.”

197 Martin Davies and Anthony Dickey observed in their work Shipping Law, 3^rd ed, 2004, p 455:

“A ship is “seagoing” if it actually goes to sea; it is not “seagoing” if it could go to sea, but does not. Thus, for example, the ferries and pleasure craft that do not leave the waters of Sydney Harbour, Botany Bay, Port Phillip Bay, and Moreton Bay, and the inland waterway vessels that ply the Murray River are not protected by limitation of liability. As they are not seagoing ships, they are not protected by the Commonwealth Act...”

198 An interpretation of the term “seagoing ship” in Art 1.2 Limitation Convention so that the term is confined to a ship that does in fact go to sea is consistent with the general rules governing the construction of a treaty which are laid down in the Vienna Convention on the Law of Treaties 1969. Article 31.1 provides:

“General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

199 In China Ocean Shipping Co v South Australia (1979) 145 CLR 172, Barwick CJ observed at 185:

“The policy evident in [limitation provisions] is the protection of the owner engaged in the maritime carrying trade from financial ruin where his vessel causes damage of the described kind.”

200 The decision in Smith v Perese may be distinguished on the facts. In that case, there was evidence that the vessel was being used as an abalone diving boat between the Victorian border and as far north as Kiama. Studdert J found at [183] that it was a vessel which was “regularly used at sea.” In the present case, there is no evidence that the sports cruiser did in fact go to sea. The evidence is that it did not leave the waters of Sydney Harbour and Botany Bay. The sports cruiser is not, in my opinion, a “seagoing ship” within Art 1.2 of the Limitation Convention.

201 Accordingly, I have concluded that the defendants are unable to limit their liability for damages under the Limitation Act and Limitation Convention.

Orders

1. Verdict and Judgment for the second, third and fourth defendants as against the plaintiff.

2. The plaintiff is to pay the costs of the second, third and fourth defendants on an ordinary basis up until 3 May 2010, and thereafter on an indemnity basis.

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LAST UPDATED:
16 September 2010