Moore v Woodforth

[2003] NSWCA 9

Reported Decision: (2003) Aust Torts Reports 81-686

Court of Appeal

CITATION:	MOORE v WOODFORTH [2003] NSWCA 9
HEARING DATE(S):	2, 3, 4 December 2002
JUDGMENT DATE:	6 February 2003
JUDGMENT OF:	Mason P at 1; Meagher JA at 114; Heydon JA at 115
DECISION:	See par 113
CATCHWORDS:	Negligence - snorkeller hit by motorboat - contributory negligence - volenti non fit injuria - lost earning capacity (ND)
PARTIES :	RODERICK MOORE v REECE WOODFORTH
FILE NUMBER(S):	CA 40111/2002
COUNSEL:	Appellant: F McAlary QC/ S McCarthy Respondent: J Sharpe
SOLICITORS:	Appellant: Benjamin & Khoury Respondent: Ebsworth & Ebsworth

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3137/2000
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

CA 40111/02

MASON P
MEAGHER JA
HEYDON JA

Thursday 6 February 2003

Robert Allan MOORE v Reece Gordon WOODFORTH

JUDGMENT

1 MASON P: On 3 January 1998 the appellant was injured when struck by the propeller of a motor boat owned and driven by the respondent. The appellant was snorkelling in the Swansea Channel at the entrance to Lake Macquarie.

2 The appellant was partially successful in the District Court. The respondent was found to have been negligent. A defence of volenti non fit injuria was rejected, but damages were reduced by 40% for contributory negligence. General damages were assessed at $150,000 and various items of special damages were agreed or assessed, making a total verdict of $216,570.

3 In his cross appeal the respondent challenges (1) the finding of negligence and (2) the rejection of the defence of volenti non fit injuria.

4 In his appeal the appellant challenges (1) the finding of contributory negligence and some of the specific findings upon which it was based, (2) the assessment of general damages and (3) the assessment of damages for economic loss.

5 The following extract from the reasons of Sorby DCJ sets the scene for the contested issues in the appeal:

The plaintiff was dressed in a half-wetsuit, goggles and a snorkel. He had a weight belt strapped to his body and was wearing a pair of fins. Fins, snorkel and goggles of a similar type were in evidence. Attached to the plaintiff’s weight belt was a 10 metre length of orange nylon rope. At the end of the rope was a white plastic buoy about 8”-10” in diameter. Attached to the buoy in addition to the orange cord was a piece of “S” shaped wire on which speared fish were attached if caught. The plaintiff carried a hand spear with a rubber sling used to propel the spear towards the fish.
The entrance to the Swansea Channel, as depicted on the map (PX1) is borded at its entrance by two breakwalls – one at Blacksmith’s Point (north) and one at Reid Mistakes Head (south), the latter known as Lucy’s Breakwall. Tucked around the corner and directly south of Lucy’s Breakwall is a small beach unnamed on the map, but known colloquially as “Stinky’s Beach”. It was at this beach that the…