Barrett v Lets Go Adventures Pty Ltd

[2016] NSWDC 345

District Court

New South Wales

Medium Neutral Citation:	Barrett v Lets Go Adventures Pty Ltd [2016] NSWDC 345
Hearing dates:	9, 14, 15, 16, 17, 20, 21 and 23 June 2016
Date of orders:	25 November 2016
Decision date:	25 November 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff. (2) Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages sum. (3) Defendant pay plaintiff’s costs. (4) Liberty to apply in relation to interest and costs.
Catchwords:	PERSONAL INJURY – action for damages for personal injury under the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth) (“ACL”) as informed by the Civil Liability Act 2002 (NSW) – plaintiff claims damages for injuries suffered while rescuing another diver while on a diving excursion on the defendant’s boat – assessment of expert evidence – credit of plaintiff and of defendant’s witnesses - whether plaintiff a consumer – whether defendant breached ss 60 or 61 of the ACL – interaction of ACL and Civil Liability Act in relation to defence and quantum issues – contributory negligence – failure to mitigate - “good Samaritan” – causation – assessment of damages
Legislation Cited:	Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 3, 60, 61 and 64 Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5G, 5H, 5I, 5K, 5L, 5M, 5N, 5R, 5S and Part 8, ss 56, 57 and 58 Workers Compensation Act 1987 (NSW), s 151Z Uniform Civil Procedure Rules 2005 (NSW), r 31.23
Cases Cited:	Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 AMP General Insurance Ltd v Kull (2005) 44 MVR 339 Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 Cook v R and M Reurich Holdings Pty Ltd [2004] NSWCA 268 Dessent v Commonwealth of Australia (1977) 13 ALR 437 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 Fallas v Mourlas (2006) 65 NSWLR 418 GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Huysse v Snowy Mountains Hydro-Electric Authority (1975) 24 FLR 418 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 50 NSWLR 705 Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 Mason v Demasi [2009] NSWCA 227 Morvatjou v Modadkhani [2013] NSWCA 157 Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583 New South Wales v Moss (2000) 54 NSWLR 536 Nominal Defendant v Kostic [2007] NSWCA 14 Shoalhaven City Council v Humphries [2013] NSWCA 390
Texts Cited:	Dr Michael Eburn, “Liability of volunteers and good Samaritans: making it safe to volunteer or restricting claims for damage?”, (2010) 7(2) CL 14 Review of the Law of Negligence: Final Report (2002)
Category:	Principal judgment
Parties:	Plaintiff: Dean Barrett Defendant: Lets Go Adventures Pty Ltd
Representation:	Counsel: Plaintiff: Mr C Hart Defendant: Mr W Reynolds   Solicitors: Plaintiff: Bale Boshev Lawyers Defendant: Colin Biggers & Paisley
File Number(s):	2015/12071
Publication restriction:	None

Judgment

The plaintiff’s claim for damages for personal injury

1. The plaintiff brings proceedings for damages for personal injury under the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth) (“ACL”) arising out of the circumstances in which he suffered injury while diving from the defendant’s boat in the course of rescuing another diver on 15 January 2012 at Port Stephens, New South Wales.

2. The accident occurred in the following circumstances. The plaintiff, who ran a diving business (Frew Investment Holdings Pty Ltd trading as Charlestown Diving Academy), booked a diving trip for himself, his girlfriend and six other divers with the defendant (“Lets [sic] Go Adventures”, referred to generally as “Lets Go”). The defendant owned two boats operated by appropriately skilled personnel, which were available for individuals or groups to use for diving purposes. Each boat was required to be equipped with appropriate safety equipment such as oxygen tanks, as diving is a high-risk sport.

3. On 15 January 2012, the plaintiff, in the name of his business, had booked to participate in a dive near the SS Oakland, a submerged wreck site, off Port Stephens in New South Wales. The plaintiff’s company had booked other diving trips with the defendant, and received a discount on the group as well as a free spot on the boat for the plaintiff. This meant that the plaintiff’s company received a 20% profit in that they kept the discount and did not pass it on.

4. The plaintiff, his girlfriend and the other divers assembled at the defendant’s premises, where they signed waiver forms before boarding, as well as putting together their diving gear. The defendant’s staff read out a standard safety warning which included a statement that a diver who decided not to dive would not be offered a refund. They then set off on their diving trip.

5. The defendant’s servant or agent, Mr Adam Shorter, stopped the boat near the predetermined diving site. Before they dived, a second safety warning was given to all divers. The divers proceeded to descend for a dive in groups of two (as each diver had a “diving buddy”). The plaintiff had intended to dive with his girlfriend but she went in first (due to seasickness) and, as the last diver off the boat was a Mr Mark Moore, the plaintiff became his “diving buddy”. When Mr Moore came into the water, the plaintiff was already in the water, and said he gave the thumbs up to Mr Moore to come below the surface so that they could start the dive together. Mr Moore’s statement differs on this point, and says that the plaintiff had already submerged.

6. Unknown to the plaintiff, something had just happened to Mr Moore. According to the statement of Mr Moore, he told Mr Shorter shortly after he got into the water, he had been struck on his head by the vessel. Mr Moore asked Mr Shorter if he could return to the vessel and terminate the dive, but Mr Shorter told him to continue to dive down so that he could inform the plaintiff that he was aborting the dive. Mr Shorter denies this conversation.

7. It is not in dispute that, after Mr Moore entered the water, he descended rapidly and in a disorganised fashion to the bottom. His conduct thereafter is recorded on his own “GoPro” video camera, which was attached to his diving suit. This camera records that in response to hand signals from the plaintiff, Mr Moore indicated that he was alright and wished to proceed with the dive. However, he became increasingly unable to cope and, as the GoPro footage shows, was in difficulties.

8. The plaintiff then assisted Mr Moore to ascend to the surface at a relatively fast rate, in circumstances where the plaintiff’s own diving alarms, attached to his wetsuit, as well as those of Mr Moore, were triggered. The question of the relationship of the speed of the rescue to the plaintiff’s injuries is challenged. It does not seem to be challenged (although the defendant’s expert only agreed reluctantly) that Mr Moore was in serious difficulties and the plaintiff probably saved Mr Moore’s life by his prompt actions.

9. When the plaintiff and Mr Moore reached the defendant’s vessel, there was no equipment to help Mr Moore onto the boat. The plaintiff had to help him on board while he was still in the water, with assistance from Mr Shorter on the boat.

10. After being helped on board, Mr Moore was obviously in difficulties and needed oxygen. According to the plaintiff, there was only one source of pure oxygen available to assist a diver who had ascended to the surface too quickly and that was an “Oxy-Viva” unit, attached to a C-size cylinder. This was given to Mr Moore. The only other oxygen source on the boat, according to the plaintiff, was Mr Moore’s own Nitrox “pony bottle” which had a 50% source of oxygen.

11. Mr Shorter disputes this and gave evidence that there were other oxygen sources on the boat available to the plaintiff which the plaintiff did not use.

12. When the boat carrying the plaintiff and Mr Moore reached land, Mr Moore was transported to hospital. The plaintiff went with him to hospital but considered that he did not need any further oxygen. He developed a headache that evening which persisted. He continued to dive but his condition worsened.

13. The principal contested issue on quantum is whether the plaintiff suffered a decompression illness as a result of the dive on 15 January 2012 and, if so, whether all or only some of the symptoms that he later suffered were consistent with such a diagnosis.

14. Both parties called witnesses on issues of liability and quantum; their evidence occupied eight of the ten days taken by these proceedings.

15. In a case such as the present, a significant issue is the reconciliation of different accounts of the events. It is often the case that the question of what evidence is to be accepted will turn on issues of credit of the witnesses. In the present case, while credit plays an important part in the findings of fact, much of the evidence as to what happened on the day can be drawn from contemporaneous and independent information. Before considering the evidence in full I shall briefly note what that evidence is.

Evidence independent of the parties’ recollections

16. Some parts of the circumstances of the dive were recorded contemporaneously:

1. The GoPro camera worn by Mr Moore filmed most of the events which took place underwater. In addition, some areas of the boat, such as the cabin, may be seen on the GoPro footage. This is relevant to the issue of whether there was additional oxygen on the boat, as well as to the conduct of the plaintiff and Mr Moore while they were in the water.

2. Mr Moore, who was too ill to be cross-examined, made a statement which was tendered by the defendant. Its correctness has been adopted by the plaintiff. That statement was prepared for Mr Moore with the assistance of a solicitor (who was not, I was informed, the defendant’s solicitor).

3. The plaintiff made a report of the diving incident to the appropriate authorities, the Professional Association of Diving Instructors (“PADI”) two days after these events. The defendant did not make any report or contemporaneous note of these events.

4. The hospital notes in relation to Mr Moore’s treatment contain information about what occurred. However, the need for caution in relation to the use of such information is well-recognised: Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [55] – [57]; Mason v Demasi [2009] NSWCA 227 at [2].

17. I shall first set out how the parties have pleaded their respective cases.

The structure of the plaintiff’s claim

18. The plaintiff relies upon The Australian Consumer Law as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“ACL”), as informed by the Civil Liability Act 2002 (NSW) (“Civil Liability Act”) (as to the interaction of which in proceedings of this kind, see Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583 at [46], [144] and [50]).

19. The ACL claim may be summarised as follows:

1. Is the plaintiff a consumer within the terms of s 3 of the ACL? The plaintiff’s submits that this issue was conceded by the defendant’s principal Emma Challen at T 425-426 and can be demonstrated to be the case by the payment invoice, in that the plaintiff was receiving what amounted to a discount. The defendant argues that the plaintiff was not a “consumer” as the services in question were provided not to him but to Charlestown Dive Academy. Alternatively, the defendant asserts that the plaintiff was not on the boat as a “consumer”, but within the scope of his employment when he was acting for the commercial advantage of his employer and in circumstances where he had been permitted to enter the boat without charge.

2. If the plaintiff is a consumer, did the defendant breach s 60 or s 61 of the ACL? As is set out below, the plaintiff’s case is that the services were not provided with due care and skill with particular regard to the following:

1. Mr Shorter directed Mr Moore to continue the dive in circumstances where this was a breach of duty of care (T 349 and 469).

2. The defendant allowed the dive to go ahead without sufficient oxygen on the boat and failed to provide and/or give sufficient oxygen for two divers by reason of the fact that there was insufficient oxygen on the boat (see particulars 12(a) and 12(b) of the statement of claim).

3. The plaintiff asserts that there was no “D cylinder” present (T 197) and relies upon expert evidence to the effect that even if it had been present the supply of oxygen on the boat was not sufficient (T 335-336).

4. Other particulars in the statement of claim (an excessive number of consumers, insufficient personnel and failure to comply with diving codes and manuals: see particulars (b) – (f) in the statement of claim) were referred to in passing but were not the subject of submissions, although the diving manuals were referred to by the plaintiff.

20. The defendant says, in response, that the oxygen was available for use, that the plaintiff was provided with oxygen (albeit a 50% Nitrox pony bottle), that he did not display any symptoms or seek additional first aid at the time, that the medical oxygen available did not run out at any time and that the plaintiff failed to use what was available to him.

The interaction of the ACL claim with the Civil Liability Act

21. Counsel for both parties referred me to Motorcycling Events Group Australia Pty Ltd v Kelly where the plaintiff, who was injured while motorcycling at the defendant’s premises, brought a claim very similar in content and structure to these proceedings. The trial judge and the parties proceeded on the basis that it was not necessary to make findings under the Civil Liability Act and defences under this legislation were not dealt with at trial.

22. On appeal, Meagher JA (with whom the other members of the court agreed) started by noting (at [56]) the correct approach to claims of the kind brought by Mr Kelly and by the plaintiff in these proceedings:

“[48] This appeal is primarily concerned with whether s 74(2A) of the Trade Practices Act 1974 (Cth) picked up and applied, as a surrogate federal law, provisions of the Civil Liability Act 2002 (NSW), in particular s 5M (no duty of care for recreational activity where risk warning) to the contract between the appellant and Mr Kelly.

…

[55] The appellant relied, by way of defence, upon certain provisions of the Civil Liability Act to assert that it had no liability to Mr Kelly by reason of s 5I (materialisation of inherent risk) and s 5L (obvious risks of dangerous recreational activities), and that it did not owe a duty of care to Mr Kelly by reason of s 5M (recreational activity where risk warning).

[56] No attention appears to have been given by the parties at trial to the basis upon which these provisions of the Civil Liability Act were applicable to Mr Kelly’s contract claim, although the primary judge did refer (at [26]) to s 74(2A) of the Trade Practices Act in the context of noting that s 5N was inapplicable.”

23. Meagher JA then set out how the Court of Appeal proposed to reconsider these issues:

“[65] Although the primary judge referred (at [11]) to the appellant’s reliance on various provisions of the Civil Liability Act, he did not go on to consider the application of these provisions as a defence to the respondent’s claim; in particular, the “risk warning” defence raised under s 5M. This appears to be a consequence of the primary judge only considering the contract claim and not considering that s 5M might apply to such a claim.

…

[79] The investment of the District Court with federal jurisdiction, enlivened ss 79 and 80 of the Judiciary Act. The operation of these provisions with respect to various provisions of the Civil Liability Act, is considered below.”

24. Meagher JA then considered each of the relevant sections of the Civil Liability Act, which in those proceedings included ss 5K and 5M, and went on to explain, referring to Insight Vacations Pty Ltd v Young (2011) 243 CLR 149, how these provisions should be applied to a claim made under the ACL where the District Court was determining a claim for personal injury. Section 5M was limited to tortious liability and thus was not relevant, whereas s 5K needed to be read in the more inclusive terms of the definition under the ACL (at [127]).

25. Meagher JA went on to explain:

“[140] The appellant’s written submissions contended that s 5B of the Civil Liability Act applied by virtue of s 74(2A) of the Trade Practices Act. However, during the course of oral argument, the appellant accepted that s 74(2A) did not pick up s 5B, as the latter was a state law which applies in determining breach, not a law that limits or preludes liability for breach: AT, tcpt 28, lines 15–31. As explained below, this concession was properly made. This concession led the appellant to rely on s 39(2) of the Judiciary Act, which was raised by a member of the court during oral argument. The unstated premise of the appellant’s reliance on s 39(2), is that the District Court was exercising federal jurisdiction (which is correct), and that s 5B was picked up by operation of s 79 or s 80 of the Judiciary Act. The latter argument is considered below.”

26. This “latter argument” is summarised as follows:

“[148] It may be accepted that the “General principles” in s 5B of the Civil Liability Act (as well as the “Other principles” in s 5C) modify the common law in regard to claims for damages for harm resulting from “negligence”, that is, the failure to exercise reasonable care and skill, to which Pt 1A of the Act applies, whether the claim is framed in contract, tort, statute or otherwise: s 5A(1) of the Civil Liability Act.

[149] The question which arises is can it be said that the Civil Liability Act, in particular ss 5B and 5C, as part of the “statute law in force in the State … in which the court in which the jurisdiction is exercised”, is “not applicable” to the case brought by the respondent by the laws of the Commonwealth, in particular, the Trade Practices Act? In my view, this question should be answered in the negative. This is because, as explained above, the Trade Practices Act does not provide a code as to the standard of conduct required to discharge the implied warranty of due care and skill. Further, the s 5B requirements, and the other principles in s 5C, are not inconsistent with the implied warranty in s 74(1) of the Trade Practices Act.

[150] I conclude that s 80 of the Judiciary Act does pick up and apply s 5B (as well as s 5C) to the respondent’s claim for damages for breach of the implied warranty in s 74 of the Trade Practices Act. On this basis, it is unnecessary to proceed to the next step of considering s 79 of the Judiciary Act.”

27. Although the primary judge had not applied s 5B, the findings of fact were sufficiently well founded to be upheld so that, notwithstanding the error in failing to apply s 5B, the appeal was dismissed.

28. I have set this out in full because counsel for the plaintiff provided me with the first instance judgment and both counsel urged me to follow it. The correct path is, however, that which is set out in the decision of the New South Wales Court of Appeal.

29. The provisions of the Civil Liability Act relied upon by the defendant are:

1. Sections 5R and 5S (contributory negligence);

2. Sections 5G and 5H (obvious risk);

3. Section 5I (inherent risk);

4. Section 5L (dangerous recreational activity);

5. Section 5M (risk warning);

6. Section 5N (waiver, release and indemnity).

30. Two aspects of these defences should be noted. First, in paragraph 8 of his outline of submissions, Mr Reynolds raises the issue of whether the defendant can rely upon the statutory defences within the Civil Liability Act. However, he addressed this on the basis of whether these defences were factually made out, rather than on the principles set out by Meagher JA. Second, it was never entirely clear which of the above list of legislative provisions were in fact the defences moved on by the defendant so, for the avoidance of doubt, I have dealt with all of them.

30. The next relevant feature in relation to the Civil Liability Act is that the plaintiff is pleaded, under s 56 of that Act, to be a “Good Samaritan” (paragraph 12(h) of the Amended Statement of Claim).

The “Good Samaritan” provisions in the Civil Liability Act

32. “Good Samaritan” legislation provides legal protection to a person who gives reasonable assistance to a person who appears to be, or is, injured or in danger, generally in circumstances of emergency. The legislation is designed to protect persons who intervene at risk to themselves. The term “good Samaritan” is taken from Luke 10: 25 – 37, where the parable of the injured man ignored by his fellows but helped by a despised foreigner is set out.

33. Part 8 of the Civil Liability Act (which is headed “GOOD SAMARITANS” in capital letters), introduced legislation of a novel kind, contrary to the recommendations of the Review of the Law of Negligence: Final Report (2002). At p 108 of this report (often referred to as “The Ipp Report”) the committee members stated that additional “good Samaritan” legislation was unnecessary as such persons were already adequately protected, all Australian States and Territories have in fact enacted such legislation (see Dr Michael Eburn, “Liability of volunteers and good Samaritans: making it safe to volunteer or restricting claims for damage?”, (2010) 7(2) CL 14).

34. The relevant provisions are ss 56 – 58, which refer to “good samaritans” in lower case and as a generic term, but I have adopted the more common non-legal spelling “good Samaritan”. Those provisions are as follows:

“Section 56: Who is a good samaritan

For the purposes of this Part, a "good samaritan" is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.

Section 57: Protection of good samaritans

(1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan.

Section 58: Exclusion from protection

(1) The protection from personal liability conferred by this Part does not apply if it is the good samaritan’s intentional or negligent act or omission that caused the injury or risk of injury in respect of which the good samaritan first comes to the assistance of the person.

(2) The protection from personal liability conferred by this Part in respect of an act or omission does not apply if:

(a) the ability of the good samaritan to exercise reasonable care and skill was significantly impaired by reason of the good samaritan being under the influence of alcohol or a drug voluntarily consumed (whether or not it was consumed for medication), and

(b) the good samaritan failed to exercise reasonable care and skill in connection with the act or omission.

(3) This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance.”

35. There have been few cases acknowledging the nature and extent of these provisions or their interaction with the Civil Liability Act, let alone the ACL. The manner in which such a defence should be pleaded is unclear; the plaintiff has included it in the statement of claim, but it may be more appropriate to plead it by way of Reply.

36. In the present case (notwithstanding earlier opposition to the lateness of this pleading), the defendant concedes that the actions of the plaintiff in rescuing Mr Moore as seen in the GoPro evidence (Exhibit A-1A) mean that the plaintiff “may have been a Good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive” (written submissions, paragraph 7). However, the defendant’s submission is that the plaintiff ceased to be a good Samaritan thereafter, as Mr Moore was being cared for by the defendant’s servants or agents who were providing him with medical oxygen.

37. If the plaintiff is a “good Samaritan” (as to which see ss 56 and 57 of the Civil Liability Act), this may prevent a finding of contributory negligence or indeed a complete answer to the other defences in the Act. The precise extent of this argument tended to ebb and flow in the course of the hearing and to err on the side of caution I have first considered each of the statutory provisions in the Civil Liability Act set out in the defence on its merits and then made alternative findings in relation to the “good Samaritan” legislation.

38. The next issue is to determine at what stage, and how, to deal with issues of identification of duty of care as set out in s 5B Civil Liability Act, as the requirements for a precise definition of this duty have required greater specificity in judgments of the New South Wales Court of Appeal since Motorcycling Events Group Australia Pty Ltd v Kelly was handed down.

Identification of the duty of care

39. In a complex factual case such as the present, it is important to identify the duty of care in relation to the Civil Liability Act provisions as early as possible. The defendant submits that its duty of care was “to take reasonable care for the safety of the plaintiff” (outline of submissions, paragraph 5) but that this duty did not extend to instructing, compelling or requiring the plaintiff to use the medical oxygen that he knew was available on the vessel. The defendant’s duty did not extend to doing more than informing the plaintiff that there was medical oxygen on board the vessel, and to making it available to him.

40. The plaintiff submits that this definition of duty of care is so broad as to be meaningless and refers me to the discussion and definition of duty of care by the New South Wales Court of Appeal in Motorcycling Events Group Australia Pty Ltd v Kelly at [4], [34], [46], [151]–[154] and [156]–[158]. The defendant’s servants or agents were specially trained to assist in the oxygen-related emergencies that were such a risk in a hazardous sport such as diving, and the duty of care they owed to their passengers was not merely to have the equipment on board and inform the plaintiff that they had it (neither of which the plaintiff said they did) but to be alert to the risks that they had been trained to recognise and to take reasonable care for the safety of the plaintiff by applying that knowledge to the facts in this case.

Causation, mitigation and s 151Z Workers Compensation Act 1987 (NSW)

41. The principal issue in relation to damages is whether the asserted breaches of duty by the defendant have caused decompression illness and/or a series of claimed injuries which are set out below.

1. If the defendant did breach its duty of care, was that breach causative of injury and loss to the plaintiff?

2. As noted above, the defendant relies on ss 5R and 5S in relation to contributory negligence. The defendant also pleads a failure to mitigate arising from the plaintiff not self-administering the pure oxygen the defendant claims was on the boat and/or not seeking treatment earlier.

3. The defendant also relies upon s 151Z Workers Compensation Act 1987 (NSW). The question is whether the plaintiff’s presence on the vessel was within the scope of his employment and, if so, was the employer negligent in its training and care for the plaintiff and if so, the contribution or percentage to be attributed to any such finding.

Particulars of beach of statutory duty and/or negligence

42. The particulars of breach of statutory duty and/or negligence pleaded in paragraph 12 of the Amended Statement of Claim are as follows:

1. By the defendant’s servants and/or agents, allowing the dive to proceed when they were not equipped with at least two sources of pure oxygen therapy, alternatively, failing to provide a sufficient source of pure oxygen therapy for the journey and the number of divers involved in the dive.

2. By the defendant’s servants and/or agents, failing to supply the services with due care and skill, insofar as the servants of the defendant failed to supply sufficient sources and supply of pure oxygen therapy for the services provided.

3. By the defendant’s servants and/or agents, carrying out the services in such a manner as to cause the plaintiff to be at risk of untreated decompression sickness, likely to lead to the plaintiff suffering severe injury.

4. By the defendant, its servants and/or agents, allowing the services to be provided with an excessive number of consumers, thereby causing compromise of the defendant’s servant’s ability to manage, control and ameliorate the risk of decompression sickness.

5. By the defendant, its servants and/or agents, failing to provide sufficient personnel and devices on the vessel, to effect a rescue or recovery of a diver, such failure requiring the plaintiff to excessively exert himself in rendering assistance from the water.

6. By the defendant’s servants and/or agents, failing to comply with the provisions of the Occupational Diving Operations Australian Standards AS/NZ 2299.3:2003, such failure evidence of the defendant’s breach of statutory and common law duties owed to the plaintiff, or such other codes and manual that inform the duty and standard of care for recreational diving tour operation.

7. The plaintiff repeats the allegations in paragraph 12(a)-(f) above and states the defendant, by its servants and/or agents, breached the provisions of the ACL, insofar as the services provided to the plaintiff were not rendered with due care and skill and breached the statutory guarantee that the services would be fit for the purpose.

8. By the defendant’s servant, advising Moore to continue to dive down from the surface, shortly after Moore entered the water, when the defendant’s servant knew, or ought to have known, that Moore had been struck in the head by the bow of the vessel at that time and had requested to abort the dive, such advice giving rise to a risk of injury to the plaintiff, in so far as Moore was at risk of both uncontrolled descent and ascent (“the risk events”), for which events the plaintiff would be bound to act as a Good Samaritan and/or otherwise come to his aid in those events as his diving buddy and would be at a foreseeable risk of the injury of which the plaintiff suffered.

43. The evidence in relation to these particulars needs to be considered in terms of the disputed issues of fact.

The issues for determination

44. The plaintiff and defendant summarised the factual issues for determination as follows:

1. Did the plaintiff contract with the defendant or did Frew Investments Pty Ltd t/as Charlestown Dive Academy contract with the defendant;

2. Did the defendant supply its services to Charlestown Dive Academy or the plaintiff;

3. Did Mr Moore inform the defendant (through Mr Shorter) that he had struck his head before he dived and did Mr Shorter tell Mr Moore to dive and inform the plaintiff that he did not want to dive;

4. Was there sufficient first aid oxygen available for use on board the Tomaree on 15 January 2012;

5. If so was the plaintiff provided with first aid oxygen whilst on board the vessel;

6. Did the first aid oxygen available on board the vessel run out before the vessel returned to the marina;

7. Did the plaintiff inform Mr Shorter that he was alright (and by inference not in need of first aid assistance) whilst the plaintiff was on board the boat;

8. Did the plaintiff show any signs of or complain of any symptoms that called for treatment beyond what was provided to him whilst he was on board the vessel.

Late applications to amend the statement of claim

45. Both parties made applications to amend their pleadings. In the case of the plaintiff, the most contentious amendment was to add the following paragraph to the particulars of the statement of claim:

“By the defendant's servants advising Moore to continue to dive down from the surface shortly after Moore entered the water, when the defendant's servants knew or ought to have known that Moore had been struck in the head by the bow of the vessel, at that time, and had requested to abort the dive, such advice giving rise to a risk of injury to the plaintiff insofar as Moore was at risk of both uncontrolled descent and ascent (the risk event) for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid in those events as his diving buddy, and would be at a foreseeable risk of injury, of which the plaintiff suffered.”

46. As is set out in more detail below, the plaintiff was served with a statement by Mr Moore earlier in 2016, and informed only shortly before the hearing that Mr Moore was too ill to cross-examine. It was never made clear how long the defendant had been aware of Mr Moore’s evidence about his conversation with Mr Shorter, but this was clearly significant evidence.

47. In granting leave to amend I took into account the circumstances in which the defendant had been aware for some time of the information in Mr Moore’s statement, as well as of his failing health. There was no issue of prejudice and the late amendment was explicable by reason of the late notice of these matters.

48. The amendments to the defence included the pleading of a defence under s 151Z Workers Compensation Act 1987 (NSW) and, although contested, were not controversial.

49. I shall first set out the plaintiff’s evidence as to the contractual arrangements in relation to the dive.

The contractual arrangements for the diving expedition on the defendant’s boat

50. The plaintiff set up a business called Charlestown Diving Academy (through a holding company Frew Investments Pty Ltd) in about 2005 (T 56). A very keen diver who had worked for the navy, the plaintiff had suffered some injuries including a sinus injury. He continued to work as a diver but had to stop diving in about 2002; at the time that he set up the Charlestown Diving Academy, he had been working as a stevedore. He became involved in diving training and offered a course of certification, through the Charlestown Diving Academy, for divers undertaking particular kinds of dives (T 60). The plaintiff was also a rescue diving and dive master, offering speciality courses such as “nitrox, deep, [and] wreck” (T 60) and what he called “technical diving” (T 60). He was able to offer to take divers on tours through boat operators such as the defendant. He described this process at T 61 as follows:

“Q. When you say, "as a booking agent" if you could just describe to her Honour, if you like verbally, how would that work in terms of, for example, if you had a number of customers that want to go on tour how would you engage Lets Go Adventures Pty Ltd, the defendant, to go on a tour?

A. Well essentially somebody would express that they wanted to go on there, or, you know, basically that's probably the main way. And we'd have anywhere from sending one person to a dozen people up there on their set trips.

Q. How did you engage Lets Go Adventures‑‑

A. Phone call. We'd just give them a phone call and see if they had any spots available.

HER HONOUR

Q. I hear what you say, what I want to hear is how did this all come about, how did you meet these people?

A. How did we meet ‑ sorry, how did we meet the people?  Well the people were general customers in our store and they'd say they want to go dive Nelson Bay, so we would ring up Nelson Bay and say, "do you have any spots available?"  And they'd say, "yeah, we can fit them on this day, that day" et cetera.

HART

Q. Did you have any previous relationship with any of the principals of Lets Go Adventures before June 2012, personal relationships at all?

A. Personal, not so much as personal, all professional.

Q. Just professional?

A. Yes.

Q. Did Lets Go Adventures advertise these tours in your shop?

A. Well they have them on their website. Not so much, they wouldn't advertise it, but we would put up a list saying "hey, we may send a group there, if anybody's interested put your name down for it".

Q. And then I think you said you'd make a phone call, do you remember who you'd normally speak to at Les Go Adventures to put these people in the boat?

A. Well originally it was two different people; they've only just bought the business recently, so Chris Norman who I used to deal with, and his wife, Pam. I can't remember the other lady's name who now owns it, but she would be the other one, and also just normal other staff as well; whoever was on the phone on the day.” (T 61-62)

51. Mr Hart then asked:

“Q. Earlier in your evidence you mentioned some names of principals that operated Lets Go Adventures Pty Ltd, and you gave us a couple of names, in the first circumstance that you had customers that came into your shop that wanted to go on a tour, do you remember having a conversation with anyone that ran Lets Go Adventures in order to put people on their tours through your shop?  Do you remember having a conversation at all?

A. It was a given from quite a long period, but there was‑‑

Q. Just a second. Do you remember having a conversation with anyone at Lets Go Adventures about putting people from your shop on their tour, and how that was organised between you and them?  Did you ever have a conversation at all?

A. Yes, there's been various conversations.” (T 62)

52. After he was advised of dive availability dates, he would talk to the customer and arrange a dive as follows:

“Q. In terms of, and I'll use the expression, the deal, did your business benefit at all by booking these customers with Lets Go Adventures?

A. We would get a 20% commission on any customers, and if we got more than five, we would get one free of charge, which we could take in cash or send one of our own people just for experience.

Q. Did that arrangement arise out of the conversations that you've just described?

A. Yes.” (T 63)

53. However, as is noted in the extract from the transcript at T212 – 213 below, the defendant put to the plaintiff that he could not take cash, to which he appeared to agree. Whether or not this was the case, the difference between these two scenarios was never explained in terms of relevance to the ACL claim. One point the plaintiff did not concede, however, was that he received the discount only if a qualified person attended the group (T 213). This is of significance in relation to whether the plaintiff and his fellow divers were consumers.

54. The plaintiff identified the invoice for the dive date in question and identified the persons listed on the dive as himself, Mr Moore, his girlfriend Karen Hetherington and the other persons whom the plaintiff had booked for the diving tour through the plaintiff’s company. He was asked:

“Q. What does that document show you in terms of the arrangement between you and Lets Go Adventures about the cost of the tour?

A. We're talking about the unit cost, which is $70 per head, a free inclusion for myself, cause we got over the five, and 20% commission for the divers that were on the boat.

Q. That next to your name says what?

A. Free inclusion.” (T 63)

55. The terms of this tax invoice are as follows:

“TERMS OF TRADE – 7 DAYS (from Invoice date).

If paid within 7 days all discounts specified apply.

If not paid within 7 days the full balance of $490 is payable.

Direct deposit details: Lets Go Adventures Pty Limited. BSB: 062761, Account: 10068038”

56. The plaintiff went on to clarify:

“Q. Just to deal with a little bit of background to the event that occurred on 15 January 2012, I think you gave evidence about in general terms how the bookings would work, you being in contact by telephone with the servants of Lets Go Adventures. Is that, in general terms, how this arrangement was come to on this particular day?

A. This one would have been booked a few weeks in advance, and we would have said, "Can we have some spots on your boat?"  Yeah, that's how that would have come about.” (T 64)

57. As has been noted above, in addition to receiving a free seat, the plaintiff was keeping the difference between the full price and the discounted price rather than passing it on to the divers.

58. When the plaintiff arrived at the marina in Nelson Bay, the only person present was Mr Adam Shorter, the coxswain on the day. He was unable to tell whether the other persons present were customers or staff (T 65). Everyone had to sign what the plaintiff called “paperwork” at the marina (T 65).

59. The plaintiff described what happened next as follows:

“Q. There is paperwork signed, then what happened?

A. Essentially, everybody grabs their equipment, it's loaded onto trolleys, the trolleys are taken out to the vessel by some staff who usually pull it, usually the customers get in and give a little bit of a hand pushing it, and things like that. Then it's loaded onto the vessel, and once everybody's on board, the equipment's on board, then the vessel proceeds.

Q. At that stage, has anyone got wetsuits on?

A. Usually, not at that stage. You may get one or two who may have a drysuit half on, if they've got special requirements for their drysuits, but yeah, not much. Sorry, maybe there would be some wetsuits on, I don't know. I don't know for every individual, sorry, so I couldn't tell you.

Q. You don't recall, but it's possible that some had wetsuits on, do you say?

A. Some probably had wetsuits on, I don't usually put mine on until I'm on my way out there.

Q. Then the vessel left the marina, I take it?

A. The vessel left the marina, yes.

Q. Who was operating the vessel at that time?

A. Adam Shorter was the coxswain on board that day, yes.

Q. Employed by, as far as you know, Lets Go Adventures Pty Ltd?

A. Lets Go Adventures, that's right.

Q. You left the marina, and you were heading to a wreck, apparently?

A. That's right.

Q. The name of the wreck was what?

A. The ss Oakland.

Q. I don't think this is common ground, but ss Oakland is where exactly?

A. It's in between Broughton Island and I think it's Cabbage Tree Island.” (T 66)

60. One of the issues was whether this was a commercial arrangement. The plaintiff was cross-examined as follows:

“Q. In relation to the booking arrangement, I want to suggest to you that you could have charged your clients any fee you liked for the trip on 15 January 2012?

A. We may have; I don't know. I'd have to go back through invoices.

Q. You could charge more than the $70 for instance?

A. We may have.

Q. Or you could charge less. It'd be unlikely, but you couldn't you?

A. We may of, yeah.

Q. In fact, you're entitled to charge your own clients any fee you like?

A. Pretty much so.

Q. I think you've said, before the adjournment that in relation to the free onboard, and by the free onboard I'm referring to the entry on ‑ do you still have the invoice with you?

A. I don't think so, no.

Q. You'll remember on the invoice that I showed you, which was exhibit B, it your name as the first entry, and it was free?

A. Yes.

Q. And were talking about that free onboard. You said that you can take that as a cash payment?

A. Yes.

Q. I'm suggesting that you could never take that as a cash payment?

A. If you're saying that, you can say that.

Q. Can you direct to any evidence prior to 15 January 2012 you took the free onboard by way of a cash payment paid by Lets Go Adventures?

A. I couldn't say. I couldn't say.” (T 212-213)

61. Mr Reynolds put to the plaintiff:

“Q. I suggest to you that if there was not a Charlestown dive representative, employee, onboard the boat, then you would not get any either credit or monetary payment by way of free onboard for anybody?

A. Well, part of that not's correct.

Q. Which part is not correct?

A. Well, you're talking about we wouldn't get any monetary value as in what?  The commission, is that what you're saying?

Q. No, I'm not talking about that; I'm saying free onboard. There'd be nobody free onboard?

A. Free onboard, if we get that 5FOC, and there's somebody‑‑

Q. You would not get a free onboard for anybody if you didn't put a Charlestown employee onboard the boat with the Charlestown clients?

A. No, that's not correct.

Q. I suggest you only got it because you had an employee on the boat, either you or some other employee on the boat with the Charlestown clients?

A. Not necessarily correct, no.” (T 213-214)

62. However, the basis upon which this meant that the plaintiff’s claim fell outside the ACL was put on very narrow grounds, namely that the plaintiff was not covered either because he was there for free, or because he was technically on the Lets Go staff in exchange for being offered a free seat, or both. Mr Reynolds told me (at T 215) “from the Bar table what the evidence will be” on this issue, namely that if the plaintiff did not put an authorised person on board the boat, then the defendant had to put an authorised person on the boat at their expense to cover the insurance policy of having someone to supervise the divers.

63. In other words, the defendant’s case was that the insured person on board to cover the risk of persons who are brought on board was the plaintiff and not the defendant. Mr Reynolds explained that the defendant “either put the plaintiff on for free or they have somebody else” (T 215).

64. Mr Hart pointed out (at T 216):

“HART: This is a ridiculous proposition, your Honour. If you go to p 72 of the defendant's own exhibit there is a Master Adam and a Dive Director Rowan. Is Mr Reynolds suggesting that on this particular day they delegated responsibilities for the six customers in Mr Barrett's company totally to Mr Barrett, that's repugnant to the facts that they allege, the facts in the document.”

65. As Mr Hart puts out at T 218, this is not pleaded. Essentially, what Mr Reynolds says (T 219) was that when the plaintiff came back on board, the obligation lay with the operators of the boat to all persons, including the plaintiff.

66. The problem is that the plaintiff’s pre-ticket was not really free. It was a free ticket conditional upon payment being made in a prompt fashion, failing which he was liable to pay the full “unit price” at $70.

67. I note in passing that, although not identified with precision, the defendant also appeared to rely upon an alternate basis in its defence, namely that the plaintiff was on the boat for commercial purposes. Although Mr Reynolds did not refer to the similar argument put in Motorcycling Events Group Pty Ltd v Kelly (where the defendant argued that the plaintiff undertook the motorcycling activity which led to his injury for commercial purposes), I apprehend that this was what he had in mind. One of the difficulties with this argument is that this was not put to any of the witnesses (other than the plaintiff, who denied it) and it appears to turn solely on the terms of the ticket.

68. The second challenge to the plaintiff’s ACL claim arose from the signing of the waiter. This documentation that was signed by the plaintiff is described in more detail below by Ms Challen. The plaintiff’s evidence concerning this waiver (at T 223) was as follows:

“Q. Your signature is on the bottom left‑hand corner of the document?

A. Yes.

Q. There's a signature script starting with "I, Dean Bennett", you see that?

A. You're talking about the top left‑hand corner?

Q. At the bottom corner it says, "I, Dean Bennett‑‑

A. The bottom, sorry.

Q. ‑‑by this instrument", et cetera, you see that?

A. Barrett but I'll answer to anything.

Q. Barrett, sorry. No, sorry, my apologies. This was executed by you on 15 January 2012?

A. Yes, all customers have to sign this supposedly.

Q. And it was signed at the shop before you got onboard the boat?

A. That's right.

Q. And it's got a date in the top right‑hand corner?

A. Yes.

Q. You've been on this boat before hadn't you, that is, the Tomaree?

A. On the boat?

Q. Yes?

A. A couple of times, yes.

Q. You'd been on the boat more than a couple of times hadn't you?

A. A couple of times, yes.

Q. A couple is two?

A. I don't know, I just ‑ all right, yes, I've been on it a few times, yes.

Q. I'm suggesting you've been on the boat before 15 January in excess of 20 times?

A. I couldn't give you a number, so ‑ they've got two boats so they've got different boats as well, so.

Q. I understand that but I'm talking about this boat, this is the bigger boat?

A. I haven't got an account, sorry, if you say there's 20 it's 20. I'll give you that.”

69. The plaintiff agreed that all of the participants in the dive had to execute this document and that at the time the boat was about to depart all of the persons on board the boat were addressed by one of the Lets Go personnel, who provided a safety briefing by reading from a card as follows:

“There are a number of safety procedures on this charter boat that you need to be aware of. This is a non‑smoking boat. The engine covers are fibreglass, please do not place any scuba units, weight belts, weight pouches, or tanks on top of the engine cover. It may seem obvious but please do not sit on the engine covers while in your dive gear. There is first aid equipment and oxygen on the boat in the forward cabin. The skipper and the staff are trained in first aid; emergency services can be contacted by radio and mobile phone. There is a life raft and lifejackets onboard. Tomaree has a toilet on board, it's a sea toilet.

Please only flush what has been through your body, a small amount of toilet paper is okay to flush, please use the black button on the wall behind the toilet, hold for at least 20 seconds. Divers are advised to drink plenty of water before and after each dive, there's plenty of water on the boat. If you feel seasick please sit in an area with plenty of breeze and look at the horizon. If you're going to be sick please go to the leeward side of the boat, [sic] the toilet, as this will make you worse. If you choose not to dive for any reason unfortunately we cannot offer you a refund, if however the crew decides the conditions are not suitable for diving you may be entitled to a refund. If you intend to fly on an aircraft the recommended minimum surface interval is 24 hours. If you have a cold, a hangover, or you have any illness in the past week it's recommended that you do not dive.” (T 225)

[Emphasis added]

70. These safety arrangements applied to all the divers on the boat, including the plaintiff. He was treated as a customer of the defendant, not as a crew member.

71. I have highlighted the section about what happens where a diver chooses not to dive, as it is relevant to the determination of what Mr Moore might have thought was the course to take if he had decided not to dive.

72. As set out in more detail below, I am satisfied that the evidence of Ms Challen and Mr Shorter confirms the nature of the contractual relationship between the parties is as contended for by the plaintiff, namely that the contract was made some time beforehand and not on the day of the diving trip. Their evidence similarly does not suggest that the plaintiff was conducting this trip for purposes such as training divers, which is relevant to the question of whether the plaintiff was a consumer.

The plaintiff and Mr Moore commence their dive

73. After the boat left the dock it went straight to the dive site. The plaintiff did not agree that this took about twenty minutes, but agreed that the boat went straight there. Although he did not recall it, he acknowledged that another safety briefing was given. He acknowledged that he could be heard to say (although much later) in the GoPro footage that there was “plenty of O2” on the boat.

74. The plaintiff saw Mr Moore putting on his diving gear, but otherwise could not recall anything prior to getting into the water himself:

“Q. Did Mr Moore say anything at that point about proceeding with the dive?

A. Not that I recall.

Q. Did he say at that point that he wasn't feeling all that well?

A. Not that I recall, no.

Q. Did you hear Mr Shorter say to Mr Moore that he should discuss the dive with you?

A. No, I didn't, otherwise I would have.

Q. Do you remember saying anything to Mr Moore about the dive at that time, that is, when he was putting his gear on?

A. Not that I recall, sorry.” (T 234)

75. The plaintiff said he was in the water and gave Mr Moore the “thumbs up” signal, to see if Mr Moore was ready to dive, to which Mr Moore responded with a similar signal. Mr Moore then submerged and went straight to the bottom:

“Q. You'd already descended when he went below the surface to do the dive, isn't that correct?

A. No. No, we come around the front of the boat and I gave him the thumbs to go down, which he replied. I went down about a metre waiting for him.

Q. That's right. So you were already down about a metre‑‑

A. About a metre, yeah.

Q. ‑‑before he descended?

A. Before he descended, yeah.

Q. But when he then descended he went straight past you, you said?

A. Yeah.

Q. And he kept going?

A. He kept going.

Q. That's pretty unusual, isn't it?

A. Well, no, a lot of guys go down fast because they try to maximise their bottom time with the air that they've got, so what was unusual was the arms flailing everywhere, yeah.

Q. The arms were failing everywhere, and you and he in the buddy process‑‑

A. Mm.

Q. ‑‑involves you and your buddy staying reasonably close together?

A. That's right. That's why I chased him down, yeah.

Q. And the fact that he just went straight past you‑‑

A. Yeah.

Q. ‑‑without engaging in what might be called the buddy process, was indicative of something a bit strange itself, wasn't it?

A. Not necessarily, no.

Q. It certainly wasn't what you had intended to have happen?

A. Well, I intended to go down the line. Usually we just swim down the line hand over hand.

Q. That's what you through was going to happen with Mr Moore, as well; that you were going to go down the line. Whether you held on or not, you were just going to follow the line down to the wreck, weren't you?

A. Every diver has their own way of descending, sorry.

Q. Somewhere along the line between the surface and the 26 metres, Mr Moore would have had to have equalised for his ears, the pressure on his ears, wouldn't he?

A. He would have somewhere, yes.

Q. But you didn't see him stop to do that?

A. I didn't see him do anything, so, exactly, I just‑‑

Q. He just went straight to the bottom?

A. Yeah, pretty much. He may have been ‑ you can also equalise by moving your jaw as well, so he may have been doing that, swallowing. So there's other ways to equalise.

Q. In any event, whilst he was ‑ when he was on the bottom and from we see ‑ I think you said there was about four minutes into the dive when the video picks us up, picks you up?

A. That one particular video, yes.

Q. From that moment he was clearly in a bit of trouble wasn't he?

A. It didn't look normal. Yeah, I could tell he was in trouble he just didn't look normal.” (T 234-236)

76. As the above cross-examination shows, it is not in dispute that it was at about this time that Mr Moore turned on his GoPro camera. The fact that he did so is, I consider, indicative of Mr Moore’s intention to continue with the dive, notwithstanding any earlier statements to Mr Shorter to the contrary.

77. The incident from this time onwards was filmed by Mr Moore’s GoPro camera.

The GoPro footage

78. As noted above, Mr Moore, the “diving buddy” of the plaintiff, was wearing a GoPro camera on his diving equipment. Forty-three minutes and twelve seconds of video has been recorded. That footage is part of Exhibit A.

79. I will not set out the whole of this transcript in full, but will note that, from shortly after the time of Mr Moore’s descent to the bottom, even without the benefit of the expert testimony which I heard, it is obvious from the reaction of the plaintiff that he is coming to realise that there is something wrong (in fact, Associate Professor Mitchell makes the same observation at the commencement of his report), but that Mr Moore is giving him hand signals indicating a wish to continue diving and that as part of this process of confirmation, he is seen turning on and using the GoPro.

80. As the transcript of the GoPro records, the footage starts with the plaintiff trying to stabilise Mr Moore’s balance in the water. Mr Moore can be heard to be breathing very quickly. After the plaintiff let go of Mr Moore, he commenced to fall to his right, bouncing on one knee as he tried to regain his balance. As early as 35 seconds into the footage, the plaintiff can be seen removing Mr Moore’s 50% nitrox pony, which he later said in his evidence was because he thought this was affecting Mr Moore’s balance. Mr Moore can be seen leaning to his right. At 1 minute 28 seconds, Mr Moore can be heard breathing fast, and the transcript goes on to describe what can be seen on camera, namely that Mr Moore is in increasing distress, having trouble clearing his mask and being given assistance from the plaintiff. These actions are more accurately described by the expert witnesses and by the plaintiff in their evidence, so I will not summarise them further.

81. Although Mr Moore initially indicated that he was “okay” (see the entry at 3 minutes 26 seconds), by 9 minutes 22 seconds, Mr Moore has indicated he wanted to abort the dive and the plaintiff is heard to say “go up”. The rapidity of their ascent is described by the expert witnesses. The first alarm goes off at 11 minutes 14 seconds as the plaintiff and Mr Moore are ascending out of control. Multiple alarms are heard going off for a second time at 11 minutes 34 seconds and the footage shows the plaintiff and Mr Moore ascending at a fast rate in what is described in the transcript as “uncontrolled ascent”. Further alarms can be heard to go off on Mr Moore’s suit at 12 minutes 54 seconds; the plaintiff can be seen trying to grasp Mr Moore and slow down their ascent. At this stage the plaintiff’s alarms are heard to go off for the third time. Mr Moore surfaced at 13 minutes 12 seconds after activating his GoPro. He was unconscious.

82. It is at this stage that the plaintiff yelled out “hey” to the boat (at 13 minutes 22 seconds) as he had had no response to his inquiries from Mr Moore, who appeared to be unconscious. It is clear from the GoPro footage that there is no one to be seen on the boat and that there was no response from the boat. Alarms can be heard going off. The plaintiff is clearly trying to get Mr Moore to respond by calling out his name and putting his regulator back into his mouth, despite him being unconscious and unresponsive. During the whole time that the plaintiff was tolling Mr Moore back to the boat, there was no response from the boat lookout. Mr Shorter is seen at 13 minutes 54 seconds, leaning over the side of the boat. Music can be heard playing inside the boat cabin.

83. The plaintiff passed Mr Moore’s camera to Mr Shorter, who placed it in the wheelhouse while the plaintiff continued to toll Mr Moore to the stern of the vessel.

84. Between 14 minutes 10 seconds and 22 minutes 39 seconds, the camera is in the wheelhouse; only some noise can be heard due to the music which was playing. It is during this period that the plaintiff was trying to haul Mr Moore up the boat to where Mr Shorter was, but this could not be done as Mr Moore’s equipment was too heavy for him to be lifted onto the vessel. The plaintiff climbed up the ladder to take off his own equipment and then returned to the stern of the boat to enter the water.

85. By this stage, according to the transcript of the dive, Mr Moore’s face had turned blue, as Mr Shorter had not kept his airway open. The plaintiff said, “Fuck, I think he is dead”, and re-established Mr Moore’s airway by tilting his head back. As Mr Shorter was unable to lift Mr Moore out of the water, the plaintiff placed Mr Moore over his shoulders and swam, carrying Mr Moore to and up the ladder. He received limited assistance in this task from Mr Shorter, who indicates later that he had injured his arm trying to hold and lift Mr Moore. Mr Moore regained consciousness on the last step or two on the ladder and was able to assist the plaintiff who was struggling to lift his weight. The plaintiff asked Mr Moore to lie down but he refused. Mr Shorter can then be seen retrieving a portable oxygen unit which was set up on the back deck.

78. The footage resumes at 22 minutes 39 seconds, with the plaintiff, Mr Moore and Mr Shorter entering the wheelhouse. Mr Moore is using the same oxygen unit but it is unseen on the footage. The plaintiff returned to the back deck after helping Mr Shorter take Mr Moore to the wheelhouse and went to recover his own equipment which had been left on the deck.

79. The following conversation can be heard at 22 minutes 39 seconds:

Adam Shorter: “Just fucking sit here brother.”

Mark Moore: “is your arm alright?”

Adam Shorter: “Hey.”

Mark Moore: “is your arm alright?”

Adam Shorter: “I just got arm pump from lifting ya… Did some working out.”

Adam Shorter: “Just relax ok.”

Mark Moore: “Can we get a bucket in this area?”

Adam Shorter: “Hey.”

Mark Moore: “In case I spew, I don’t want to spew on the floor.”

Adam Shorter: “That’s alright.”

[Adam Shorter gets a bucket.]

88. Thereafter Mr Moore is heard coughing and possibly throwing up. The plaintiff comes to the wheelhouse, as Mr Moore is in there by himself without a first aid assistant. He said to Mr Shorter, “I’ll find out what’s wrong with him”, and Mr Shorter said, “okay”, turning off the music in the wheelhouse. The plaintiff said to Mr Moore:

The plaintiff (whilst slapping Mark Moore on the back): “Just trying to get rid of it are you?”

Mark Moore: “Yeah! It’s fine, I just swallowed some water.”

The plaintiff: “Okay, get that oxygen on as soon as you can mate.”

Mark Moore: “Yeah as soon as I get this up.”

The plaintiff: “Get the oxygen on, you’re wasting it.” (Continuous flow oxygen mask)

Mark Moore: “Yeah I am mate I am.”

Mark Moore: “I just don’t want to.”

The plaintiff: “That’s alright, just take it off when you really need to throw up.”

Mark Moore: “Can you do me a favour? Hold the bucket in front to tip it in.” (Mark Moore then proceeds to clear nose into bucket)

89. The plaintiff then assisted Mr Moore, saying, “come on, put it back on, oxy back on, put the oxy on.” He continued to urge Mr Moore to use the oxygen, telling him to “suck in that air, you need to take nice deep breaths”. At 26 minutes 32 seconds, the plaintiff can be heard to say, “we both got to be monitored that’s all, make sure nothing happens I need to be safe myself, nowhere near deco [sic] anyway”.

90. The GoPro footage shows Mr Moore’s dive computer still attached to his equipment. No other 100% oxygen unit can be seen, nor has one been offered to the plaintiff. This is despite the plaintiff having given the first indication that he is at risk as well. Mr Moore can be heard to say he is sorry and the plaintiff reassures him. Two persons are heard to speak to each other outside the wheelhouse but Mr Shorter has not returned to the wheelhouse because he is assisting the other divers get back on board. There was no one else to assist Mr Moore except the plaintiff. Mr Moore said he remembered blanking out for a minute and the plaintiff told him that he was blue when he got to the surface of the water. The following conversation occurred at 28 minutes 13 seconds:

The plaintiff: “Your mask was flooded, you had your nose sticking out like that. Your mask was here and your nose was sticking out.”

The plaintiff: “So what we are going to do is… get your wife to take you up to the hospital just for a check-up alright, because they’re going to have to, so take the oxy with you.” (Indicates that it is a totally portable unit, i.e. Oxy-viva with “C” size cylinder)

Mark Moore: [Undecipherable]

The plaintiff: “Hey”

Mark Moore: [Undecipherable]

The plaintiff: “Sorry! I can’t hear you.”

Mark Moore: “I’m going to the John Hunter?”

The plaintiff: “John Hunter, yeah? Yeah.”

Mark Moore: “That would be the better one mate.”

91. The following events occurred at 28 minutes 52 seconds:

The plaintiff: “Well you might want to go to the Medical centre at Nelson Bay?”

The plaintiff: “I would recommend you go to purely because they have O2 there and can have a quick look at you and organise you for transport to John Hunter. Alright?” (According to the plaintiff’s notes, at this time it seems the plaintiff is already aware of the lack of oxygen.)

The plaintiff: “Now I think the Medical is at Shoal Bay.”

[Mark Moore starts coughing again with the sound of oxygen escaping via positive pressure therapy mask.]

[The plaintiff grabs Mark Moore’s 50% Nitrox bottle for himself.]

The plaintiff is heard to say to someone, “Mark Moore, grab two other tanks.” (According to the plaintiff’s notes, at this period the plaintiff is searching for other alternatives for the lack of oxygen and oxygen units and Mark Moore’s 50% Nitrox was the next alternative.)

[Mark Moore continues coughing.]

92. The following conversation occurs at 30 minutes 35 seconds:

The plaintiff: “Alright, you sound like shit buddy, you alright? Feel better? Worse?”

Mark Moore: “Yeah, nah, nah, can’t feel worse.”

The plaintiff: “Can’t feel worse?”

Mark Moore: “Feel better.”

The plaintiff: “Feel better, ok you need to keep sucking that oxygen in.”

Mark Moore: “[Undecipherable]… water”

93. At 31 minutes 15 seconds, Mr Moore can be seen on camera with the positive pressure oxygen mask on. The divers roll is called at 31 minutes 35 seconds. At 32 minutes 36 seconds, Mr Shorter shuts off the oxygen at Mr Moore’s request while he is coughing, mentioning shutting off the therapy switch on the oxygen unit, which is noted in the transcript as confirming that this is a portable oxy viva type unit. Mr Shorter is heard to say, “We have plenty of air, plenty of O2, but?” Mr Moore can still be heard to be coughing. At 33 minutes 29 minutes, the plaintiff is heard to start coughing and the following is noted in the transcript:

[The plaintiff starts to cough]

The plaintiff: “That’s me mate.”

[The plaintiff grabs the 50% Nitrox pony bottle belonging to Mark Moore.]

Mark Moore: “Where’s mine?” (Mark Moore referring to the Pony bottle in the plaintiff’s hands not realising it is his.)

The plaintiff: “Hey? We are going to get it now, only cause we didn’t do a safety stop. Ahhh!” [Both the plaintiff and Mark Moore continue to cough. This is the first indication of the plaintiff in distress.]

94. The boat was still anchored at this time. The boat crew, all of whom had previously been diving, were now trying to recover the rope which was still attached to the wreck and the vessel motors can be heard starting up and straining. A diver had to go down to retrieve the mooring line.

95. At 34 minutes 49 seconds, the plaintiff can be heard to say to Mr Moore “Okay get back on the O2 mate.” The vessel gets underway at 36 minutes 21 seconds, which is approximately 23 minutes from the time that Mr Moore had surfaced in distress. No radio call had been made to emergency services, although as is noted in the transcript, the plaintiff had asked if the incident had been “called in” (paragraph 73 of the transcript). At 36 minutes 27 seconds, the plaintiff can be heard to say, “Just take it easy dude and suck that air”, while coughing himself while random breaths of the 50% Nitrox pony bottle, as well as looking after Mr Moore. No other first aid had been rendered to either the plaintiff or Mr Moore, apart from the supply of oxygen to Mr Moore.

96. At 36 minutes 51 seconds, Mr Shorter can be heard to say, “What do you want to do Dean? Did you want to drive him up to the Multi Clinic or call an ambulance?” While this was under discussion, Mr Shorter noted that Mr Moore was “very oxygenated now” because his cheeks were red, so the plaintiff said to Mr Shorter, “I’ll pinch your oxygen and that off you.” Mr Shorter replied, “Hey?” and the plaintiff repeated, “I’ll pinch your oxygen for a while and bring it back”, meaning he would take it with him to the clinic for Mr Moore.

97. At 39 minutes 45 seconds, the plaintiff is heard to be saying, “Might come and suck some with you too mate just to be on the safe side”. The plaintiff sat down next to Mr Moore with the 50% Pony bottle. He had been standing the whole time attending to Mr Moore prior to this. Mr Shorter replied, “Yeah get into that Dean” and the plaintiff is heard to be breathing from a regulator and coughing. Mr Shorter said, “You alright?” The plaintiff replied, “Yeah, I just got… [undecipherable]”. Mr Shorter’s reply is undecipherable and more coughing is heard.

98. The footage ceases at 43 minutes 12 seconds.

99. The accuracy of what is heard on the GoPro footage is not in question. While parts of the conversations cannot be heard because of the music or because the words are undecipherable, it records, in more or less real time, the events of the time from the time that Mr Moore activated the camera when in the water.

100. What had happened to Mr Moore before he got into the water? This was the subject of a statement given by Mr Moore.

Cross-examination of the plaintiff concerning the events on the GoPro

101. The plaintiff was asked why he had not been “far more forceful”, aborted the dive and physically dragged Mr Moore to the surface. The plaintiff replied that he attempted to abort the dive two or three times but Mr Moore would not do so, and he could not leave Mr Moore alone because of the “buddy” system:

“Q. But this guy was a really ‑ he was a 100 plus diver dive, he was a very experienced diver?

A. Yep.

Q. Yet he was behaving in this odd manner?

A. Yep, that's right.

Q. Why didn't you abort the dive?

A. I did, I told you before. Within that missing four minutes I tried to abort it three or four times. Sorry, two or three times.

Q. But why didn't you exercise your authority and abort it?

A. Because both guides have got to agree to it. So one up, we bunny pairs we went up, I can't leave him.

Q. But you're the more experienced out of the two of‑‑

A. At the time I didn't know anything, I didn't know he'd been impacted with the boat, so I had no idea what was going on.

Q. Why didn't you just say to him that's it?

A. The only way I could know was physically grab him and drag him up. When he's going that he's okay and then asking me about the light on the camera, yeah, that's all I can go in, what he ‑ you know the actions, so yeah.

Q. But why didn't you take hold of him then if that's the case?

A. Because that's not what you usually do, so, sorry.

Q. Well what ‑ if a person's in trouble below the water‑‑

A. Yep, it's easy to make ‑ sorry, keep going?

Q. If a person is in trouble below the water and you see that he's in trouble below the water you don't just let him carry on do you?

A. When you see somebody playing with your camera you're not sure what's going on. So when they say they're okay. When you signal okay and they give an okay back that's usually standard.

Q. Yes, but there was a lot of aberrant behaviour as well as what you call standard behaviour, wasn't there?

A. Yes.” (T 238)

102. At about 15 minutes it was clear Mr Moore was seriously affected and the plaintiff was able to start the ascent with him. This can be seen on the GoPro, and the alarms of both divers can be heard to go off:

“Q. It looks to me like if you take it from the very time you first went below water‑‑

A. Mm‑hmm.

Q. ‑‑to the time you first came back up on top of the water‑‑

A. Mm.

Q. ‑‑the total time is about 17 and a half minutes?

A. Yes. If that's what it is that's what it is.

Q. The alarms that are on your equipment?

A. Yes.

Q. We've heard that they were activated from time to time?

A. Yes.

Q. A couple of alarms, I'm not saying two, but there were a number of alarms that were activated as you were rising?

A. Yes.

Q. Alarms are on your hand, aren't they, they're on your wrist?

A. No, it was on my chest for that reason.” (T 243)

103. These questions are based upon two observations of Associate Professor Mitchell at page 7 of his report. First, Associate Professor Mitchell starts by saying that these events “could not have been predicted nor prevented by any plausible action on the part of [the defendant]” and that it was the divers’ responsibility, in that their conduct underwater “was entirely their responsibility”. In this regard, while the plaintiff could be “commended to some extent for being a reasonably attentive buddy”, he could also “be criticised for not being more proactive in managing what was clearly a deteriorating situation as the dive progressed.” The plaintiff’s “lack of decisive leadership” meant that earlier intervention “may well have prevented the subsequent rapid ascent and its alleged consequences” (page 7 of the report dated 25 January 2016, Exhibit 1, Tab 1).

104. The plaintiff had seen Mr Moore behaving normally seconds before, on the boat, and had no way of knowing that in the interim he had suffered a blow to his head which he had reported to Mr Shorter. The plaintiff saw Mr Moore descend very rapidly to the bottom but Mr Moore then continued to give the plaintiff indications he wished to go ahead and, significantly in my view, was seen by the plaintiff “playing” with his GoPro camera, a clear indication of a wish to continue the dive. Mr Moore was an experienced diver, not an ingénue. The plaintiff intervened and acted swiftly as soon as it became apparent that Mr Moore’s difficulties were serious.

105. I accept the plaintiff’s evidence that his conduct in this regard was reasonable. The relevance of this evidence to the issues of liability is, however, limited, and was addressed only briefly by counsel. How late Mr Moore was brought to the surface after he got into difficulties is of little relevance to the disputed issues of fact. One of the difficulties I have with Associate Professor Mitchell’s report is that he has expressed opinions upon issues of liability which have no basis upon the legislative framework in which the plaintiff’s claim is brought and are based upon information later found to be incomplete (in this case, the evidence of Mr Moore was not available to him).

106. I have set out below why I am satisfied that Mr Moore did tell Mr Shorter that he struck his head before he dived. I formally note there is no evidence that the plaintiff saw this or knew that Mr Moore said that this had occurred.

107. The second issue, namely the rate of ascent, was addressed by the experts in their evidence, and is dealt with in that part of the judgment.

108. The third issue, namely the plaintiff’s delay in seeking medical attention, is dealt with in the part of this judgment relating to causation and quantum.

109. I briefly note, at this juncture, that Mr Moore’s statement was tendered because his death was imminent. That tender was agreed to by the plaintiff. However, Mr Reynolds then made an application to call Mr Moore notwithstanding the peremptory tone of the medical certificates advising that he was in no state to give evidence, even by telephone. I set out my reasons for rejecting that application.

The evidence of Mr Moore

110. As is set out below, Mr Moore was diagnosed with only a few weeks to live prior to the hearing commencing. The defendant sought leave to tender a statement prepared by his solicitor on the basis that Mr Moore was too ill to be cross-examined. Although that tender was initially resisted, the objections were withdrawn.

111. The text of that statement sets out the relevant events as follows:

“1. I had made arrangements with Charlestown Dive Academy at Nelson Bay to participate in a diving course regarding Oakland Shipwreck. The dive was to be undertaken with Dean Barrett of Charlestown Dive Academy at the Oakland Shipwreck. The course was “Advanced Nitrox - Instructor Dean Barrett”.

2. The Oakland Shipwreck was in water of approximately 27 feet.

3. I arrived at the dive shop at Nelson Bay at approximately 7:30am on the morning of 15 January 2012.

4. I ensured that my equipment was ready to enable me to proceed with the dive.

5. I asked Dean Barrett to check the setup of the regulator on my equipment I was concerned that I had not prepared the regulator correctly.

6. I observed that Dean checked the hoses and regulator on my equipment Dean then said words to the effect “it is connected correctly”.

7. The dive that was to be undertaken was with two (2) Nitrox tanks, a tech BCD and a pony tank.

8. Prior to embarking on the boat which was to take us to the dive the plan in relation to the dive was not discussed with Dean in any detail.

9. When I arrived at the boat I commenced putting on my diving equipment. A person Rowan said to me words to the effect “the hoses are not connected correctly”. I then said to Dean words to the effect “I don't want to go ahead with a dive as I don't feel right”. Dean replied “shut up and get ready”.

10. When we arrived at the site of the dive Dean entered the water first.

11. I plunged into the water feet first with my equipment on. I endeavoured to find the rope to guide me to the dive area. A swell in the water lifted about the bow of the boat and caused the bow of the boat to strike me on the head.

12. Dean had already submerged for the dive without me.

13. After the bow of the boat struck me in the head I said to the staff on the boat that I was aborting the dive.

14. The staff on the boat advised me that I would have to tell Dean that I wanted to abort the dive. However Dean had already submerged toward the dive site being the Oakland Shipwreck.

15. I submerged for the purpose of locating Dean to advise that I wished to abort the dive. I did not feel well and wanted to abort the dive and get to the surface as soon as possible.

16. I felt very unco-ordinated while diving and felt that my balance in the dive was not appropriate.

17. When I located Dean he took my pony tank and later my gopro [sic] camera.

18. I signalled to Dean that I was aborting the dive and returning to the surface. Dean did not assist me to return to the surface. I recall that I was making a motion of riding a bike which was something a diver in distress sometimes does.

19. During my ascent to the surface I stopped on the way up but only for a few minutes. I had my computer watch on my wrist. The computer watch is designed to warn a diver if a diver is ascending too quickly. The watch did not give any indication that I was ascending too quickly.

20. I do not recall reaching the surface. I am of the view that I must have lost consciousness. When I came to, someone had manoeuvred me to the ladder of the boat.

21. The staff on the boat were yelling at me “to get my arse in the boat”.

22. I somehow managed to pull myself up the ladder of the boat and got into the boat.

23. I cannot recall whether my diving equipment was removed in the water or on the boat.

24. When I gained access to the boat the staff on the boat gave me oxygen.

25. I was still feeling unwell and vomited. I vomited up some blueberries that I had eaten for breakfast that morning.

26. After being ill I sat in the cabin of the boat with the skipper of the boat and Rowan. The skipper of the boat and Rowan had placed an oxygen mask on and I was breathing oxygen.

27. When breathing the oxygen I observed that Dean was outside the cabin talking to other people on the boat.

28. I have no recollection of Dean asking for oxygen. I am aware that there were other tanks on the boat I recall Dean saying that he was "okay", Dean was talking with everyone on the boat during the journey back to shore and showed no signs of distress.

29. Dean checked on me occasionally whilst I was in the cabin returning to shore.

30. It appeared to me that the staff on the boat were concerned about my physical condition.

31. On return to the marina at Lets Go Adventures, I overheard some of the staff saying to Dean words to the effect “he should be taken to the polyclinic to be checked out”. The suggestion that I attend the polyclinic was not Dean's suggestion but rather that of the staff at the Lets Go Adventures.

32. Dean accompanied me to the polyclinic at Nelson Bay. Whilst at the polyclinic Dean did not ask for any treatment.

33. I was assessed at the polyclinic by a doctor. I was then observed by camera by a doctor from John Hunter hospital.

34. The doctor from the John Hunter hospital suggested I attend at the Prince of Wales hyperbaric chamber. I was taken by Westpac Rescue Helicopter to the Prince of Wales Hospital. I understand my attendance at the Prince of Wales Hospital was a precautionary measure. I was placed in the hyperbaric chamber at Prince of Wales Hospital for approximately 15 minutes.

A. I can't answer that. I can't recall that point, so I don't know.

Q. I understand you can't remember but surely that would be a matter that you would have told them at that time had you been experiencing significant headaches?

A. I just needed that certificate so I just told them what they need ‑ I need for my certificate, so yep, to keep my business running.

Q. I understand you say you want to keep your business running ‑ and I think her Honour's going to get cross if you keep hitting the table.

A. Sorry.

Q. I understand you want to keep your business running but you were there to get a medical certificate to say you can go diving weren't you?

A. Yes.” (T 281)

338. The plaintiff said that he still gets headaches and that “I have one right now” (T 289). As a result, he was obliged to take frequent rests during the day:

“Q. Apart from doing the tax reconciliation documents what other financial management work do you do?

A. They ‑ there's some domains there which we mentioned earlier, so.

Q. Do you do anything else

A. Work wise for the company, no.

Q. Did you do anything else other than working, doing the bookkeeping work, for the company?

A. For other companies, no.

Q. Could you do bookkeeping work for other companies?

A. Probably not.

Q. Why not?

A. Because I don't have the training to start with so I don't have the certifications.

Q. Apart from doing, I think you said the bookkeeping takes about 16 hours a week?

A. That's right.

Q. Is that done on each day?  Do you do some of it each day or do you do it on some days and then do nothing on other days?

A. No, I try and do a bit each day and I split it up. I might do an hour here, an hour there or two hours here, depends on how I feel, how, what things stop me, headaches, et cetera, et cetera.” (T 291)

339. As is noted above, the plaintiff developed his first significant headache on the evening of the day of the incident. All of the evidence points to these headaches continuing and worsening.

340. Associate Professor Bennett sums up the evidence on the issues as follows:

“Mr Barrett has been seen by two neurologists concerning his ongoing symptoms, and in particular his ongoing right frontal headaches. Both Dr Katekar and Professor Colebatch suggest the primary problem now is related to a syndrome of either migraine or tension vascular headache and Professor Colebatch specifically suggests an element of anxiety. I believe these assessments are reasonable and likely to explain the current situation. They do not imply that the genesis of the problem was anything other than the original injury in January 2012. In my opinion the transoesophageal echo and procoagulant screening are unlikely to further explain the current symptom pattern.

The neuropsychological report from Dr Hepner largely concurs with the general impression that Mr Barrett is displaying complex chronic illness behaviour. Her comprehensive report identifies Mr Barrett as displaying specific deficiencies in memory, attention, emotional control and areas of frontal executive function. She agrees that this pattern is consistent with DCI. She recommends treatment for sleep apnoea, memory training and cognitive behavioural therapy may improve his symptoms and this seems entirely reasonable to me. In my opinion, her report is entirely consistent with the reports from the two neurologists and all together these show a complex post-injury complex of symptoms.

The report from Dr O’Sullivan is broadly consistent with my views here. I am able to answer the question raised by him as to whether the current picture can be related to the original episode of DCI in the affirmative. I can confirm that DCI, particularly when untreated, may well be associated with ongoing complaints, some of which may never completely resolve.” (Report of Associate Professor Michael Bennett, 30 October 2015)

341. I accept Associate Professor Bennett’s analysis of the cause of the plaintiff’s ongoing right frontal headaches. While anxiety plays a role in those headaches, as Professor Colebatch suggests, I am satisfied that the anxiety and depression are also accident-related. The headaches are part of the plaintiff’s complex chronic illness behaviour but that behaviour is attributable to the accident.

The plaintiff’s ear problems

342. It is not in dispute that the plaintiff had suffered tinnitus for about 20 years prior to the incident, as noted by Dr Fernandes on page 1 of his report. He had also suffered prior middle ear incidents as is noted by Associate Professor Bennett, but Professor Bennett is of the view that these have no bearing on his current condition and are not pathologically related:

“Contemporaneous medical records regarding this episode are not available for examination. Mr Barrett gives a history of middle ear barotrauma of descent whist engaged in diving activities as a Navy diver. He recovered fully from this by his own account. I do not believe these have any bearing on his current condition and this is not a condition related pathologically to DCI.” (Report of Associate Professor Michael Bennett, 30 October 2015)

343. Dr Fernandes considers there is no hearing loss attributable to the incident:

“The hearing loss is confined to both sides to only 3 and 4 KHz, denoting an occupational noise exposure cause and unattributable to the incident. Tinnitus is only assessable in the presence of a hearing loss. As there is no hearing loss attributable to the incident, the WPI is 0% (Workcover Guides Chap 9.11 p 48)” (Report of Dr Fernandes, 9 October 2015)

344. Dr Kertesz considered the plaintiff’s hearing loss was due to another condition known as presbyacusis rather than inner ear DCI.

345. The plaintiff did not initially complain to doctors about suffering from tinnitus, as he acknowledged in cross-examination. He acknowledged that he had had tinnitus for 20 years, as well as an operation for an unrelated ear condition (exostosis) which he said was “like swimmers’ ear”, but that this was unrelated to tinnitus. He had tinnitus continually and it had been much worse since the accident.

346. Tinnitus and hearing loss are two different conditions. Dr Fernandes in his report says that “tinnitus is only assessable in the presence of a hearing loss”, which I apprehend to mean that tinnitus can be measured where there is hearing loss, but if there is no hearing loss the presence of tinnitus cannot be assessed. Dr Fernandes did, however, assess the plaintiff as suffering from 5% whole person impairment for his vestibular function being affected and this condition alone (the existence of which is not challenged) creates problems for the plaintiff’s hearing.

347. I am satisfied that the plaintiff has not suffered hearing loss but has suffered loss of vestibular function of the kind described by Dr Fernandes.

348. The evidence in relation to aggravation of the plaintiff’s pre-existing tinnitus being of an unsatisfactory nature, I propose to limit my findings to the loss of vestibular function described by Dr Fernandes.

The MRI lesion

349. As Associate Professor Bennett notes in his report, this lesion appears to pre-date the incident and has little bearing on the plaintiff’s current state of health:

“In this I am guided by the expert opinion of Dr Katekar. I believe his conclusion that this lesion predates the incident in January 2012 means it can have little bearing on his current state of health. The lesion does not seem to have been associated with any pre-accident symptoms or signs and I believe it represents an incidental finding.

Professor Colebatch has suggested some further investigation that might have a bearing on this assessment. I note a small patent foramen ovale (PFO) has been noted on transoesophageal echo and that there are plans to have this closed. On balance, given his long and uneventful diving history and the failure of published work to demonstrate a significant association between small PFOs and serious DCI, I believe it remains unlikely that the MRI lesion has any bearing on his current health.” (Report of Associate Professor Michael Bennett, 30 October 2015)

350. As noted above, I am satisfied that the plaintiff’s injuries arise from his decompression injuries rather than the lesion, and accordingly this plays no part in the plaintiff’s injuries either by way of an explanation for his symptoms or as an injury caused by the incident.

The patent foramen ovale (“PFO”)

351. As noted above, the PFO is excluded as being either a cause or a result of the plaintiff’s symptoms. I note the explanation of this abnormality by Associate Professor Bennett as follows:

“The PFO is a developmental abnormality that would have been present since birth. The natural history is for such holes to close or get smaller over time, but a proportion of adults continue to have demonstrable connection between the two atria of the heart. The PFO was in no way caused by the incident.

The potential significance of the PFO is rather the reverse. The PFO may have allowed the passage of bubbles from the right side of the circulation, where they are often harmless, into the left heart and then into the brain where they have caused the clinical injury. In the case of Mr Barrett I think this is unlikely given that the hole is very small, and small holes have not been associated in the past with serious DCI, and because of Mr Barrett’s previous extensive diving history without DCI.

The investigations ordered by Professor Colebatch are both part of a search to determine if the passage of a small blood clot through a PFO may have caused the MRI abnormality at some time in the past. I am not expert to answer that question, but it appears unlikely to me.” (Report of Associate Professor Michael Bennett, 30 October 2015)

352. I am satisfied that this condition plays no part in the plaintiff’s injury-related health either as a cause or a result of the circumstances of his accident.

The plaintiff’s surgery

353. The plaintiff underwent surgery to his left elbow on 6 May 2015 to remove a loose body from the elbow. This also required drilling a core into the elbow. This operation was performed by Dr Petrelis.

354. The defendant submits there is no evidence the plaintiff struck his left elbow and therefore no explanation as to how the subject accident could have resulted in a “loose body” being in the plaintiff’s elbow. No report from Dr Petrelis is available.

355. The plaintiff agreed he did not report any elbow problem, saying he needed a medical report to keep his shop open and minimised his symptoms accordingly. He had no recollection of striking his left elbow on 15 January. It was as a combination of his neck, shoulder and elbow problems, together with the fact that his memory was so bad, that his ability to work was limited.

356. The problems with the plaintiff’s left elbow became apparent when the plaintiff went to Queensland for the purpose of having further investigations into his ongoing problems. He had been diagnosed with serious and potentially fatal brain injuries and he was anxious to ensure that these were properly investigated.

357. The circumstances in which the plaintiff’s injury to his elbow occurred cannot be established. Even on the basis of “possibility” (Tubemakers of Australia Ltd v Fernandes (1976) 10 ALR 303), the plaintiff has not discharged the onus of proof pursuant to s 5D that this injury is causally related.

Conclusions concerning the plaintiff’s non-economic loss

358. All of the evidence points to the plaintiff suffering from chronic and unremitting symptoms of physical pain and impairment in his neck as well as intellectual problems and a degree of memory loss. This has been added to by a secondary injury to his right shoulder following a related fall resulting from his dizziness. He can never dive again, a significant loss for someone who lived for diving. In addition to memory lapses he suffers from significant anxiety and depression problems as the medical reports set out above indicate. These include mood swings as well as depression. These are significant problems because the impact of the loss of his main interest in life, which is also his career, has clearly hit him hard.

359. Both the plaintiff and defendant have given realistic and sensible estimates for general damages. The plaintiff submits it is 30% and the defendant submits it is 26%. I am satisfied that 29% is a realistic estimate, taking into account the severity and unusual nature of a number of the plaintiff’s ongoing disabilities. The increase in tinnitus to which he refers would make little difference, and the surgery performed by Dr Petrelis I find to have been unrelated has now resolved this problem, so my findings on these issues do not warrant a significant revision of the plaintiff’s claim for non-economic loss. Accordingly, the plaintiff is entitled to non-economic loss at 29%.

Past and future out-of-pockets

360. Past out-of-pocket expenses have been agreed at $51,419. This figure will need to be adjusted to remove any sums claimed for the plaintiff’s elbow surgery. As I was not given a breakdown for this figure, it is not possible for me to make this reduction. I have granted liberty to apply in relation to damages generally and this adjustment can be included in the mathematically agreed judgment sum.

361. The plaintiff makes no claim for future out-of-pocket expenses because of his Royal Navy Veteran’s Gold Card which covers him as a form of private policy of health insurance.

The parties’ methodology in calculating past and future economic loss

362. The plaintiff’s assessments for past and future economic loss are set out in the schedule above. The defendant’s estimate of past economic loss at $47,000 is arrived at by being based on the net income as disclosed in the plaintiff’s 2010-2011 income tax return, namely $440 net per week for 212 weeks, being $93,280 less 50% for retained capacity, making a total of $47,000. The future economic loss is similarly calculated at 50% of $440 net per week times 625, minus 15% for vissicitudes ($440 x 50% x 625 x 0.85), namely $117,000 (rounded up from $116,875).

Past economic loss, past loss of superannuation and Fox v Wood

363. The plaintiff’s figure for past economic loss is formulated on an allowance of $1,000 gross and $812 net.

364. The plaintiff particularised his past and future economic loss in his statement of claim as follows:

“15. The Plaintiff, prior to his injury, was self-employed through his company Frew Investment Holdings Pty Limited t/as Charlestown Diving Academy. Since the injury he has suffered various periods of total and partial incapacity and thereby claims economic loss, on the basis that he was unable to participate in any remunerative employment since the injury.

16. The Plaintiff also alleges, as a result of the injury, he will have impairment of his ability to engage in work on the open labour market, including work in fulltime and unrestricted duties and claims to be compensated in a manner to be determined by the Court for such future losses.

17. The Plaintiff alleges he has also suffered loss of opportunity to receive employer sponsored entitlements to superannuation, presently 9.5% of gross salary, and claims for such loss in a manner to be determined by the Court.”

365. The plaintiff’s evidence was that after he became unable to dive he simply shut down his shop. As is set out in the schedule of damages set out above, the plaintiff’s claim is not based on what the company could afford to pay him (which was $440 per week) but for a loss which more accurately reflected the plaintiff’s actual loss of his business. This was done on the basis of average weekly earnings.

366. The defendant’s submission was that this was an incorrect basis upon which to determine the plaintiff’s past and future economic loss. The plaintiff had been working at the diving academy since appropriately 2005. He stopped carrying out more lucrative work in order to set up the diving academy. His tax returns show in the year immediately preceding the accident he was earning $440 net per week. The defendant accordingly submitted that his income should be calculated on a net income of $440 per week, and not on the average weekly earnings.

367. Mr Reynolds accepted that the tax benefits of the plaintiff’s company were considerable, but argued that this would sound in economic loss rather than non-economic loss. While he lost the advantage of having his own company, including the benefit of having his company pay personal expenses such as telephone and car benefits (as is set out in the company tax returns) he has lost that benefit.

368. This is not a case where the plaintiff has deliberately understated his income in order to avoid income tax: AMP General Insurance Ltd v Kull (2005) 44 MVR 339.

369. The New South Wales Court of Appeal considered this issue in Morvatjou v Modadkhani [2013] NSWCA 157. Mr Hart also referred me to Dessent v Commonwealth of Australia (1977) 13 ALR 437, a decision discussed in New South Wales v Moss (2000) 54 NSWLR 536 at [86] as follows:

“[86] It is true that in some cases the courts have supplemented exiguous evidence by resort to judicial notice. The courts have inferred that rates in private employment are not lower than in public employment. Thus in Dessent v Commonwealth of Australia (1977) 51 ALJR 482; 13 ALR 437, Mason J and Aickin J were prepared to assume that the earnings of a carpenter in civilian life would be not less than those of the plaintiff carpenter while in the Royal Australian Air Force, that is, $100 per week net, and said (at 487; 447): “it would be reasonable to assess the appellant's loss of earning capacity at not less than 25 percent of his full capacity, that is $25 per week …”. In Leis v Gardner (at 187), Stable J thought it “notorious that an unskilled man does not overall get the same economic rewards as a skilled man. Were it otherwise, then why bother acquiring a skill at all?” He upheld a verdict of which one ingredient was $500 for loss resulting from incapacity to work as a bricklayer despite the lack of evidence of the difference in earnings. But in many instances substantial damages have been assessed for impaired earning capacity despite an absence of evidence about earnings and an inability to take judicial notice of them.”

370. The Court of Appeal went on to note at [87]:

“[87] In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allan v Loadsman [1975] 2 NSWLR 789 at 792 are not correct: Baird v Roberts [1977] 2 NSWLR 389 at 397–398, per Mahoney JA; J K Kealley v Jones at 732–735, per Moffitt P; Yammine v Kalway at 154–155 and 156–157, per Reynolds JA and Mahoney JA; Thiess Properties Pty Ltd v Page (1980) 31 ALR 430; see also Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 761, where Samuels JA criticised the “meagre facts” provided but did not say it was not open to the jury to find a substantial sum for diminished earning capacity by the “application of their own knowledge and experience”. The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury's task satisfactorily.”

371. In the present case, there is extensive information in the form of vocational assessments carried out by the plaintiff’s company’s workers compensation insurer. It is generally agreed that, as Associate Professor Bennett notes, the plaintiff can never dive again. He clearly has a residual earning capacity, although his loss of intellectual function is asserted to warrant a 70% deduction of his earning capacity.

371. The plaintiff’s whole work history has involved being a diver, working in constructions and in and around ships since he was 18 years of age, including eight years in the navy. It is acknowledged that the uncertainties of his past financial arrangements would warrant a higher than usual percentage of vicissitudes (an unusual submission since the defendant left these vicissitudes at 15%). There is also the question of the plaintiff’s veteran’s entitlements, but the information I have on this is limited and as Mr Reynolds did not deal with it, I do not propose to do any more than note it.

372. The plaintiff has suffered a loss of opportunity of the Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 variety, in that he has been obliged to close down his business and reorganise his life. In those circumstances, the average weekly earnings, as opposed to the actual earnings the company was able to give him of $440 a week (which Mr Hart noted in submissions should have been $1,000 per week), is not an accurate guide.

373. Taking all of the above into account, I propose to use the average weekly earnings of $1,000 gross and $812 net per week. Given the long drawn out process of the plaintiff identifying precisely what was wrong with him (which I note included a trip to Queensland for extensive further investigations), I am satisfied that the figure of 70% for past economic loss as estimate by the plaintiff is reasonable. Accordingly, I would award the plaintiff past economic loss in the sum of $142,760 sought by the plaintiff. This would include past superannuation of 11%, which totals $15,705.

374. I also note that there is a Fox v Wood adjustment to be made. This will need to be adjusted as well (see the figure referred to in the plaintiff’s schedule). As I have granted liberty to apply, the parties may either adopt the figure given by the plaintiff for Fox v Wood or seek liberty to apply if this figure cannot be mathematically agreed.

375. This brings me to the question of the plaintiff’s future economic loss.

Future economic loss and future loss of superannuation

377. The plaintiff’s claim is for 70% of current average weekly earnings of $1,112 net per week with a factor of 625, less 20% for vicissitudes, making a total of $389,200. While I accept the percentage for current average weekly earnings, the vocational reports do demonstrate that the plaintiff has an ability to work and I accept the submission of Mr Reynolds that the percentage should be 50% and not 70%. I also accept the 20% vicissitudes figure estimated by the plaintiff. Accordingly, the sum in question will be $1,112 x 50% x 625 x (100% - 20%), making a total of $278,000. The plaintiff is also entitled to future superannuation at the rate of 13.79% of net future loss.

Costs and interest

378. The plaintiff has been successful on all issues, save for some findings in relation to tinnitus and the elbow surgery. Costs should follow the event.

379. I have granted liberty to apply in relation to costs and interest as the parties have asked if they could address these issues after judgment has been handed down.

Orders

1. Judgment for the plaintiff.

2. Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages sum.

3. Defendant pay plaintiff’s costs.

4. Liberty to apply in relation to interest and costs.

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Decision last updated: 13 December 2016