Fitzgibbon v The Waterways Authority and 2 Ors

[2002] NSWSC 1230

CITATION:	FITZGIBBON v THE WATERWAYS AUTHORITY & 2 ORS [2002] NSWSC 1230
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20293/99
HEARING DATE(S):	5-6, 9-10, 12-13, 16, 19 September 17 October & 15 November 2002
JUDGMENT DATE:	20 December 2002
PARTIES :	Plaintiff: Daniel Fitzgibbon 1st Defendant: The Waterways Authority 2nd Defendant: The Middle Harbour Yacht Club 3rd Defendant: Mosman Municipal Council
JUDGMENT OF:	Newman AJ at 1

COUNSEL :	Plaintiff: D.A Wheelahan QC / I.D. Cullen 1st Defendant: A.C. Bridge SC / M. Fordham 2nd Defendant: R. McIlwaine SC / R. Cavanagh 3rd Defendant: P. Taylor SC / S. Glascott
SOLICITORS:	Plaintiff: Paul A. Curtis & Co 1st Defendant: McCabe Terrill 2nd Defendant: Riley Gray-Spencer 3rd Defendant: Phillips Fox
CATCHWORDS:	Negligence - onus of proof - independent witness - statement against interest.
DECISION:	see paragraph 42

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Friday, 20 December 2002

20293/99 FITZGIBBON v THE WATERWAYS AUTHORITY & 2 ORS

JUDGMENT

1 HIS HONOUR: This is a claim for damages for personal injuries suffered by the plaintiff on 29 March 1997. His injuries occurred when he entered shallow water from a jetty that formed part of the premises occupied by the second defendant, the Middle Harbour Yacht Club. After entering the water the plaintiff’s head struck the sandy bottom of Middle Harbour causing him severe injuries resulting in him becoming quadriplegic.

2 There are three defendants in the action. First, there is the Waterways Authority of NSW to which I shall refer as D1. The second defendant is the Middle Harbour Yacht Club to whom I shall refer as D2. The third defendant is the Mosman Municipal Council to which I shall refer as D3.

3 The plaintiff’s case as set out in the DCM documents filed in court and adhered to in the course of the trial by the plaintiff is as follows:-

“The plaintiff, who at the time of sustaining injury was aged 20 years of age, was present at a large social function conducted at the licensed premises of D2, the Middle Harbour Yacht Club, on the night of 29 March 1997. The aforesaid premises, including a boardwalk/jetty area where the social function was being conducted, were upon land owned by the D1. The plaintiff was in a group of people adjacent to the edge of a boardwalk/jetty which led to a marina where boats were moored. Below the jetty where the plaintiff stood was an area of shallow water and sandy bottom. The plaintiff fell from the jetty area and struck his head on the sandy bottom, causing serious injury, principally quadriplegia. There was absent any handrailing on the water edge of the aforesaid boardwalk/jetty area to prevent the plaintiff’s fall from the boardwalk/jetty, there was no warning sign as to the shallowness of the water below the boardwalk/jetty and the state of lighting was such as to deceive persons as to the depth of available water. The owner and the occupier, and the responsible local government authority, failed to ensure that appropriate safety features were incorporated into the built premises to prevent the plaintiff’s entry into the shallow water.”

4 Not only was D1 sued as the owner of the land involved but also in its capacity as an authorising authority for structures which persons wish to erect on waterside land.

5 The plaintiff’s case as to how it was that he fell from the jetty was either:-

a. that he fell from the jetty having been jostled by other persons upon it, or
b. that, while on the jetty, he was pushed by some person or persons who were also upon it causing him to fall.

Essentially it was the plaintiff’s case at trial that the failure of the defendants in their various capacities to ensure that a handrail had been erected along the jetty’s edge was the key factor in the events which led to the plaintiff entering the water. In short, the plaintiff’s case was that the defendants’ failure to ensure that a handrail was built along the jetty’s edge was a breach of their respective duties to obviate the risk of injury to persons on the jetty.

6 On the other hand as part of the cases presented by the three defendants they all alleged that the plaintiff did not enter the water as a result of falling because he had been either jostled or pushed but rather as a result of him deliberately entering the water by diving from the jetty’s edge. In other words, the defendants contended that the plaintiff’s entry into the water was the result of his own deliberate act and that the presence or absence of a handrail on the jetty’s edge was irrelevant to his mode of entry.

7 The defendants also raised defences based upon a variety of matters going to the duties respectively owed by them in their various capacities. In view of the conclusion I have reached as to the prime factual issue in the case it is not necessary for me to detail the nature of those defences or the material raised by the defendants in support of their various cases on these aspects of the matter.

8 I turn then to the evidence called and tendered before the court on the prime factual issue.

9 The plaintiff deposed that during the Easter weekend in 1997 he was a resident, as he still is, of the state of Queensland. He was in Sydney at that time to take part in a yachting regatta involving the yachting class known as 420. Also participating in the regatta was the young man called Nathan Wilmot. Wilmot had in fact won the last regatta held in the 420 Class which had been held in Tasmania the year before. I shall return to the evidence relating to Wilmot later.

10 The regatta was held at two venues during that weekend – one venue being at Woollahra (from whence the plaintiff had participated) and the other at Middle Harbour.

11 As I understand the evidence the competitors in the regatta were young people. The plaintiff himself was born 15 June 1976 and was thus 20 as of 29 March 1997. On the evening of 29 March 1997 a social event known somewhat extravagantly as a Yachtmen Ball was organised for the competitors. The venue for this social event was the Middle Harbour Yacht Club.

12 The plaintiff attended the function. He arrived at the Middle Harbour Yacht Club at about 8pm by which time darkness had fallen. Prior to arriving at the yacht club the plaintiff believes he had consumed a beer with dinner. After arriving at the yacht club and having paid the small admission price charged he proceeded to enter the premises.

13 The premises consisted of two arms. At the northern or land end of the premises stood a two-storey building. From that building a boardwalk and then a jetty extended out into Middle Harbour. The function was being held on the lower floor of the two-storey structure. Later in these reasons I shall give a detailed finding describing the relevant features of the structure.

14 I return to the plaintiff’s evidence.

15 The plaintiff socialised for a while with other persons at the function. He believes that he had a rum and coke to drink.

16 During the course of the day the plaintiff had learnt that the participants in the regatta had decided to dunk Wilmot in the water because this tradition had not been carried out at Hobart where, as I have already said, Wilmot had been victorious. As I understand the evidence given in the matter the process of dunking the winner of the regatta is a similar tradition to that participated in by rowers when a successful crew dunks the coxswain at the completion of a race.

17 As I have said the plaintiff socialised with other persons at the function for some little time before an event involving Wilmot occurred. The plaintiff deposed in chief as to how he became aware that something was going to occur to Wilmot at the function (T27):

“Q. What was the first indication that something was happening that you became aware of?
A. I was out on the timber deck next to the bar when I heard a bit of – bit of – maybe a bit of joking around, bit of laughing, and I glimpsed through – I looked through the crowd and I saw a group of people around Nathan Wilmot leading to the edge of the timber deck and I thought, yep – and I thought, yeah, okay, Nathan, they are going to dunk him in the water for – for the previous regatta and I thought, okay, I will make my way to the edge and have a look at it happen.”

18 The plaintiff then moved to a position near a light post on the jetty. There was no issue at the trial as to where the plaintiff had taken himself. Annexed to these reasons is a sketch plan prepared by a Mr Henstock, an engineering expert called on behalf of the plaintiff, which clearly indicates where the plaintiff was on the jetty immediately before he entered the water.

19 Again there was no dispute at the trial that along the eastern edge of the jetty there was a raised plank painted white which formed a type of kerb along that edge of the jetty. The plaintiff’s estimate of the height above the jetty floor of that raised plank was 200mm. As I have said I shall give a detailed description of the physical features of the jetty later in these reasons.

20 On reaching the point marked by an “X” on the sketch map annexed to these reasons the plaintiff said that he saw Wilmot standing in the water probably ankle- or knee-deep in the water. While he had heard a splash he claims that he did not see Wilmot actually enter the water. As the plaintiff looked down at Wilmot in the water Wilmot was to his right. In chief the plaintiff then deposed as to how it was he entered the water:

“Q. --what you experienced?
A. Well, it was a nudge from behind as I was on the edge which put me off balance and it – and I couldn’t recover because my feet were butted up against this raised timber edging, I couldn’t put my feet out to stop my momentum so I just fell forward.
WHEELAHAN: Q. Do you recall anything about the way in which you fell?
A. With regard – sorry?
Q. You have told his Honour that there was this nudge from behind?
A. Yes.
Q. You lost your balance, you went forward?
A. Yep.
Q. Do you recall what inclination you adopted as you went down?
A. Well, I think I tried to--
HIS HONOUR: No, no.
WITNESS: Sorry, I tried to counteract it by putting – by swinging my arms back.
WHEELAHAN: Q. Did that do any good?
A. No, no, I just toppled there.
Q. What did you strike?
A. The bottom, the sandy bottom it was.
Q. With what?
A. My head.
Q. What did you notice about yourself?
A. I didn’t notice anything at the time. I did black out. The next thing I remember, I – it was quite a bit of commotion and water and – and looked up and there was Nathan Wilmot looking down at me and I noticed I couldn’t control – like I couldn’t stand up or couldn’t control what was happening.”

21 The plaintiff maintained that description during cross-examination. However, in answer to questions put to him by senior counsel for the first defendant the plaintiff denied that he had dived into the water. Not only that, when it was put to the plaintiff that he had later in the evening told a doctor at North Shore Hospital that he had entered the water by reason of diving he claimed that he had no recollection of any conversations with doctors at the hospital.

22 I turn then to my finding as to the nature of the structure from which the plaintiff entered the water. Mr C.W. Henstock, an engineer, whose report was tendered as well as him giving evidence in the matter on behalf of the plaintiff gave what in my view was the best description in the evidence relating to the structure itself. In this regard Mr Henstock’s evidence was not challenged. I thus adopt his description of the jetty as my finding in the matter. In his report he described the jetty as follows:-

“The timber jetty structure at the Middle Harbour Yacht Club pertinent to the Fitzgibbon accident is of timber deck on timber beam and timber pile construction. This style of jetty construction is common within Sydney Harbour and surrounding waterways for private residential, Club and marina facilities. The jetty forms an access way from the entrance to the Yacht Club premises, along the front of the Club Meeting Rooms and Marina Office, leading to a security gate entrance to the marina facilities and berthing area. The jetty is of irregular shape and width, as shown on sketch 99/053-SK1 in Appendix 1. The Fitzgibbon “accident” reportedly occurred when Mr. Fitzgibbon was standing at he north-eastern edge of the jetty, approximately 3.1 metres south (or landward) of the security gate entrance to the marina berth. This position is shown marked “X” on sketch 99/053-SK1.
As can been seen from the above-mentioned sketch, the accident occurred at that section of jetty located between the north end of the Yacht Club building and the entrance gate to the northern marina berths and jetties. The jetty in this area varied in length from 5.1 metres (along the western edge), to 6.15 metres (along the eastern edge), decreasing in width from 4.5 metres adjacent the end of the building, to 3 metres at the marina berths entrance gate. The walkway access from the Yacht Club entrance to this area of jetty is 1.34 metres in width, being defined on the eastern side by a 125mm wide x 70mm high timber edge strip and by a white paint line on the western (or building) side. The variable width area of timber deck between the paint line and the building (meeting rooms) was, on the occasion of both site visits, occupied by tables and seating. A light post with a fluorescent, bollard style, light fitting is located on the eastern edge of the jetty, immediately opposite the northern end of the building. A second light post is located slightly north of the marina berths entrance gate. This latter light post supports a floodlight fitting. The floodlight fitting appeared to be directed downward and toward a floating pontoon and access ramp landing facility located north of the marina berths entrance gates, on the eastern side of the berthing area access jetty.”

23 An issue emerged as to the number of people who were present at the function. Estimates given by witnesses called by the plaintiff ranged from 50 to 150 people with several intermediate estimates. There was, however, no issue that those present at the function conducted themselves properly. Other than the horseplay involving Wilmot there was no suggestion of any untoward behaviour at the function. Accordingly, I am of the view that nothing turns on the determination of the issue of how many people were present at the function.

24 Again an issue arose as to the number of people close to the plaintiff at the time he left the jetty. Estimates given by witnesses called on behalf of the plaintiff range from him being part of the group to him being surrounded by about 20 people. However, there was no real issue in the matter that at the time the plaintiff left the wharf to enter the water he was surrounded by a number of people. In other words, there was nothing in the evidence to contradict the plaintiff’s assertion that he was in a group of people at the time he left the wharf and there is nothing in the evidence relating to the group around the plaintiff at that time which makes his allegation that he was either jostled or pushed other than a feasible explanation.

25 The plaintiff called a number of witnesses in support of his allegation that he entered the water because he either overbalanced on the upraised plank or was pushed. Vincent James deposed (T186 & T187):

“WHEELAHAN: Q. What became of Mr Fitzgibbon?
A. I saw Mr Fitzgibbon standing there looking in towards Nathan, and then I was talking back to my friends, turned around and I saw him overbalanced.
…
Q. How would you describe the method or plane in which he entered?
A. I would say he entered, he was falling over headfirst, and he entered the water in a forward motion.
…
Q. The picture that you saw was one of him attempting to regain his balance?
A. Yes, sir.
Q. Did he achieve that outcome?
A. No, sir.”

Sarah Roberts-Thomson deposed that she saw the plaintiff falling into the water and said that she observed him trying to get his hands out but basically went in headfirst. Her brother, Adam Roberts-Thomson, made these observations in evidence (T220 & T221):

“… Daniel I identified was falling, pushed, but certainly was making his way into the water and it certainly didn’t look as though it was something he was meaning to do on purpose…
…
… It wasn’t that he was purposefully diving … he was … caught off balance, or fell, or basically that it was not his intention to be heading towards the water.”

Luke Molloy said that he saw the plaintiff overbalancing with his arms raised beside him and falling. Matthew von Bibra deposed in evidence as follows (T272 & T273):

“… Daniel … caught my attention when he lost balance on the end of the boardwalk.
…
He was right on the edge of the boardwalk so his feet would have been next to that timber board.
…
… he had lost balance and he had put his arms out to try and regain balance.”

In a statement he had given earlier von Bibra said (Exhibit D p4):

“I was looking in (his) direction and I saw him fall forward towards the water as if he had for some reason lost his balance. At this time I could see that there were people either side and behind him.
As he fell forward I could see his arms outstretched trying to regain his balance. But at the point of no return (he) put his arms in front of him like a person diving and then he hit the water.”

The extract from von Bibra’s statement was tendered by senior counsel for the plaintiff in re-examination. The reason why that statement was allowed into evidence in re-examination was because of certain answers that von Bibra gave in cross-examination. Those answers are as follows (T279-280):

“BRIDGE: Q. I want to put to you a number of other matters in the same form. Listen carefully. If you don’t understand what I’m putting to you please say so. Towards the conclusion of that interview can I suggest to you that Mr Cavanagh asked you, ‘Do you know how Daniel fell into the water?’ You answered that question, ‘No’. Do you remember being asked that question and giving that answer?
A. Yes I do.
Q. Do you remember, towards the conclusion of that interview, Ms Nicola asked you a number of questions as well?
A. Yes I do.
Q. Do you remember – and just listen carefully to this because you’re in fact asked two questions – Ms Nicola asking you, ‘Did he dive or jump?’ And before you’re able to answer that question Mr Cavanagh then said, ‘Do you know whether he jumped in or dived in himself?’ Do you remember being asked those two questions together?
A. Yes I do.
Q. You said in answer to that, ‘Where I was standing on the boardwalk, all I saw of the incident was Daniel in midair’. Did you give that answer?
A. Yes I did.
Q. Did Mr Cavanagh then ask you, ‘How was he when he was in midair?’ You said, ‘He was headfirst motion’?
A. That’s correct
Q. At the time you gave those answers did you believe them to be true?
A. Yes I did.
Q. I don’t want to dwell upon the detail of the effect of this unfortunate accident on you but I’ve got to ask you a few things about it. I take it that you regarded Daniel Fitzgibbon as a friend?
A. Yes I do.”

It follows that there is some inconsistency between the evidence von Bibra gave in chief and the statement he had earlier given to the plaintiff’s solicitors and his answers to representatives of the defendants which are outlined in the questions and answers in cross-examination which I have set out. However, the other witnesses called on behalf of the plaintiff maintained the evidence in chief when subject to cross-examination.

26 An issue emerged as to how Wilmot had entered the water. The plaintiff, Messrs Felton, James and Adam Roberts-Thomson and Sarah Roberts-Thomson deposed that they did not see how Wilmot entered the water. On the other hand Luke Molloy gave these answers:

“Q. What happened?
A. Nathan was thrown into the water.
Q. From where?
A. From the decking.
Q. Did you see Nathan go into the water?
A. Yes, I did.
Q. How would you describe his entry?
A. I can’t recall.
Q. Did he fall over?
A. No.
Q. To what extent was he immersed in the water?
A. He was standing approximately waist deep.
Q. You saw him go in?
A. Yes, I did.
Q. Did you ever see him making as though he had been injured or was in distress?
A. No, I did not.
Q. Lying in the water?
A. No.
Q. Conveying an impression to an observer of being in some difficulty?
A. No, definitely not
Q. Did he ever appear to you to be in any difficulty while he was in the water?
A. No.
Q. Then what did he do, if anything?
A. No, he was just floundering around in the water.
Q. Was Daniel part of the group of people throwing in Nathan?
A. He was with the ten people involved in escorting him out.
Q. You said a moment ago, or a few minutes ago, in answer to a question from Mr Wheelahan that you recall Nathan standing waist deep in the water?
A. Yes.
Q. Is that all you recall him doing or was there something else?
A. That’s all I recall him doing, although he sort of had been swimming in the water prior to that.
Q. He had been swimming in the water prior to that?
A. When he was thrown in he, like, had a bit of a swim and then stood up.
Q. I’ll just take it in sequence as you gave your evidence. You said you saw him standing waist deep in the water, then you said he was floundering around. Just taking it from the sequence in which you gave that evidence, weren’t you referring to him floundering around after you saw him standing waist deep in the water?’
A. By floundering, I meant sort of walk around in the water. Moving. He was just standing up still, he was moving around in the water.
Q. Didn’t you say just a moment ago that he was standing waist deep in the water without any reference to floundering?
A. Without any reference to floundering?
Q. Floundering, that’s right.
A. Yes, he was swimming and then he stood up was sort of walking around in the water.
Q. Did you say you saw him thrown off the landing?
A. Yes.
Q. He wasn’t walked to the beach?
A. No.
Q. I think you told one of the other counsel that Daniel, to your observation, was part of the group involved in escorting Nathan?
A. Yes.
Q. You’ve got a clear recollection, do you of Nathan going swimming after he was put in the water?
A. Yes.
Q. And he got completely wet?
A. Yes.
Q. Head to toe?
A. Yes.
Q. So the sequence of events is that Nathan is thrown from the jetty, there are people watching, he goes swimming and he comes back into the shallow water?
A. The swim was very brief. He didn’t really move anywhere from where he was thrown in. Maybe 2 metres.
Q. But got completely immersed?
A. Yes.
Q. You would describe it as swimming?
A. Yes.
Q. And he stood up and floundered?
A. Yes.
Q. And it’s after that that Daniel was in the water?
A. Yes.”

Molloy’s evidence is clearly contradictory of the plaintiff’s evidence relating to his part in the manner in which Wilmot entered the water. Molloy has the plaintiff as an active participant in the dunking of Wilmot whereas, of course, the plaintiff maintains his part was no more than a spectator. Not only that, Molloy deposes that Wilmot’s actions in the water involved him carrying out a range of activities which were much more extensive than him merely standing up as all other witnesses called by the plaintiff deposed to. The contradictory nature of Molloy’s evidence is of some importance when the evidence called by the first defendant in the matter is taken into account.

27 The evidence called by the plaintiff as to the events surrounding him entering the water is of such nature that in the absence of any evidence called on behalf of the defendant I would have come to the conclusion that the plaintiff had established his case that he had either tripped on the raised board at the eastern edge of the jetty or was pushed or jostled by those surrounding him or indeed a combination of both factors and thus he would be entitled to have the matter determined on that factual finding. While it is true that certain of the evidence given by witnesses called on his behalf when viewed alongside his evidence has contradictory elements in it, those contradictory elements would not be sufficient in my view to displace my base view that the plaintiff had established his case on a balance of probabilities. However, the matter does not end there. Why it does not is because of oral evidence given by a Dr Trevithick, the emergency registrar at Royal North Shore Hospital on the evening in question. Furthermore, that oral evidence was supported not only by Dr Trevithick’s notes on the evening but also by notes made by other personnel at Royal North Shore Hospital and by ambulance officers of statements made to them by the plaintiff when he was being transported to Royal North Shore Hospital and after his arrival at that institution.

28 I turn then to the oral evidence given by Dr Trevithick. He deposed that on the evening of 29 March 1997 he was the emergency registrar on duty at Royal North Shore Hospital. He deposed that he had a clear recollection of the events of the evening. He remembered the evening well because during the course of it no less than five major trauma cases came through the emergency department at the hospital. The plaintiff was the third of those major trauma cases in sequence. Dr Trevithick deposed that he remembered the plaintiff being completely alert and capable of speaking to him when he first saw the plaintiff. While the plaintiff smelled of alcohol on that first meeting, Dr Trevithick was of the view that the alcohol did not appear have affected the plaintiff sufficiently to concern the doctor in his management.

29 Dr Trevithick went on to depose as to what the plaintiff told him about the circumstances of his accident. The doctor’s evidence is as follows (T422-3):-

“He said to me that he had been on a wharf at Middle Harbour Yacht Club and when one of his friends was pushed into the water during – I don’t think I can actually use his exact words after this length of time, but some skylarking perhaps, or high jinks – it’s a bit hard to describe what I am trying to say – some episodes of hilarity on the wharf and enjoyment following winning a sailing regatta – when one of his friends was pushed into the water, he dived into the water because he was – he thought his friend was at risk of drowning and he dived in to the water from a height of about 1.5 metres, hitting his face on the bottom of the – on the ground – when I say – on the bottom of the water because the water depth was quite shallow at the time and he was – then felt completely numb in his limbs and had to be rescued by onlookers.”

30 Dr Trevithick was subject to a long and searching cross-examination by senior counsel for the plaintiff. Dr Trevithick not only did not resile from his evidence in chief while under cross-examination but in my view his answers in cross-examination confirmed his evidence in chief.

31 In my view Dr Trevithick was a most impressive witness. I accept that he had a very clear recollection of the events of the evening of 29 March 1997 and I have no difficulty in accepting his evidence as being that of a truthful witness.

32 Indeed his evidence was entirely consistent with the note he made of his conversation with the plaintiff that evening. That note reads:

“Visiting Sydney with friends for sailing regatta. Had several alcoholic drinks with friends. One friend was thrown into the water at the Spit and pretended to drown so Daniel dived 1.5m into shallow water, striking his mouth on the bottom – he was paralysed immediately, rescued by onlookers – Ambulance attended and placed cervical collar”

33 As I have already said Dr Trevithick’s evidence is supported by notes made by other persons involved in the treatment of the plaintiff that evening. The nursing trauma admission note reads under the sub-heading of ‘Diving Accident’:

“Patient BIBA after diving (the word ‘jumping’ crossed out) into water off Spit Bridge 1.5 metres head first into H2O…. Patient alert & orientated.”

While that note refers to the incident occurring at the Spit Bridge (which, of course, is not far from the Middle Harbour Yacht Club) it is again consistent with Dr Trevithick’s evidence that the plaintiff told him that he had dived into the water and dived a distance of 1.5 metres.”

34 It is true that when the plaintiff was seen at 12.45am on the morning of 30 March 1997 by a Dr Sewhoy at North Shore the note he took of the history given to him by the plaintiff was equivocal. That note was “no recollection of having fallen? dived into the water”.

35 However, when he was seen in intensive care later on that morning a Dr Liston recorded the following history:-

“20-year-old male; previously well; acute spinal injury secondary to diving into shallow water under the influence of ETOH.”

36 The patient report prepared by the Ambulance Service of New South Wales reads under the heading of ‘Chief Complaint’:

“? Spinal injury. 20-year-old male dived approximately 1.5 metres landing face first in shallow water.”

37 On behalf of the plaintiff it was put that there were a number of matters which should persuade me not to regard Dr Trevithick’s note as being an accurate description of the way in which the plaintiff entered the water. Reference was made in the submission to the equivocal nature of Dr Sewhoy’s note which I have mentioned above. Furthermore, it was put that the fact that the admission note that the plaintiff had dived from the Spit Bridge cast doubt on the reliability of the record made. It was also put that the ambulance record was not admissible because it was not a business record. While it is true that there is no identification of the officer who made the note contained in the relevant form, I have no doubt it is a record kept by the Ambulance Service and is in fact a business record. Accordingly, I am of the view that that record is admissible. It was also put on behalf of the plaintiff that as Dr Trevithick’s account was entirely inconsistent with that given by witnesses called on behalf of the plaintiff as to the mode in which the plaintiff entered the water I should prefer their account to that of Dr Trevithick.

38 Furthermore, it was submitted that in the light of the plaintiff’s first overheard utterance following his accident as deposed to by Mr Ben Moon in the plaintiff’s case that that utterance displaces the effect of Dr Trevithick’s evidence. Mr Moon, who was present at the function at the Middle Harbour Yacht Club, deposed that he went to where the plaintiff had been brought in to near the shoreline. He deposed that he heard the plaintiff say, “Who pushed me in?”

39 I had allowed Mr Moon’s evidence to be given in chief in the plaintiff’s case because the senior counsel for the plaintiff had indicated that he was aware that the first defendant was going to call evidence of what was contained in the hospital notes. Perhaps it should, in fact, have been given in reply. Be that as it may the evidence was certainly given.

40 None of the arguments advanced on behalf of the plaintiff in any way reduces the view I have formed as to the credibility and reliability of Dr Trevithick’s evidence. I am of the view that Dr Trevithick was not only a truthful witness but also a reliable one. I accept fully that he had a clear recollection of what he was told that evening by the plaintiff. As I have already indicated his evidence does not stand alone, it is supported by notations made by others who had the care of the plaintiff on that evening. In my view it overcomes the probative value of the evidence given by the plaintiff and those called in his case. I should add that even if those other notations did not exist, my view as to the probative value of Dr Trevithick’s evidence would be unchanged.

41 Putting aside any considerations of onus of proof, looking at all the evidence dispassionately I conclude on a balance of probabilities that the plaintiff entered the water because he dived from the jetty. In terms of onus of proof this in turn means that I am not satisfied that the plaintiff has established his prime factual case on a balance of probabilities.

42 Because, as I have already noted, the plaintiff’s case to succeed depended upon him establishing that he entered the water because he either tripped on the raised portion of the decking, or was pushed or jostled causing him to fall, his case must fail. Accordingly, there will be a judgment for the defendants. The various cross-claims brought by the defendants amongst themselves must all result in judgments for the respective cross-defendants. I shall reserve the question of costs until after the delivery of these reasons.

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Last Modified: 02/21/2003