Laoulach v Ibrahim - [2011] NSWCA 402

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Laoulach v Ibrahim [2011] NSWCA 402
Hearing dates: 29 November 2011
Decision date: 16 December 2011
Before: Giles JA at 1; Macfarlan JA at 2; Tobias AJA at 3
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - negligence - personal injury - diving accident - existence of duty of care - breach of duty of care - dangerous recreational activity - obvious risk - limitation of liability for maritime claims
Legislation Cited: Civil Liability Act 2002 ss 5B, 5F, 5H, 5K, 5L
Limitation of Liability for Maritime Claims Act 1989 (Cth)
Marine Safety Act s 4
Cases Cited: Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649
Council of the City of Greater Taree City Council v Wells [2010] NSWCA 147; (2010) 174 LGERA 208
Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Tort Reports 81-831
Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81-952
Laoulach v El Khoury [2010] NSWSC 1009
Lormine Pty Ltd v Xuereb [2006] NSWCA 200
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Parissis v Bourke [2004] NSWCA 373
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Reports 82-065
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Taouk v Waste Recycling & Processing Service of NSW [2003] NSWCA 273
Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wilson v Nilepac Pty Ltd [2011] NSWCA 63
Wyong Shire Council v Vairy [2004] NSWCA 247
Category: Principal judgment
Parties: Appellant: Robert LAOULACH
First Respondent: Danny IBRAHIM
Second Respondent: Mickey BEAINI
Representation: Appellant: B D Dooley SC/ G J Hickey
Respondents: R Cavanagh SC/ C Purdy
Appellant: Slater & Gordon
Respondents: Sparke Helmore

File Number(s): 2007/265236
Decision under appeal

Citation:

Laoulach v El Khoury [2010] NSWSC 1009

Date of Decision:

2010-09-16 00:00:00

Before:

Price J

File Number(s):

2007/265236

Judgment

GILES JA: I agree with Tobias AJA.

MACFARLAN JA : I agree with Tobias AJA

TOBIAS AJA : On 30 November 2004 the appellant, Robert Laoulach, was a passenger on board a Mustang 2800 sports cruiser (the vessel). Whilst the vessel was moored in Botany Bay off Brighton-Le-Sands, the appellant dived from its bow striking his head on the sandy bottom of the Bay. He suffered a C5 compression fracture with retropufsion fragment and 50 per cent canal narrowing and a C5 lateral mass fracture which left him with incomplete C4 tetraplegia.

By his amended statement of claim filed on 31 May 2010, the appellant alleged that his injuries resulted from the negligence of the four defendants including the two respondents to the present appeal. The first defendant was Robert El Khoury who was the owner of the vessel. The proceedings were discontinued against him during the course of the hearing. The second defendant was Danny Ibrahim, the first respondent. The third defendant was Charbel Ibrahim in favour of whom the primary judge entered a verdict and judgment against which there is no appeal. The fourth defendant was Mickey Beaini, the second respondent. The appellant claimed that at all relevant times the vessel and those on board were under the control of the defendants and that he was reliant upon their expertise for his safety.

Apart from the four defendants and the appellant, there were two other persons on board the vessel that day. The first was Badui Laoulach (known as "Buddy") who is the appellant's brother. The second was Sam Laoulach, also a brother of the appellant. Without meaning any disrespect, it will be convenient to refer to those on board as Buddy, Sam, Danny, Charlie and Mickey. All those on board were well familiar with each other. As I have indicated Buddy and Sam were the appellant's brothers whereas Danny and Charlie were his cousins. Mickey was a friend of Danny and Charlie.

The owner of the vessel, Mr El Khoury, was not on it at the time but had given permission to Buddy to take it for a test drive for the day as Buddy was interested in purchasing it.

The proceedings were heard by Price J who on 16 September 2010 found in favour of Danny, Charlie and Mickey and entered a judgment and verdict for them as against the appellant: Laoulach v El Khoury [2010] NSWSC 1009. His Honour recorded that had he found in favour of the appellant, damages had been agreed in the amount of $8 million. It is from the primary judge's decision with respect to Danny and Mickey on the issue of liability that the appellant now appeals to this Court.

The issues before the primary judge

The appellant alleged that the respondents, Danny and Mickey, were in breach of their duty of care to him by, essentially, failing to take reasonable care to ensure that the vessel was anchored and remained in a location where the water was deep enough to enable the appellant to dive from it safely. Alternatively, it was alleged that the respondents were in breach of their duty of care by failing to warn the appellant of the risk of injury if he dived off the vessel and the water depth was inadequate to enable him to do so safely. By their defence the respondents pleaded that the risk of injury from diving from the vessel was obvious in terms of s 5F(1) of the Civil Liability Act 2002 (the CL Act ) and that by reason of s 5H(1) they did not owe him a duty of care to warn him of that risk.

The respondents further relevantly pleaded that in diving from the vessel the appellant was undertaking a dangerous recreational activity as defined by s 5K of the CL Act and that they were not liable for the harm suffered by him caused by the materialisation of an obvious risk of that activity: see s 5L(1). Finally, the respondents relied upon the provisions of the Limitation of Liability for Maritime Claims Act 1989 (Cth) to reduce the damages to which the appellant would otherwise have been entitled if liability was found in his favour. If that Act applied, which was denied, the damages agreed at $8 million, would be reduced to $3,565,980.

The relevant evidence

The evidence on liability was given by the appellant, Buddy, Sam, Danny and Mickey. Charlie did not give evidence. Their evidence in chief was provided by way of statements that were tendered. Each was cross-examined. The only other evidence on the issue of liability was a tendered report dated 22 April 2009 of Mr Peter Burge, a consulting marine engineer and marine surveyor. He was not required for cross-examination.

The specifications of the vessel were as follows. It had a length of 8.4 metres, a beam of 2.59 metres and a draught of 1.05 metres. It was made of fibreglass and had a dry weight of 2,753 kilograms. It was powered by an inboard diesel engine. It had a platform attached to its stern just above water level. The highest point of its bow appeared to be approximately one metre above water level.

As I have indicated, the vessel was owned by Robert El Khoury. In November 2004 Buddy was considering purchasing the vessel from Mr El Khoury who suggested that he take it out for a test drive. As Buddy did not have a boat licence, he was told by Mr El Khoury to find someone who did.

On 30 November 2004 Buddy contacted Danny, Charlie and Mickey as he understood they were licensed boat drivers. He requested them to come out for the day to test drive the vessel for him as he was considering acquiring it and the owner required him to ensure that a licensed driver operated it. They agreed.

Buddy made arrangements with Danny, Mickey, Charlie and Sam to pick up the boat at Cronulla and then to collect Buddy at Milperra. During the course of the morning Buddy invited the appellant to accompany them. After the appellant and Buddy were picked up from Moorebank jetty at approximately 12.30pm the vessel returned to Botany Bay along the Georges River and was ultimately anchored at Brighton-Le-Sands opposite the Novotel Hotel, approximately 30 metres from the shoreline. According to Buddy, other boats were moored closer to the shoreline, the vessel being the furthest boat from the shoreline. After the boat was anchored, all those on board other than Buddy either dived or jumped into the water from the vessel's bow.

The appellant's evidence

It is convenient to record in full the relevant part of the appellant's evidence in chief as contained in his statement which was tendered as Exhibit "C", as generally speaking the primary judge accepted its accuracy. It was in the following terms:

23. At approximately 1:30 pm we arrived at Brighton Le Sands and moored the boat. I was sitting at one end of the boat talking with my brother and it was at this point that Mickey dived into the water.

24. The boat was initially moored approximately 40 metres from the shore line. The weather was fine and warm with light gusty breezes. I could see a yellowness in the water, that is, the sand underneath the boat.

25. Charlie, Mickey and Danny began diving from the bow of the boat.

26. Because I could see the bottom of the ocean floor, initially I entered the water from the bow of the boat, feet first, to check its depth. Having gone in feet first I then let myself drift down to the bottom and the water was deep so that when I had my feet on the sand and my hands fully extended I was still below the water line.

27. The bow of the boat was pointing away from the beach and the water appeared to be getting deeper as it got further from the beach.

28. I thereafter dived from the bow of the boat on one occasion.

29. After a period of time there was a discussion about moving the boat. Mickey and Charlie told my brother Buddy and I that Mickey had hit his shoulder diving and it was now too shallow, so they decided to move the position of the boat to allow everybody to keep diving and swimming safely.

30. There was some discussion amongst all on board about the issue of moving, as it took a little effort to get the anchor raised and then motor to a new position.

31. Mickey then commenced steering the boat and Danny was standing on the bow directing the position of the boat and preparing to lower the anchor.

32. The vessel was then moved some 15 to 20 metres further out to sea. At this stage the water was a dark blue colour. We stopped where Danny had indicated that we should and Mickey threw the anchor in and the boat was then secured.

33. 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.

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

35. 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.

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

37. I noticed that as I swam into shore that the water level gradually reduced as we got closer to the sea [sic, shore]. The sand was even in that the sea-bed appeared to be flat and gently slopping.

38. 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.

39. 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.

40. 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.

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

In cross-examination the appellant confirmed that before he made his first dive at the second anchor position, he looked at the water and it was dark and he could not see the sand. He agreed that each of these factors was important to him. Before his second dive (which resulted in his injuries) he again looked at the water. It was dark and he could not see the bottom. He presumed it was the same depth as when he first dived at that location.

Buddy's evidence

Buddy's statement of his evidence in chief is generally consistent with that of the appellant. However, he considered that the first anchor position was approximately 30 metres from the shore rather than the 40 metres referred to by the appellant. He also stated that the vessel was moored at the first anchor position for about 15-20 minutes and then was moved out a further 20-30 metres from the shoreline to the second anchor position. Accordingly, on Buddy's evidence, the vessel was between 50 and 60 metres from the shoreline at the second anchor position. When the vessel was being moored Mickey was driving and Danny was at the bow. At some point he called out to Mickey " that's deep enough ". The vessel was then idled and Danny released the anchor. The appellant's oral evidence was that he heard Danny say, " I think this looks about right " after which the anchor was dropped.

I interpolate that Buddy's evidence as to distance of the vessel from shore is of some significance as his evidence was that after the appellant was discovered face down in the water he was taken to the shoreline by Sam and Mickey who, according to Buddy, had to swim 50 - 60 metres into shore in order to get the appellant to land.

Sam's evidence

In his statement of evidence in chief, Sam stated that the first mooring point of the vessel was approximately 40 to 50 metres offshore. He and Mickey dived from the bow of the vessel. The water was light blue in colour and he could see the white sand. He thought its depth was around three metres. A short time later (approximately 10 minutes) Mickey dived from the vessel and informed the others that the water was too shallow, as he had just hit his shoulder on the bottom. At that time there was a light breeze. The vessel was then driven by Mickey further to the east where the water colour was a lot darker. During the move Danny was standing at the bow. When they got into deeper water Danny indicated to Mickey that that was far enough. Danny then deployed the anchor and the vessel's engine was turned off. He and the others proceeded to dive off the bow of the vessel without mishap. Over a period of time the wind picked up and was gusty. He thought that they were at the second anchor position for approximately 20 minutes prior to the appellant's accident.

Sam further stated that he was in the water at the time when Mickey went to the appellant's aid. He then moved over towards them and realised he could put his feet on the bottom " so that I could do small jumps and keep my head above water ". He was surprised by the depth of the water. Buddy also gave evidence that when he entered the water after the appellant's accident from the stern of the vessel he was able to touch the bottom, the water coming up to just below his shoulder level.

Danny's evidence

Danny's statement of evidence in chief was generally consistent with those of his fellow travellers. However he stated that when he dived into the water from the first anchor position he could not touch the bottom with his hands and the water was too deep to stand in. However he heard Mickey say that he had touched the bottom with his hands and that the vessel should be moved. At the second anchor position he again dived into the water which seemed darker and, as far as he could tell at the time, deeper. Relevantly, it was colder when he dived in. He thought that the vessel had been at that position for approximately 20 minutes prior to the appellant's accident. At no time did he hear anyone complain about the water being too shallow or that anyone had touched the bottom.

Mickey's evidence

In his statement of evidence in chief Mickey stated that they remained at the first anchor position for approximately 20 - 30 minutes. During that time the vessel appeared to be at least 20 metres from the shore. Before entering the water he looked and considered that it was deep enough to dive into. He could not stand in the water and did not touch the bottom until on one occasion his hands, which were outstretched in front of him, did touch the bottom. He then told the others that the vessel should be moved further out into deeper water. He then moved it approximately 15 metres further out. Prior to continuing his diving activities Mickey observed that at the second anchor position the water had changed colour in that it was darker which he believed indicated that it was deeper. He formed the view that it was safe to dive although he kept that information to himself. When he did dive off the vessel again he did not touch the bottom. Prior to the appellant's accident he saw a number of people dive off the bow of the vessel and he himself dived off more than once. He did not consider that the water was too shallow at any time prior to the appellant's accident.

At [66] of his reasons the primary judge made the following findings:

that the vessel was first anchored off Brighton-Le-Sands at about 1.15 pm and the appellant's accident occurred close to 2pm;

estimates of the time spent at the first anchor position varied between 10 - 30 minutes and at the second anchor position between 20 - 30 minutes;

the estimates of the distance that the vessel moved from the first anchor position to the second anchor position ranged from 10 metres to 20 - 30 metres.

The appellant's evidence that he was encouraged to dive

In cross-examination the appellant stated that at the second anchor position he did not intend to dive until those in the water told him to do so. His evidence continued in the following exchange:

"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."

The other witnesses denied that any of them had encouraged the appellant to dive as he had alleged. At [51] of his reasons the primary judge did not accept that the appellant had been reassured or encouraged by Mickey or anybody else to dive in before he made the second dive which resulted in his injuries. His Honour continued:

"Before he made the second dive [the appellant], noted that the water was slightly lighter in colour than before the first dive but was still dark blue. The [appellant] presumed that it was the same spot from where he had safely made the first dive. The [appellant] exercised his own judgment in deciding that it was safe to dive from the vessel a second time."

There was no challenge by the appellant to these findings.

The wind issue

I earlier referred to the appellant's statement of evidence in chief that as time progressed the wind picked up so that the visibility of the water was not as good although it still seemed to be dark blue. In cross-examination he was asked whether he noticed that the visibility of the water between his first and second dive at the second anchor position, had deteriorated. He responded that the water was darker when he first dived than on the second occasion (being the dive which resulted in his injuries). When asked whether he had noticed that the water had become a bit lighter between his first and second dive at the second anchor position, he said that it appeared to be just slightly different but it was still dark blue. The following exchange then occurred:

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

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

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

A. Slightly.

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

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

Buddy did not refer in his statement of evidence in chief to the wind increasing. However, in cross-examination he said that it was " windy towards the afternoon a little bit ". When asked whether he had himself noticed that due to the wind it was more difficult to see through the water, he agreed that that was probable but that it was a bit dark. When asked whether he noticed anything about the surface of the water, he said " Not really ". Importantly, when asked whether he had noticed the vessel moving at all when he was sitting on board, he replied in the negative.

As already noted, in his statement of evidence in chief Sam stated that at the first anchor position there was a light breeze. At the second anchor position he said that over a period of time the wind picked up and was gusty. In cross-examination he was asked whether when he dived at the second anchor position the water was smooth or a bit choppy. He responded: " No, it looked OK ". When asked did it look smooth, he answered in the affirmative.

Danny did not refer to the question of wind in his statement of evidence in chief. In cross-examination it was suggested to him that there may have been gusty conditions to which he responded, " It might have been. I can't remember ". When it was put to him that at the first anchor position the winds were gusty he responded, " I don't remember gusty winds ". When requested to differentiate between whether it was not gusty or he did not remember if it was, he responded, " I just remember it was calm waters at the beginning ". Further on in his cross-examination it was suggested to him that as the afternoon progressed the winds picked up. He responded to the effect that he really did not take any notice of the weather when he was swimming and diving although he would have, had the winds been bad and the boat had been swaying which, inferentially, was not the case.

Mickey also did not refer in his statement of evidence in chief to the issue of wind. When asked in cross-examination whether he remembered whether the breeze got stronger and the water became choppier, he said he could not remember.

The relevance of the wind issue is that it was the appellant's case at trial and on appeal that the wind conditions were such that both at the first and second anchor positions the vessel must have drifted towards the shore and, therefore, into shallower water. It was asserted that each of Danny and Mickey should have been aware that this had occurred and, therefore, ought to have warned those diving, including the appellant, that there was possibly insufficient water into which to dive safely.

In this context the appellant relied upon the evidence of Mr Burge who ascertained the wind conditions at the time from the meteorological records at Sydney Airport. The primary judge summarised that information in the following paragraphs of his reasons ([71]-[74]):

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

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

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

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

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

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

[74] With wind strengths ranging between 1 pm and 2 pm 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."

I would add to the foregoing two points. The first is that the wind speeds referred to are the mean wind speed over a ten minute period prior to the nominated time, in the present case 1.30pm and 2pm. Secondly, the wind gust refer to is constituted by the maximum gust reported in that ten minute period and is defined by the Bureau of Meteorology as any sudden increase of wind of short duration, usually a few seconds.

After referring to the lay evidence on the issue of wind, his Honour observed at [80] of his reasons that:

"[i]t 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."

After setting out the opposing contentions of the parties, the primary judge (at [85]) concluded that notwithstanding the traumatic events on the afternoon of 30 November 2004 and the effluxion of time from then until trial (June 2010), he did not accept that those on the vessel with the exception of Buddy

"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..."

Accordingly, although it was a reasonable initial assumption that the weather conditions at the Airport would be comparable with those in the adjacent waters, his Honour remarked (at [87]) that as Mr Burge did not have the benefit of hearing the evidence given during the trial he was

"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."

The appellant challenges the finding of fact in the last sentence of the above passage although I note that there was no evidence that at any material time the vessel swayed from side to side significantly or at all.

The primary judge continued (at [88]):

"It is more likely than not that the weather conditions described by the witnesses between 1 pm-2 pm, 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 1.15 pm-2 pm the prevailing winds fell within the Beaufort Wind Scale range of "light winds" to "moderate winds"."

The appellant also challenges the finding in the last sentence of the above passage.

The consequence of his Honour's finding as to the wind conditions was stated by him at [89] of his reasons in the following terms:

"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."

Did the vessel move from the second anchor position?

As the primary judge recorded at [81] of his reasons, the appellant submitted that at the point where he dived and was injured, the depth of water into which he dived must have been less than that which prevailed at the time the vessel was secured at the second anchor position. He submitted that there were two likely scenarios which supported a change from adequate water for diving to shallow water within a relatively short period of time. They were that:

the vessel merely drifted back on the anchor cable into an area where the water was not sufficiently deep; or

it dragged its anchor either through an inadequate length of anchor cable being extended or the anchor was unable to hold the vessel due to the strength of the breeze and the sandy surface of the floor of the Bay.

His Honour noted (at [81]) that the second scenario was, according to the appellant, the most likely given the amount of wind.

In this context the primary judge accepted (at [63]) the following evidence of Mr Burge. The various charts of the area revealed a very shallow gradient between zero at the beach and around two metres depth about 50 metres out from the beach in the area immediately north of the Novotel Hotel. However, sandy sea bottoms are subject to tidal, flood, wind and other influences which will cause the sands to shift and the bottom depths to vary. Importantly, there were significant dredging works intended to "re-nourish" lost sands and stabilise Lady Robinson's beach at Brighton-Le-Sands occurring during the period when the appellant sustained his injuries.

Furthermore, Mr Burge stated that it was equally important to be aware that dredging and earthworks needed to be carried out in order to build the extended runway of Sydney Airport and the Port Botany shipping terminals. These works had significant effects upon the tidal and flood currents in Botany Bay, many of which had not as at 2004 been accurately identified. These various factors indicated that at the relevant time the regularity of the topography of the sea bottom adjacent to Lady Robinson's Beach could not be assumed. He said:

"It is far more likely that there will be places where a regular gradient will occur and others where shallow banks , deeper 'holes' and 'tidal channels' will be found." [emphasis added]

At [84] of his reasons the primary judge noted that there was no direct evidence that the vessel's position had moved from the time it was first anchored at the second anchor position (about 1.35-1.40pm) to the time of the accident close to 2pm. Nor was there direct evidence that it had dragged its anchor either through an inadequate length of anchor cable being extended or by the strength of the wind. However, as his Honour noted (at [90]), it was evident that the vessel did not remain in a static position at the first or second anchor positions as a number of dives safely took place in each location before difficulty was encountered at each. There had been at least seven dives at the second anchor position before the dive that resulted in the appellant's injury.

The primary judge then referred (at [95]) to the evidence of Buddy (referred to at [ 18 ] above) that those who rescued the appellant had to swim 50 - 60 metres into shore to get him onto land and to his earlier estimate that the vessel was approximately 30 metres from the shore when anchored at the first anchor position and may have been moved 20 - 30 metres further out from the shoreline before it was anchored for the second time. His Honour then observed (at [96]) that Buddy's estimates of distance indicated that the vessel had not moved much after it was anchored at the second anchor position. This was consistent with his testimony that while he was sitting on the vessel he had not noticed it moving at all.

The primary judge then referred to the evidence of Sam and Mickey and their observations as to the colour of the water being dark blue at the second anchor position. He then stated his conclusions on this aspect of the evidence in the following terms:

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

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

...

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

The appellant challenged those findings of his Honour in the above passages which I have emphasised.

The length of anchor cable issue

The first paragraph of [108] of his Honour's reasons relates to a submission made to him and repeated, to a degree, on the appeal that Danny, who was found by his Honour to have deployed the anchor on the vessel when it reached the second anchoring position, failed to deploy a sufficient length of cable to avoid the vessel dragging its anchor due to the wind conditions. In this respect, the evidence of Mr Burge was that in order for the anchor to be effective and to hold a large, 8.4 metre long vessel with a mass exceeding 2.7 tonnes in a secure position, a long length of anchor cable would need to have been let out. A "rule of thumb" to which Mr Burge referred was that in two metre deep water, around six to ten metres of cable should be let out, whereas in three metre depth of water the length of cable should be between nine and fifteen metres. This was necessary in order to stop the boat " dragging " its anchor.

Danny agreed that in the second anchor position he deployed the anchor " to keep [the vessel] steady in the new position ". He was further cross-examined on this issue in the following exchange:

Q. When it comes to anchoring there's a well known procedure in terms of how you do that safely, isn't there?

A. There should be a procedure. I think there is a procedure. You probably use a lot more common sense as well the way you anchor is.

Q. The one thing you do know is this, if you were in 2 metres of water say and you put the anchor down so you released just 2 metres, say 2 and a half metres, of anchor line that then when the anchor came to rest on let's say sand?

A. Yes.

Q. And the anchor line is indeed straight and taught?

A. Yes.

Q. That if you do that then you know that you've got any vessel of even a modest size even smaller than this one that with even a slight breeze it's going to drag the anchor, isn't it?

A. That's right, yes.

Q. So that in nice calm conditions the rule is a minimum of whatever depth you're mooring in you put out three times of anchor rope or chain, that's the bear minimum?

A. I know there's an extra, I don't know if it's 3 metres or 5 metres. I know you allow a little bit more as you said for the swell

Q. You allow 3 to 1, that is whatever it is you multiply it by 3, if it's nice gentle calm conditions?

A. Yes.

Q. You agree with that, is that your recollection?

A. It's something along these lines. I can't say I'm a hundred percent agreeing because I'm not a hundred percent sure about that.

Q. I want to suggest to you that there's a rule of thumb of about 3 to 1 even 5 to 1. Does that sound about right?

A. It sounds familiar.

Q. The point is if you put out too little there's a tendency for the vessel to drift?

A. That's right.

Q. It's always backwards and that is that the wind pushes it back if there's nothing solid?

A. It could be other vessels. It could be anything that could make it drag.

Q. And as the breeze picks up you put more and more anchor line up to help secure your position?

A. Yeah. If the conditions change especially drastically like that you'd have to obviously re assess what you've let out.

Q. But in order to maintain your position you know that the best you can do is that the stronger the conditions and for instance more chop and the like you put out far more anchor chain to allow you to maintain your position, that gives you the best chance of not dragging the anchor, is that right?

A. Yeah, sounds right.

It is apparent from the foregoing exchange that Danny appears to have been aware of the "rule of thumb" referred to by Mr Burge in his evidence to which I have referred above. However, it is significant that the cross-examiner did not then ask Danny what he did when he deployed the anchor at the second anchor position. In particular, he was not asked to estimate the length of anchor cable which he had let out. In these circumstances, it not having been put to Danny that he deployed an inadequate or insufficient length of cable, his Honour could not in fairness have found that he had failed, in the conditions then prevailing, to extend the anchor cable in accordance with the "rule of thumb".

Accordingly, it is difficult for the appellant, as he acknowledged in oral argument, to challenge his Honour's finding that he was not satisfied on the balance of probabilities that the vessel dragged its anchor due to an inadequate length of anchor cable having being deployed. Nevertheless, as I have noted, the appellant does challenge his Honour's finding at [108] that the appellant dived into a shallow bank, contending that the vessel had drifted back towards the shore into shallow water due to the effects of wind causing the vessel to drag its anchor. I shall deal with this issue below.

The depth sounder issue

One of the particulars of negligence alleged by the appellant was that Danny and/or Mickey failed to use the depth sounder fitted to the vessel to ascertain the depth of the water. The issue which thus arose was whether there was evidence that the vessel was in fact fitted with a depth sounder. None of those on board the vessel who gave evidence said that the vessel was so fitted. Only Danny was asked whether the boat had a depth sounder but he said it might have but he did not look for it and could not remember. Relevantly, as his Honour noted at [113] of his reasons, Mickey (who drove the vessel between the two anchor positions) was not asked whether there was in fact a depth sounder on the vessel, whether it worked or whether he knew how to use it.

The only evidence that there may have been a depth sounder on the vessel was that of Mr Burge who stated at par 14 of his report that from the material supplied to him and "from his research" he understood that the vessel had a depth sounder/ fish finder sonar system fitted. In this respect it would appear that his research was confined to using the internet to research the characteristics of the particular vessel.

The primary judge's finding on this issue was as follows (at [116]):

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

The finding in the last sentence of the above passage was challenged.

The primary judge's finding with respect to the existence of a duty of care

The appellant submitted at trial that the respondents had been requested to attend the test-drive of the vessel as they had boat licences. As each had driven the vessel they had each exercised a position as a joint-master of the vessel and/or were in command or in charge of it within the meaning of s 4 of the Marine Safety Act 1999. The appellant further submitted that it could not be suggested that by mooring or anchoring the vessel in Botany Bay, that somehow the duty of care which was otherwise owed by the respondents to those on board ceased for the period of time that it was so moored. It was contended that persons who operate a vessel have a duty to all those on board and to those in the near vicinity to exercise reasonable care in its management and operation.

The scope of the duty of care was defined, the appellant contended, by the specific purpose, communicated to all on board, of moving the vessel to the position where the water was sufficiently deep to enable diving from the vessel to take place safely. At the very least, the scope of the duty was to take reasonable care to ensure that the position to which the vessel had been moved was safe for diving and that that position was maintained unless the respondents advised otherwise.

At [122] of his reasons, the primary judge noted the submission on behalf of the respondents that Buddy, to whom Mr El Khoury as owner had given permission to take the vessel for a test drive, did not give any evidence of having placed any particular person in charge or in control of the vessel or having assigned to any such person the task of being its master or skipper.

At [123] his Honour found, in my opinion correctly, that on the balance of probabilities Danny and Mickey were in control of the operation of the vessel at the times they each drove it. More particularly, they were both in control of its operation when it was being driven towards and anchored at the second anchor position. The issue, however, was whether having moved the vessel for the sole purpose of finding a position where they considered that the water was deep enough to dive into safely, Mickey and Danny had a duty to exercise reasonable care to ensure that the vessel did not move back towards the shore into shallower water.

At [128] the primary judge found that the evidence did not establish that the respondents were placed in command or in charge of the vessel by Buddy or anyone else. Furthermore, there was no reliable evidence of the respondents having given instructions or directions about diving whilst the vessel was moored at the second anchor position. His Honour was therefore not satisfied that either of Danny or Mickey were the "master" of the vessel within the meaning of s 4 of the Marine Safety Act .

At [129] the primary judge stated that it is what Danny and Mickey said and did when the vessel was moved from the first to the second anchor position which constituted the relationship between them and the appellant that gave rise to a consideration of the existence of a duty of care: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [31] per McHugh J.

The primary judge then referred to the judgment of Allsop P, with whom Simpson J agreed, in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 where at [102] the learned President observed that where the posited duty was a novel one, the proper approach was to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the imputed tortfeasor by reference to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.

At [103] of Caltex the President listed those "salient features" to include the following:

(a) the foreseeability of harm;

(b) the nature of the harm alleged;

(c) the degree and nature of control able to be exercised by the defendant to avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;

(e) the degree of reliance by the plaintiff upon the defendant;

(f) any assumption of responsibility by the defendant;

(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;

(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;

(i) the nature of the activity undertaken by the defendant;

(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;

(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;

(l) any potential indeterminacy of liability;

(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;

(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;

(o) the existence of conflicting duties arising from other principles of law or statute;

(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and

(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.

The appellant submitted to the primary judge that the proper identification of the risk of harm was that of the vessel moving and the appellant thereafter diving into shallow water and sustaining injury. At [133] of his reasons, his Honour considered that the identification of the risk of injury to the appellant in that way focussed incorrectly on the question of causation rather than the proper characterisation of risk. His Honour then continued:

"... The actual risk of serious injury to the [appellant] arose at both anchor points from the risk of impact on the bottom of the bay upon diving into water of uncertain depth. Such a risk of harm was foreseeable as [Mickey] had hit the bottom in his last dive at the first anchor point. [Danny] and [Mickey] had assumed the responsibility of moving the vessel to a place which they considered to be safe for diving and the [appellant], his brothers and [Charlie] were then on board. The Boating Handbook at p 58 makes it plain that the obligations of an operator of a boat do not cease when a vessel is moored. As [Danny] and [Mickey] had assumed the responsibility of moving the vessel and had chosen the anchoring position, they had also taken on the responsibility of ensuring that the sports cruiser was securely anchored and was not brought back by wind or currents into water that was too shallow for safe diving."

I would interpose that the last sentence of the above passage should be read as if the words "taking reasonable care to ensure" was substituted for the word "ensuring".

The appellant relied particularly on salient features (c), (d) and (e) referred to by Allsop P in Caltex . However at [135] of his reasons, the primary judge disagreed with the appellant that the avoidance of harm was totally within the respondents' control. They had moved the vessel to a position where they had visually assessed the water to be safe for diving. In the absence of the vessel being fitted with a working depth sounder, the visual assessment was the principal means available to them for judging the depth of water.

At [137] his Honour found that whilst Danny and Mickey had boat licences and limited boating experience with pleasure craft, the evidence did not establish that either of them had any expertise in determining water depth, let alone knowledge of any irregularity in the sea bottom of Botany Bay. All those on board the vessel were adults who were able by visual means to determine for themselves whether they considered the water was safe into which to dive. None of those on board told Danny or Mickey that they were reliant upon them to ensure that where the vessel was anchored was safe, and would continue to be safe, for diving.

Although Danny and Mickey were responsible for moving and anchoring the vessel in the second anchor position, his Honour found (at [140]) that neither of them controlled the appellant's own assessment that the water depth was safe to dive into. His Honour continued (at [140]):

"... By stating, 'that's far enough' or 'that's deep enough', [Danny] was expressing his own opinion as to the depth of the water. [Mickey] looked at the water prior to diving and had formed the view that it was safe to dive in. He did not 'make any comment to that effect to anyone else' on board the vessel: ex 4 para 21. They were not creating the risk, or encouraging or enticing those on board into a dangerous situation. There was nothing to suggest to the defendants that the [appellant] and his brother Sam would not exercise, as they had done at the first anchor point, their own judgment before entering the water. I reject the contention that [Danny] and [Mickey] provided any encouragement or assurance to the [appellant] that the area was safe for diving."

The primary judge concluded his discussion as to the existence of duty of care in the following terms (at [142]):

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

The respondents by their notice of contention challenge the finding in the above passage which I have emphasised.

The primary judge's findings with respect to breach of duty

At [144] of his reasons the primary judge noted that it was common ground that the issue of breach of duty was governed by s 5B of the CL Act . For the purposes of s 5B(1)(a) and (b) his Honour found that the risk of harm to the appellant by diving into water of uncertain depth was foreseeable and was not insignificant. He also found that the "likely seriousness of the harm" was undoubtedly grave and that the "burden of taking precautions to avoid the risk of harm" was not significant: ss.5B(2)(b), (c).

At [148] the primary judge listed the breaches of duty ultimately pressed by the appellant in final address. They were:

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

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

...

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

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

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

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

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

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

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

At [149] his Honour rejected breaches (v) to (vii) and (x) given his finding that the appellant had not established that the vessel dragged its anchor either through inadequate anchor cable being extended as a consequence of the strength of the wind.

At [150] his Honour found that neither of the respondents knew or ought to have known that the topography of the sea bottom of Botany Bay was rarely level and that it was likely that there would be places where shallow banks would be found as Mr Burge had opined. His Honour continued in the following terms:

"... The assessment that was made by [Danny] and [Mickey] that the water was deep enough for safe diving was fortified by the dives that were made before the [appellant]'s second dive. Reasonable people in the positions of [Danny] and [Mickey] would have held the belief that the water was sufficiently deep to dive into safely. [Danny] and [Mickey] were entitled, as I have said, to act on the expectation that the [appellant], an adult, would exercise reasonable care for his own safety before diving. Although the likely seriousness of the harm was grave, the "probability that the harm would occur if care were not taken" was low: s 5B(2)(a) Civil Liability Act . A reasonable response to the risk did not require a warning to those on board the vessel that there was likelihood or a possibility that the water depth could change or that there was a risk of diving into a shallow bank."

The primary judge then referred (at [151]) to some evidence of Mr Burge to the effect that, in the absence of depth sounder to determine the depth of the water, there were three other means which could have been utilised for that purpose, namely, dipping a boat-hook or paddle into the water; dropping a weighted rope or line into the water or by the respondents lowering themselves gently into the water and then simply wading or swimming around the circle through which the boat would swing on its anchor.

His Honour rejected each of these suggestions, holding (at [153]) that he was not persuaded that reasonable people in the positions of Danny and Mickey would have responded to the risk of the appellant diving into water of uncertain depth by adopting any of the measures referred to. It is convenient at this point to deal with the submission that his Honour erred in that finding. The difficulty faced by the appellant in advancing that submission is that there was no evidence that there was a boat-hook or paddle on the vessel or that there was a weighted rope or line which was available for the purpose suggested. As to the third measure, his Honour noted that Mickey had dived from and had swum in the vicinity of, the vessel on possibly three or four times without mishap before the appellant's second dive. In any event his Honour did not consider that the measures advanced by Mr Burge would have detected the shallow bank into which the appellant dived. In my view the appellant has not demonstrated error with respect to these findings.

It was then submitted that the respondents breached their duty of care by failing to take a sighting of a landmark when mooring. At [157] of his reasons the primary judge noted that neither Danny nor Mickey were asked directly whether either had or had not in fact fixed a reference point against which the vessel's position could be checked. His Honour continued:

"... There was nothing in the prevailing weather conditions or what had occurred at the first anchor point, which suggested to [Danny] and [Mickey] that the vessel would be likely to drift back into the shallow waters of the first anchor point and the vessel's position was to be monitored against a landmark. Reasonable people in the position of [Danny] and [Mickey] would, in my opinion, have considered that it was unlikely the vessel would move to any significant extent and that no more was required than checking periodically that the vessel was not being brought back by winds or currents into shallow waters. A reasonable response to the risk did not require a warning that the vessel might move on its anchor line. As I have found that the sports cruiser did not move to any significant extent , I do not consider that the sighting of a landmark by [Danny] and [Mickey] would, in any event, have detected the vessel's slow movement on its anchor line for a short distance to a shallow bank." [emphasis added]

That part of the above passage emphasised was the subject of challenge on the appeal.

His Honour therefore concluded (at [158]) that he was not satisfied that either Danny or Mickey had failed to act in a manner in which reasonable people in their positions would have acted. Accordingly, he found that they did not breach the duty of care which they owed to the appellant. Relevantly, at [159] his Honour noted that a duty of care imposes an obligation to exercise reasonable care. As was observed by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at [5]:

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

The primary judge's findings with respect to a dangerous recreational activity

Although not necessary for his decision having found no breach of duty, the primary judge proceeded to consider the respondents' submission that they were not liable for the harm suffered by the appellant as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by him.

The relevant statutory provisions are to be found in Division 5 of Part 1A of the CL Act and are as follows:

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."

An " obvious risk " has the same meaning as it has in Division 4, the relevant provisions of which are as follows:

5F Meaning of "obvious risk

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

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

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

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

5G Injured persons presumed to be aware of obvious risks

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

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

5H No proactive duty to warn of obvious risk

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

At [167] of his reasons the primary judge noted that the proper approach to the application of the foregoing provisions was discussed by this Court in Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81-952. At [27] - [28] of my judgment in that case, with which Campbell JA and Handley AJA agreed, I noted 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. The test is an objective one and thus must take account of the objective circumstances of the person whose conduct is being assessed.

At [35] of my reasons in Jaber I said this:

"Whether or not a risk is " obvious " may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff."

I then referred to the definition " obvious " which I had adopted with the agreement of Mason P in Wyong Shire Council v Vairy [2004] NSWCA 247 at [161] to the following effect:

"' obvious ' means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff] exercising ordinary perception, intelligence and judgment."

At [36] of my reasons in Jaber I cited the following passage from my judgment in Vairy :

"[162] In this definition 'condition' refers to the factual scenario facing the plaintiff. Thus in a diving case the condition might typically be the fact that the plaintiff is faced with water of unknown depth. Under such a condition the risk would be that diving into the water (while the depth remains unknown) might result in (serious) injury. This risk would be considered obvious if, in the context of the case, it was perceptible to a reasonable person in the position of the plaintiff that if you do not know the depth of a body of water into which you are about to dive, then to dive into such water under such conditions inevitably brings with it the risk of injury."

In Jaber I then went on to consider whether the diving activity involved in that case was one that should be categorised as a " dangerous recreational activity " within the meaning of s 5K of the CL Act in that it involved a significant risk of physical harm.

Having referred to passages from the judgments in Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31], Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [5] and [10]; Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Tort Reports 81-831 at [28] - [31] and Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at [13] - [18] per Ipp JA and at [144], [145] per Basten JA, I drew upon those judgments to summarise in my judgment in Fallas what I considered to be the appropriate approach to adopt with respect to s 5K (repeated by me at [50] of Jaber ):

"90 ... If, as I believe to be the case, the word "significant" in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm. This is consistent with the third approach referred to by Basten JA in [144] of his judgment and which I would respectfully adopt as the correct approach to a case of the present kind ...

91 I am conscious of the observations of Ipp JA in [18] of his judgment that "significant" means a standard somewhere between a trivial risk and a risk likely to materialise. A real chance of the risk materialising lies somewhere between these two standards although probably closer to the second than the first. I accept that there is merit in not seeking to define the term with precision, as its application requires a normative judgment in light of the particular facts and circumstances of each case. However, I see no danger in adopting as no more than a general guide that the risk should have a real chance of materialising for it to qualify as significant. But I emphasise that such a standard, which as I have said lies between the extremes articulated by Ipp JA, is to be regarded as what it is - no more than a general guide.

92 It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of "dangerous recreational activity" in s 5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. In other words, as his Honour notes at [43], [46] and [47] of his judgment, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs."

See also Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 at [75] and [76] per Beazley JA with whom McColl JA and, relevantly, Basten JA agreed.

At [171] of his reasons, the primary judge set out his findings with respect to the appellant's knowledge of the circumstances in which he found himself:

"The [appellant] was aware that [Mickey] 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 [Danny] and [Mickey] considered that the water was deep enough to dive into safely. The [appellant] 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 [appellant] 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 [appellant] had seen the other three people dive safely from the bow. The [appellant] 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 [appellant] noticed that the water was slightly lighter in colour than before the first dive but was still dark blue. The [appellant] 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."

There was no challenge to these findings.

The primary judge then set out some cross-examination of the appellant where he acknowledged that there was a risk of serious injury if he dived into water without knowing its depth or into water of uncertain depth. Accordingly, his Honour found (at [174]) that as the appellant knew in a general sense that diving into water of uncertain depth might result in serious injury, that was a risk which was apparent to him and, therefore, apparent to a reasonable person in his position at least before he made his first dive. His Honour then distinguished the facts in Jaber on the basis that in that case Mr Jaber had not dived in from the bollard from which he did dive prior to injuring himself: nor had seen any other persons dive from that bollard. In contrast, in the present case at least seven dives were made safely from the vessel's bow before the appellant's second dive and he was aware of that fact.

The primary judge concluded this aspect of his findings in the following terms:

"[175] A reasonable person in the position of the [appellant] 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 [Mickey] had come into contact with the sea bottom. A reasonable person in the position of the [appellant] 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 [appellant]'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 [appellant] 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 [appellant]'s position: s 5F(1) Civil Liability Act ."

The primary judge then turned to the issue as to whether the activity in which the appellant was engaged was a " dangerous recreational activity " within the meaning of s 5K of the CL Act . After referring to the passages in the authorities which I have recorded at [ 84 ] above, his Honour concluded (at [183]) that

"[o]bjectively considered, the risk of the [appellant] 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 [appellant] was engaged in a 'dangerous recreational activity' within the meaning of s 5K CLA.

The resolution of the issues on the appeal

(a) The challenged findings of fact

(i) Wind speeds

The primary judge found (at [88]) that whilst the vessel was in Botany Bay between 1.15pm and 2pm, the prevailing winds fell within the Beaufort Wind Scale range of "light winds" to "moderate winds". The correct finding, so the appellant submitted, was that between 12.30pm and 2pm there were gusty winds of approximate strength of 50 kilometres per hour (kph). On the basis of his Honour's findings, the maximum speed of "moderate winds" in accordance with the Beaufort Wind Scale (the BWC) was 29 kph. Under the column headed "Description at Sea" the BWC states that the effect of that speed as: " Small waves - becoming longer; fairly frequent white horses ". One might interpret that description as one referring to the water being choppy. If so, it was consistent with the lay evidence.

The wind speed contended for by the appellant of 50 kph is described in the BWS as "strong winds" having the following effect at sea, namely, " Large waves begin to form; the white foam crests are more extensive with probably some spray ". The difficulty with the appellant's submission is that the lay evidence as to the sea conditions did not support a wind speed of the strength for which the appellant contends. Although, as the appellant submitted, the witnesses' description of the wind strengths varied, at no time did any of them describe the conditions in a manner which would be remotely consistent with what was put to them in cross-examination as to the sea conditions such as to enable an inference to be drawn that the wind strength approximated 50kph. The appellant's own description was that the day was warm " with some light gusty breezes ". Added to that are the findings of his Honour at [80] of his reasons (recorded at [ 34 ] above) and which were not challenged.

Although it was open to the primary judge to accept the wind speeds recorded at Sydney Airport at the relevant time, it was equally open to him to accept the evidence of the lay witnesses which, although their descriptions varied to a degree, were generally consistent with each other. Importantly, as the primary judge found at [82] of his reasons, none of five of the six persons on board the vessel gave evidence of high wind speeds, the vessel moving or swinging on her anchor, the vessel dragging on her anchor or swinging in the breeze and none referred to anything other than the wind " coming up a little bit ".

In the foregoing circumstances, it was clearly open to the primary judge to accept the evidence of the lay witnesses and to reject that of Mr Burge based on the wind speed readings at Sydney Airport. As no error has been demonstrated in the primary judge taking that course, it follows that the appellant's challenge to his Honour's findings with respect to the wind issue should be rejected.

(ii) The sea conditions at the first anchor position

The primary judge found that at the first anchor position the vessel did not drag its anchor either through an inadequate anchor cable being extended or as a consequence of the strength of the wind. He found that not much was needed for the vessel to drift into water that was too shallow for safe diving. That finding was challenged, it being submitted that as a result of the wind speed the vessel did drag its anchor and drifted towards the shore.

This challenge again depends upon his Honour's finding as to the wind speed at that time. According to the Bureau of Meteorology's records, the mean wind speed at Sydney Airport over the ten minutes prior to 1.30pm was 61kph which is described in the BWC as " Near gale " when the " Sea heaps up and white foam from breaking waves begins to be blown in streaks along the direction of wind ".

It was not put to any of the lay witnesses that the sea conditions at the first anchor position could be so described. His Honour found that there was little drift from that position and this would be consistent with the appellant's own evidence that he could see a yellowness in the water, that is, the sand underneath the vessel. It was put to Danny in cross-examination that at the first anchor position it was discovered either by himself or Mickey that the vessel had drifted backwards from its mooring, to which he responded " I don't know if it drifted or it originally stopped where it was shallow " to which he added, " It could have been either of the two. Could have been either when we stopped in shallow waters or it might have been stopped a bit deep and then drifted back. I can't pinpoint which one it was. " Nevertheless he thought it was deep enough for diving. Danny was not asked whether he could see the bottom at the first anchor position. Although Mickey was asked, he said that he could not remember seeing the bottom.

In my opinion it was open to the primary judge to make the finding that is now under challenge. No error in him doing so has been demonstrated.

(iii) The depth sounder

The last challenge was to his Honour's finding that he was not satisfied on the balance of probabilities that there was a depth sounder in working order fitted to the vessel or that anyone on board knew how to operate it.

Even if, as the appellant submitted, there was evidence that Danny and/or Mickey knew how to operate a depth sounder, their evidence did not support a finding that they were aware that there was a depth sounder fitted to the vessel. Although Mr Burge's evidence was unchallenged in the sense that he was not cross-examined, it was open to his Honour in the circumstances to attach little weight to Mr Burge's "understanding" that the vessel was fitted with such a device.

The onus being upon the appellant to establish that the vessel was fitted with an operative depth sounder, the person who could have provided that evidence was the owner, Mr El Khoury. Although he was joined as a defendant to the proceedings, he was dismissed therefrom on the fourth day of the hearing. He could have been called by the appellant thereafter. There is no reason to believe that the appellant would not have obtained leave to call him even if his case had then been closed.

In my opinion the appellant has not demonstrated error on the part of the primary judge in not being satisfied on the balance of probabilities that the vessel was fitted with a depth sounder in working order.

(iv) Did appellant dive into a shallow bank or did the vessel drift back towards the shore into shallow water?

The final, but most relevant, finding challenged by the appellant was that it was more probable than not that the appellant dived into a shallow bank. It was submitted that the correct finding was that the vessel had drifted back towards the shore into shallow water, due to the effects of wind causing it to drag its anchor.

This is a critical issue on the question of breach of duty as well as causation, for if it was open to his Honour to make the finding he did, then the appellant's case on breach becomes difficult to sustain. This is so because in oral submissions the appellant submitted that there were only two possibilities which resulted in the appellant diving into water which was of inadequate depth. The first was that the vessel drifted towards the shore into shallower water as a consequence of dragging its anchor. The second was that it drifted to a point where it was above a sandbank.

In this context it is of significance that the existence of a shallow sandbank was consistent with the evidence of Mr Burge to which I have referred at [42] above. There was thus unchallenged evidence from which his Honour could infer that the appellant dived into such a bank. The only evidence that the vessel may have drifted from the second anchor position was that of the appellant to the effect that as time progressed the wind picked up so that the visibility of the water was not as good although " it still seemed to be dark blue ". In cross-examination he said that the water was darker when he first dived at the second anchor position than his second dive which resulted in his injuries. That notwithstanding, when it was put to him that he still dived, he said:

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

The following exchange then took place:

"Q. Are you saying, are you, that you 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 slightly little different but it was still dark blue."

On the basis of that evidence it was open to his Honour to find, as he did at [108] of his reasons (recorded at [ 46 ] above), that it was

"more probable than not that when anchored in the second position, the sports cruiser slowly drifted for a short distance on its anchor line so that, when the [appellant] came to make his second dive, the particular area of water into which he intended to dive was not sufficiently deep for save diving. It is more probable than not that the [appellant] dived into a shallow bank."

In my opinion the evidence was clearly sufficient to justify this finding. Accordingly, the appellant's challenge to that finding should be rejected.

(b) Breach of duty

The primary judge found at [133] of his reasons that Danny and Mickey, having assumed the responsibility of moving the vessel and choosing the second anchor position, had also taken on the responsibility of taking reasonable care to ensure that the vessel was securely anchored and was not brought back by wind or currents into water that was too shallow for safe diving.

With respect to the issue of breach of duty, and accepting his Honour's findings in terms of s 5B(1)(a) and (b) of the CL Act that there was a risk of harm when diving in shallow water that was foreseeable and which was not insignificant, the issue became in terms of s 5B(1)(c): would a reasonable person in the position of Danny and/or Mickey have taken precautions to prevent that risk from materialisation? In this respect the appellant asserted a number of breaches which his Honour set out at [148] recorded by me at [69] above. In his oral submissions the appellant submitted that at the second anchor position (as well as at the first), the vessel must have dragged its anchor into shallower water. This was not noticed by anyone on board but the question arose as to what precautions, as a matter of reasonableness, Danny or Mickey should have taken to ensure that the vessel did not drag its anchor. It was submitted that visual observations to the effect that the water was dark blue and, therefore, was considered deep enough to dive into was insufficient. The respondents should have used a depth sounder or, failing that, dipped a boathook or paddle into the water, dropped a weight rope or line into the water or swam around the vessel to the extent of its swing arc or circle. I have rejected these submissions at [73] above in terms which need not be repeated.

It was then submitted that in any event the respondents should have warned the appellant that they could not be sure that the water was deep enough into which to dive safely. I can see no basis upon which it can be legitimately contended that such a warning should have been given. There can be no doubt that the appellant was in just as good a position to judge the depth of the water as were the respondents. He knew that at the first anchor position that the water did not appear to be all that deep as he could see the yellow sand below. When the vessel was moved to the second anchor position and before he dived for the first time, he visually assessed the depth of the water as had the others on board and noted that it was of a dark blue colour. When he made his second dive which resulted in his injuries, it still seemed to be dark blue although, apparently, a little bit different to the first dive. As the evidence established that the appellant was at all times aware of the risks of diving into water of unknown depth, any warning by the respondents of the nature of that contended for would not have informed him of anything he did not already know. Furthermore, the respondents were entitled in the circumstances to expect that the appellant would exercise reasonable care for his own safety: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [45] - [46], Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 at [35], Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Reports 82-065 at [37].

The appellant nevertheless submitted that the respondents did have a greater skill than that of the appellant in determining the depth of the water as they had driven the vessel. In my view there is no merit in this submission and it should be rejected.

The appellant finally submitted that the vessel must have dragged its anchor because of the failure of Danny to extend sufficient anchor cable to avoid that occurring. In this respect Danny had acknowledged in cross-examination that unless sufficient cable was deployed there was a tendency for a vessel to drift or drag its anchor: see his evidence recorded at [48] above. However, as I there pointed out at [49] Danny was not asked whether he had in fact deployed a length of cable in accordance with the "rule of thumb" to which he was referred in his evidence. In these circumstances it was clearly open to the primary judge to find, as he did, that any drifting of the vessel was not due to a failure on the part of Danny to deploy sufficient anchor cable.

The respondents submitted that his Honour was correct to find that the question of the precautions to be considered for the purposes of s 5B(1)(c) and (2) of the CL Act must be considered " on the basis of the facts which the [respondents] knew or ought to have known ": Shaw v Thomas at [59]. Those facts were:

All of the men who dived from the vessel including the appellant considered it safe to do so at the time they dived;

All of the witnesses said that the water was blue or dark blue and no-one said that they could see the sandy bottom;

This was in contrast to the first anchor position where the appellant could see the sandy bottom beneath the vessel;

No-one noticed the vessel swinging or dragging on its anchor;

No-one observed any high or gusty winds;

The vessel was anchored at the second anchor position some ten metres further out from any other boats in the area;

Each of the respondents then dived into the water without mishap and had observed others doing so as well;

No-one observed a sandbank or the sandy bottom or noticed that the water was light in colour which may have indicated that the vessel had moved into shallower water;

Both Mickey and Danny considered the water was deep enough at the time the vessel was anchored at the second anchor position and both dived in circumstances where they judged the water to be deep enough for that purpose.

The respondents further submitted that the appellant did not assert that Danny or Mickey knew that the water was too shallow to dive into or that there was an unseen sandbank. It was therefore submitted that the appellant's case was that the scope of the respondents' duty of care was to take reasonable steps to ascertain from time to time whether the water remained of a depth sufficient to enable the appellant to dive safely. The precautions which, so the appellant contended, should have been taken in response to that duty, were those referred to by Mr Burge as well as sighting a landmark which would have indicated if the vessel had moved. I have already expressed the opinion that in the circumstances it would not have been reasonable for the respondents to have taken the precautions referred to. The primary judge was not satisfied that the vessel dragged its anchor either through an inadequate deployment of an appropriate length of anchor cable or that the strength of the wind was such that the respondents should have been aware that the anchor would drag in any event. In my opinion these findings were open to his Honour on the evidence and do not bespeak error.

For the foregoing reasons in my opinion the appellant's challenge to his Honour's finding of no breach of duty should be rejected.

(c) The issue of dangerous recreational activity

The primary judge found at [177] of his reasons that the risk of serious injury to the appellant arising from impact with the bottom of the Bay upon diving into water of uncertain depth would have been obvious to a reasonable person in his position within the meaning of s 5F(1) of the CL Act . The appellant takes issue with that finding.

The appellant submitted that the following circumstances were relevant to this issue:

The vessel was moved from the first anchor position to the second anchor position for the sole purpose of ensuring that the depth of water was such as to enable diving to be carried out safely and all on board were aware of that purpose;

There was no change in the conditions that the appellant or any other person on board had detected once the vessel was anchored at the second anchor position;

All who dived from the boat in that position had done so safely including the appellant;

To the appellant's knowledge when he was about to undertake his second dive there were others in the water in the near vicinity who had dived prior and had, to his observation, dived safely so that there was nothing to alert the appellant to any change in the depth of the water.

The primary judge had found (at [175]) that a reasonable person in the position of the appellant would have held the belief that the water was sufficiently deep to dive into safely although such a person would not have considered that there was no risk of injury when diving into the waters of the Bay from the bow of the vessel. This was not a case, his Honour noted, involving a body of water such as a swimming pool where the depth of the water is indicated and is therefore certain. Thus his Honour found that a reasonable person in the position of the appellant would have concluded that the risk of harm was low. However, given the provisions of s 5F(3) that a risk of something occurring can be an obvious risk even though it has a low probability of occurring as well as s 5F(4) that a risk can be an obvious risk even if the condition or circumstance which gives rise to it is not physically observable, his Honour found that the risk in the present case was relevantly "obvious".

When carefully read, I do not understand the appellant's submission to challenge that finding. Of itself it would only have the effect of negativing any duty of care on the part of the respondents to warn the appellant of that risk: see s 5H(1) of the CL Act . The appellant's submissions were directed more to his Honour's finding at [183] (which I have recorded at [88] above) that the appellant's activity of diving into the water was a recreational activity " that involves a significant risk of physical harm ", within the meaning of the definition of " dangerous recreational activity " in s 5K of the CL Act .

In the course of oral argument the present case was contrasted with that of a person diving off a vessel into the ocean where the depth of water is, relevantly, unlimited. I accept that in such a case it could not be said that there was any risk, let alone an obvious risk, of harm occurring as a consequence of that activity. However, the present case is one where the vessel was moored only 50 to 60 metres from the shoreline. Certainly the depth of water appeared to be adequate simply by virtue of its dark blue colour. It was no doubt for that reason that his Honour considered that a reasonable person in the position of the appellant would have concluded that the risk of harm from diving into that water was low. Once the risk existed and was known to the appellant as he conceded, then in my view it falls within the definition of an " obvious risk ".

The expression " obvious risk " in s 5F(1) of the CL Act has been held by me to mean that both the condition and the risk are apparent to and would be recognised by a reasonable person in the position of the plaintiff, exercising ordinary perception, intelligence and judgment: Jaber at [35]. At [36] I noted what I had said in Vairy at [162] and which I have recorded at [82] above. What I there said requires, I think, modification so far as it is suggested, without limitation, that the risk of diving into water of unknown depth would be considered "obvious". The modification is that the proposition in question cannot be divorced from the factual context in which it is to be applied. Thus in the example I have given with respect to a person diving off a boat in the middle of the ocean, the depth of water is unknown but it could not be said that it would be perceptible, let alone apparent, to a reasonable person in the position of the person diving that because of that fact the risk of injury was obvious. However, the factual context of the present case is different for the reasons I have indicated. Even so, whether or not any risk is " obvious " may well 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 appellant.

In the present case a reasonable person in the position of the appellant would be aware that the vessel had moved from 20 or so metres further to the east from its first anchor position to the second anchor position in order to move into deeper water. The colour of the water was significantly different at that location and thus gave the appearance of depth. Notwithstanding his Honour's finding that the probability of the risk of harm was low, I remain of the opinion that that low risk of probability would still be readily apparent to the reasonable person in the position of the appellant as it was to the appellant himself. In this respect it is to be noted that the risk may be " obvious " even though it is not significant. That is to be contrasted with a " dangerous recreational activity " which is defined in s 5K to mean a recreational activity that " involves the significant risk of physical harm ".

As noted above at [84] the relevant standard lies somewhere between a trivial risk and one that is likely to occur. In Fallas I expressed the view that, as a general guide, the risk could not be " significant " unless there was a real chance of it materialising. As one must judge the issue prospectively and not retrospectively, the question is whether there was a real chance of the risk of what would clearly be significant harm occurring if the appellant dived from the position the vessel was in at the time he did so. The primary judge determined that by diving from the vessel's bow into the uncertain depth of Botany Bay the risk of harm could not be regarded as trivial or very slight. Although the risk of harm was low, the potential harm was catastrophic. The error into which I consider his Honour fell was to assume that because the risk of harm was neither trivial nor very slight but was nevertheless low in terms of the probability of its occurrence, it followed that it was significant.

In their written submissions the respondents contended that the risk was significant in terms of its catastrophic consequences. In my opinion that is insufficient. For the risk to be found to be significant there must be a finding not only that it was more than trivial or very slight but also, generally speaking, that there was a real chance of the risk materialising. There is a difficulty in accepting that that standard was satisfied in the present case given his Honour's finding, not challenged by the respondents, that the probability of the risk of harm materialising was low.

For the foregoing reasons in my opinion his Honour was correct in finding that the risk was " obvious " but in error in finding that the appellant was engaged in a " dangerous recreational activity " within the meaning of s 5K of the CL Act .

The respondents' notice of contention

The respondents' contended that the primary judge was in error in finding at [142] of his reasons that the respondents owed to those on board the vessel an obligation not only to exercise reasonable care in locating a position from which the occupants of the vessel could dive safely but also in ensuring that the vessel was not brought back by winds or currents into water that was too shallow for safe diving. It was submitted that the respondents had no duty of care except when their relationship with the passengers on the vessel was one of driver and passenger. There was no relevant relationship between the respondents on the one hand and the appellant and his fellow travellers on the other that arose once the vessel was anchored in the second anchor position. In particular, there was no finding that the respondents were exercising some form of control over the location of the vessel once the second anchor position was established. Once the vessel was stopped at that point and the anchor deployed (there being no evidence that the anchor was not properly secured), the relationship between Danny and Mickey and the appellant was no different to the relationship between the appellant and his brother Sam or the appellant and Charlie or the relationship as between Mickey and Danny.

It was further submitted that no person assumed responsibility for the safety of any other person when diving off the vessel. There was no finding by his Honour that any person said or did anything so as to assume responsibility for ensuring that the vessel did not move, that there were no sandbanks, or that as consequence of wind and current the vessel did not drift. It was no doubt in the interests of all of them that it did not, but no one, including the respondents, assumed responsibility to take reasonable care to ensure that that did not occur.

I have already expressed the view that neither of the respondents had any duty to warn the appellant that the water depth may not be sufficient to enable him to dive safely from the vessel. Each of those on board who dived from the bow of the vessel without mishap thought the depth was sufficient for that purpose. There was nothing to alert them to the possibility either of the presence of a sandbank or that otherwise the vessel had drifted into water of inadequate depth.

When one takes account of the "salient features" referred to by Allsop P in Caltex (and which I have recorded at [ 61 ]) I am unable to see that once the vessel was anchored at the second anchor position, either of the respondents continued to exercise some degree of control over the movement of the vessel or that they had assumed responsibility to take steps to ensure that that did not occur. Equally, I do not see how it can be asserted that the appellant was in a position of vulnerability vis-a-vis the respondents or either of them. Certainly, he had the capacity to protect himself and it would be reasonably expected of the appellant that he would satisfy himself that the water was of sufficient depth to enable him to dive safely. In fact that is precisely what he did. In this respect the respondents could do no more than what the appellant could (and did) do, namely, judge the depth of water visually.

Nor was there any evidence accepted by the primary judge of any relevant reliance by the appellant upon the respondents doing anything. In fact, his Honour expressly found (at [51]) that neither Mickey nor anybody else reassured or encouraged the appellant to dive prior to him undertaking the second dive in which he was injured. This finding was not challenged.

In the foregoing circumstances, in my opinion his Honour was in error in finding that the respondents owed to the appellant a duty to take reasonable care to ensure that the vessel did not drift into shallow water as a consequence of the wind or the currents. They were ignorant with respect to the latter as was everyone else and in fact it was not suggested that they ought to have been aware of the prevailing current. Furthermore, the respondents were not professional operators of a dive boat. They had been invited to accompany Buddy on the test drive on the same terms as the others, including the appellant, had embarked upon the vessel.

In Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [34], McHugh J said this:

"If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community ... To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute. ..."

This sentiment of his Honour has been applied on a number of occasions since it was written. Taouk v Waste Recycling & Processing Service of NSW [2003] NSWCA 273 per McColl JA, Sheller and Beazley JJA agreeing; Parissis v Bourke [2004] NSWCA 373 at [7] per Tobias JA; Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111 at [54] per Nettle JA; Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752 at [89] per Sackville AJA, Basten and Campbell JJA agreeing; Wilson v Nilepac Pty Ltd [2011] NSWCA 63 at [113] per Tobias JA, Beazley and Whealy JJA agreeing; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [252] per Campbell JA, Sackar J agreeing.

In the present case the common experience of the community with respect to the scenario the subject of this litigation would be one which, in my opinion, would not create an expectation that would categorise the conduct of the respondents after they secured the vessel in the second anchor position, as being responsible for the injuries which the appellant, regrettably, sustained.

For the foregoing reasons, I am of the opinion that his Honour erred in finding that the respondents owed a relevant duty of care to the appellant.

The marine limitation issue

In view of my findings with respect to the various issues canvassed above, it is unnecessary to deal with the limitation question. On the hearing of the appeal it was acknowledged that if this matter was to be pursued, the submissions on it made by the parties would need to be supplemented. It was therefore considered that the issue would not be decided unless it became necessary to do so which it is not.

Conclusion

The result of the foregoing is that apart from the issue as to whether the appellant engaged in a " dangerous recreational activity " within the meaning of s 5K of the CL Act , he has failed on all issues. It follows in my opinion that no relevant error on the part of the primary judge has been demonstrated. I would therefore propose that the appeal be dismissed with costs.

**********

Decision last updated: 16 December 2011

Medium Neutral Citation:	Laoulach v Ibrahim [2011] NSWCA 402
Hearing dates:	29 November 2011
Decision date:	16 December 2011
Before:	Giles JA at 1; Macfarlan JA at 2; Tobias AJA at 3
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORTS - negligence - personal injury - diving accident - existence of duty of care - breach of duty of care - dangerous recreational activity - obvious risk - limitation of liability for maritime claims
Legislation Cited:	Civil Liability Act 2002 ss 5B, 5F, 5H, 5K, 5L Limitation of Liability for Maritime Claims Act 1989 (Cth) Marine Safety Act s 4
Cases Cited:	Berrigan Shire Council v Ballerini [2005] VSCA 159; (2005) 13 VR 111 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 Council of the City of Greater Taree City Council v Wells [2010] NSWCA 147; (2010) 174 LGERA 208 Dovuro Pty Limited v Wilkins [2003] HCA 51; (2003) 215 CLR 317 Erwin v Iveco Trucks Australia Ltd [2010] NSWCA 113; (2010) 267 ALR 752 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Falvo v Australian Oztag Sports Association [2006] NSWCA 17; (2006) Aust Tort Reports 81-831 Jaber v Rockdale City Council [2008] NSWCA 98; (2008) Aust Rep 81-952 Laoulach v El Khoury [2010] NSWSC 1009 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Parissis v Bourke [2004] NSWCA 373 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Shaw v Thomas [2010] NSWCA 169; (2010) Aust Torts Reports 82-065 Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 Taouk v Waste Recycling & Processing Service of NSW [2003] NSWCA 273 Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; (2005) 221 CLR 234 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wilson v Nilepac Pty Ltd [2011] NSWCA 63 Wyong Shire Council v Vairy [2004] NSWCA 247
Category:	Principal judgment
Parties:	Appellant: Robert LAOULACH First Respondent: Danny IBRAHIM Second Respondent: Mickey BEAINI
Representation:	Appellant: B D Dooley SC/ G J Hickey Respondents: R Cavanagh SC/ C Purdy Appellant: Slater & Gordon Respondents: Sparke Helmore
File Number(s):	2007/265236
Decision under appeal	Citation: Laoulach v El Khoury [2010] NSWSC 1009 Date of Decision: 2010-09-16 00:00:00 Before: Price J File Number(s): 2007/265236