Laoulach v El Khoury - [2010] NSWSC 1009

No judgment structure available for this case.

CITATION: Laoulach v El Khoury [2010] NSWSC 1009

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

JUDGMENT DATE :
16 September 2010

JUDGMENT OF: Price J at 1

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

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

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

CATEGORY: Principal judgment

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

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

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

FILE NUMBER(S): SC 2007/265236

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

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

- 73 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

16 September 2010

2007/265236 Laoulach v El Khoury

JUDGMENT

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

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

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

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

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

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

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

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

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

The factual dispute

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

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

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

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

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

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

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

A review of the evidence

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

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

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

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

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

Q. What about Charlie?

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

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

A. Can you repeat the question, please?

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

A. No.

Q. So you're saying you don't recall seeing him drive the boat?

A. No, I don't recall Charlie driving the boat, no.”

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

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

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

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

A. No, I wasn't aware.

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

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

And (T 46 L 44-47):

And further (T 47 L3-21):

A. That's correct.

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

A. That's right.

Q. On this first occasion, what did you do to determine the depth of the water before you entered it, that's at the first point?
A. The first point when I jumped in with my feet first, I could see the sand - I could see - I could see the sand so I jumped in feet first and I let my feet touch the bottom.

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

A. That it would be shallow.

Q. Is that why you jumped in feet first?

A. It would be.”

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

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

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

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

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

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

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

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

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

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

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

Q. Yes, but did you look at the water?

A. It was dark.

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

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

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

A. I couldn't see sand.

Q. It was dark, you said before?

A. Yes.

Q. So you dived in?

A. That's correct.

Q. Was it important to you that the water was dark?

A. It was important that I couldn't see the sand and it was dark.

Q. That was because you--

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

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

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

Q. Mr Laoulach, that didn't happen at all, did it?

A. Mickey reassured me that it was safe to dive.

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

A. From the water he did.

Q. Well, you formed your own judgment though, didn't you?

A. No.

Q. Mr Laoulach, you must have formed your own judgment before diving into the water?
A. Well, I had a presumption it could be safe, but I was reassured it was safe to dive.

Q. Are you saying you didn't give any consideration at all as to whether it was safe to dive into the water before you dived off the front of the boat?
A. I did look at the water and there was no sand and it was dark water and I was reassured it was safe to dive.”

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

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

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

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

A. Yep.

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

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

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

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

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

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

Q. It was up the front of the boat again?

A. It was up the back or the front.

Q. The anchor was still further out to sea?

A. I don't know where the anchor was.

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

A. I can't recall.”

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

“Q. You couldn't see the bottom?

A. I couldn't see the bottom.

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

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

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

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

Q. What was it, jump or dive?

A. Dive. Well, dive.

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

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

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

A. I do remember that.”

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

“Q So are you saying you noticed that the visibility of the water between your first and second dive at the second point had deteriorated?
A. The water was darker in the first dive than the second dive.

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

Q. And you still dove into the water, didn't you?
A. I still dived into the water to what appeared to be the same when I dived in the first time.

Q. Are you saying, are you, that you'd noticed the water had got a bit lighter between your first and second dive at the second point, is that right?
A. It appeared to be just a slightly little different but it was still dark blue.

Q. Isn't it the fact that you had difficulty determining the depth of the water just before your second dive?
A. I presumed it was the same depth as the first dive.

Q. But you did have difficulty assessing the depth of the water before your second dive, didn't you?
A. I didn't assess the water. I presumed it was the same spot I was diving into, so I didn't presume I was assessing.

Q. You agree, don't you, that as the wind picked up it made it more difficult to see through the water?
A. It might have been slightly, but it wasn't.

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

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

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

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

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

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

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

“Q. Pardon?

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

Q. Did that have some effect on the smoothness of the water?

A. I don't remember.

Q. Did it make it more difficult to see through the water?

A. Yeah, you can say that.

…

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

A. The wind?

Q. Yes?

A. It would probably would have.

Q. Did you notice it yourself?

A. I can see from the boat it was a bit dark.

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

A. Not really.

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

A. That's correct.

Q. And the front of the boat was facing out to sea?

A. That's correct.

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

A. That I can remember, yeah.”

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

A. That's correct.

Q. Into the shore?

A. Yes.

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

A. No.”

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

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

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

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

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

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

A. That's right.

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

A. I looked at the water.

Q. Was the water smooth or was it a bit choppy?

A. No, it looked okay.

Q. It looked smooth, yes?

A. Yes, it looked okay, yes.

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

A. No.

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

A. I couldn't see how deep it was.”

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

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

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

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

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

Q. That you were up the front of the boat, you were on the bow?
A. I possibly was.

Q. And that what you were doing was looking at the water to see whether the vessel had reached a point that it was deep enough for diving?
A. I could have. I do remember seeing the water before we dived, so whether it was while we were moving I could have been on it or when it stopped, I'm not sure.

Q. And I want to suggest to you that you indicated to the person driving the vessel that things along the line of "That's far enough, we can drop the anchor here", words to that sort of effect?
A. A hundred percent sure I'm not but I could have done that as well. As I said if I was up there I would have been in the position to see whether it was deep enough.

Q. And I want to suggest to you the person who drove the vessel from the first point to the second point was Mickey Beaini?
A. As indicated earlier he would be my best guess, yeah.

Q. Just to perhaps put the words more correctly, you said something at the second point where the anchoring was taking place something like "That's deep enough" or words to that effect?
A. Exact words I don't remember. I knew it was deep enough at the time.

Q. And you yelled that out with a view to telling whoever was driving that "You can stop now and lower the anchor"?
A. I know what you're trying to say but I can't remember whether I said it directly or said it out loud. I'm not sure.”

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

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

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

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

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

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

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

Matters of credit

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

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

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

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

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

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

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

Some findings of fact

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

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

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

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

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

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

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

The Burge report

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

r 31.29(3) Uniform Civil Procedure Rules 2006.

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further findings of fact

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

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

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

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

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

Q. Pardon?

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

Q. Did that have some effect on the smoothness of the water?

A. I don't remember.

Q. Did it make it more difficult to see through the water?

A. Yeah, you can say that.”

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

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

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

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

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

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

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

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

“The position may be summarised as follows:

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

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

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

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

if it's really bad winds obviously would take note and see the boat swaying dramatically you would want to fix it up.

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

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

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

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

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

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

“Q. So you hopped in the water and walked with your phone?

A. I don't know how I got there, whether swimming or walking.”

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

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

A. Possibly.

Q. Is it probably?

A. Probably.”

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

“Q. All you did was help him out?

A. Yes.

Q. Did you discover in the process of helping him out that the water
was quite shallow?

A. I can't remember.”

94 And (T 289 L 42-46):

“Q. You were helping Robert out?

A. I swam with Robert for a period of time, then I walked the rest.

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

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

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

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

97 Sam Laoulach recounts at ex G par 39 that:

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

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

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

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

A. That's correct.

Q. Is that right?

A. That's correct.

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

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

Q. Next to the boat?

A. Getting on the boat.

Q. So whilst you were in the water, you couldn't see the seabed next to the boat?
A. I was swimming and I - my - I didn't - it was dark waters. It was dark waters. I didn't check to see how deep where the bed was but I couldn't see the bed.”

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

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

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

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

March v Stramare

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

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

Dangerous recreational activity

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

164 The relevant provisions of Division 5 are:

“ 5J Application of Division

(1) This Division applies only in respect of liability in negligence for harm to a person ( the plaintiff ) resulting from a recreational activity engaged in by the plaintiff.
(2) This Division does not limit the operation of Division 4 in respect of a recreational activity.

5K Definitions

In this Division:
dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.
obvious risk has the same meaning as it has in Division 4.
recreational activity includes:
(a) any sport (whether or not the sport is an organised activity), and
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

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

(1) A person ( the defendant ) is not liable in negligence for harm suffered by another person ( the plaintiff ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.”

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

5F Meaning of “obvious risk”

obvious risk

5G Injured persons presumed to be aware of obvious risks

5H No proactive duty to warn of obvious risk

the defendant

the plaintiff

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

Obviousness of risk

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

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

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

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

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

Jaber

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

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

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

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

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

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

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

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

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

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

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

A. No.

Q. No?

A. No.

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

A. There would be, that's right.

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

A. That's correct.

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

A. That's right.”

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

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

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

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

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

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

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

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

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

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

Wyong Shire Council v Shirt

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

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

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

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

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

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

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

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

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

Limitation of liability

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

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

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

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

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

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

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

191 The Macquarie Dictionary defines "seagoing" to mean:

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

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

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

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

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

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

could

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

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

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

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

“General rule of interpretation

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

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

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

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

Orders

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

**********

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Citations

Laoulach v El Khoury [2010] NSWSC 1009

Most Recent Citation

Sutherland v GHR Accounting Group Pty Ltd [2019] NSWSC 295

Cases Citing This Decision

2

Laoulach v Ibrahim [2011] NSWCA 402

Sutherland v GHR Accounting Group Pty Ltd [2019] NSWSC 295

Cases Cited

23

Statutory Material Cited

7

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

Luxton v Vines [1952] HCA 19

CITATION:	Laoulach v El Khoury [2010] NSWSC 1009
HEARING DATE(S):	31 May 2010 1 June 2010 2 June 2010 3 June 2010 7 June 2010 8 June 2010
JUDGMENT DATE :	16 September 2010
JUDGMENT OF:	Price J at 1
DECISION:	1. Verdict and Judgment for the second, third and fourth defendants as against the plaintiff. 2. The plaintiff is to pay the costs of the second, third and fourth defendants on an ordinary basis up until 3 May 2010, and thereafter on an indemnity basis.
CATCHWORDS:	NEGLIGENCE - Civil Liability Act 2002 - dive from a vessel causing serious injury - whether duty of care - whether breach of duty - whether risk was an 'obvious risk' - whether dive was a 'dangerous recreational activity' - whether Limitation of Liability for Maritime Claims Act applies - whether vessel a 'seagoing ship'
LEGISLATION CITED:	Civil Liability Act 2002 s 5B, s 5C, s 5F, s 5G(1), s 5H(1), s 5J, s 5K, s 5L, s 5R, s 51(1), s 51(2) Convention on Limitation of Liability for Maritime Claims 1976 Limitation of Liability for Maritime Claims Act 1989 Marine Safety Act 1989 s 4 Uniform Civil Procedure Rules 2006 r 31.29(3) Vienna Convention on the Law of Treaties 1969
CATEGORY:	Principal judgment
CASES CITED:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Berrigan Shire Council v Ballerini [2005] VSCA 159 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 China Ocean Shipping Co v South Australia (1979) 145 CLR 172 Fabre v Arenales (1992) 27 NSWLR 437 Fallas v Mourlas [2006] NSWCA 32 Falvo v Australian Oztag Sports Association [2006] NSWCA 17 Jaber v Rockdale City Council [2008] NSWCA 98 Jones v Dunkel (1959) 101 CLR 298 Laoulach v El Khoury [2010] NSWSC 595 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Perry v Harris [2008] EWCA Civ 907 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330 Salt Union Ltd v Wood [1893] QB 370 Shaw v Thomas [2010] NSWCA 169 Smith v Perese [2006] NSWSC 288 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Swain v Waverly Municipal Council (2005) 220 CLR 517 Union Steamship Co of New Zealand Limited v The Commonwealth (1925) 36 CLR 130 Vairy v Wyong Shire Council (2005) 223 CLR 422
TEXTS CITED:	Davies, M and Dickey, A, Shipping Law, 3rd ed, 2004.
PARTIES:	Robert Laoulach - Plaintiff Robert El Khoury - First Defendant Danny Ibrahim - Second Defendant Charbel Ibrahim - Third Defendant Mickey Beaini - Fourth Defendant
FILE NUMBER(S):	SC 2007/265236
COUNSEL:	Mr B Dooley SC + Mr G Hickey (Plaintiff) Mr R Cavanagh + Mr C Purdy (Defendants)
SOLICITORS:	Slater & Gordon (Plaintiff) Sparke Helmore (Second, Third and Fourth Defendant)