Morton v State of Tasmania - [2006] TASSC 62

[2006] TASSC 62

CITATION: Morton v State of Tasmania[2006] TASSC 62

PARTIES: MORTON, Paul Gregory
v

TASMANIA, STATE OF
BATCHLER, David

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 103/2004
DELIVERED ON:  29 August 2006
DELIVERED AT:  Hobart
HEARING DATE:  10 and 11 November 2005, 29 August 2006
JUDGMENT OF:  Crawford, Slicer and Tennent JJ

CATCHWORDS:

Appeal and New Trial – In general and particular grounds – In general – Misdirection or non-direction – General principles as to grant or refusal of new trial – Failure to object to summing up at trial – Need for substantial wrong or miscarriage.
Supreme Court Civil Procedure Act 1932 (Tas), s50(1)(a).
General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234, applied.
Aust Dig Appeal and New Trial [168]
Torts – The law of torts generally – General principles – Volenti non fit injuria – Whether a defence – Rescue case – Rescue completed before risk of injury assumed.

Haynes v G Harwood & Son [1935] 1 KB 146; Ward v T E Hopkins & Son Ltd [1959] 3 All ER 225, considered.

Aust Dig Torts [7]

REPRESENTATION:

Counsel:
             Appellant:  D J Porter QC
             Respondent:  S P Estcourt QC and T D Cox
Solicitors:
             Appellant:  Avery Partners
             Respondent:  Hunt & Hunt

Judgment Number: [2006] TASSC 62
Number of paragraphs: 148

Serial No 62/2006
File No FCA 103/2004

PAUL GREGORY MORTON
v STATE OF TASMANIA, DAVID BATCHLER

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  SLICER J
  TENNENT J
  29 August 2006

Orders of the Court

Appeal dismissed.
Serial No 62/2006
File No FCA 103/2004

PAUL GREGORY MORTON
v STATE OF TASMANIA, DAVID BATCHLER

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
  SLICER J
  TENNENT J
  29 August 2006

When this appeal was heard, the only respondent was the State of Tasmania. After the preparation of these reasons there was a successful application at first instance to correct the formal judgment to add the name of the second defendant, David Batchler.

There has now been an unopposed application to amend the notice of appeal to include Mr Batchler as a respondent which has been ordered.

We are of the view that these applications have not impacted in any substantive way on the attached reasons and would dismiss the appeal.

File No FCA 103/2004

PAUL GREGORY MORTON
v STATE OF TASMANIA, DAVID BATCHLER

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  29 August 2006

The appellant sued the respondent for damages for negligence arising out of an accident at sea on 2 November 1983. A jury rejected the appellant's claim and judgment was entered for the respondent. The appellant appealed.

On the afternoon of 2 November 1983 the appellant was on his safely anchored fishing vessel, the Donna Maris, at Crowe's Beach, halfway along the southern coast of Cape Barren Island, when he received two radio calls from the respondent's employee or agent on the fishing patrol vessel, the D'Entrecasteaux, to the east of his position. Unknown to the appellant, the crew of the D'Entrecasteaux had been unable to start its engine because of battery failure. The D'Entrecasteaux was on a well-known mooring, and one known to the appellant, that was close to the shore of Preservation Island, which is off the southern coast of Cape Barren Island. The mooring was the only one in the general area. Preservation Island has an elongated shape in a north-west to south-east direction, that is to say its two long sides face the north-east and the south-west respectively. There is a northern tip or point, but it cannot be appropriately described as having a northern side. The D'Entrecasteaux was moored approximately midway along the north-east facing side of the island. At the time, the wind was blowing from the west or north-west and the island provided adequate shelter from that wind for the D'Entrecasteaux.

It was the appellant's case at the trial that in the course of the two radio calls the respondent's employee or agent, Mr Batchler, identified himself as being in charge of the D'Entrecasteaux (he was not) and stated to the appellant that the vessel and its crew were in trouble, that the crew was unable to start its engine, that they were anchored (not moored) only 50 feet from the shore of Preservation Island on its northern side, that they were in imminent danger of dragging ashore, and that they required urgent assistance. On the appellant's case, the statements that the vessel was anchored, that its position was on the northern side of Preservation Island (rather than halfway along its north-eastern side), that it was in imminent danger of being dragged ashore and that urgent assistance was required, were all false to the knowledge of Mr Batchler. The appellant responded to the apparent emergency, according to his evidence, by raising his anchor and motoring into the wind to the aid of the D'Entrecasteaux and its crew, who were about two hours travel away. He believed that the effect of what he had been told was that the D'Entrecasteaux was anchored off the northern tip of Preservation Island, exposed to the wind and in imminent danger of being washed onto the nearby rocky shore he knew was there. However, that was not the case and the preponderance of evidence, including the evidence of the appellant, was that although the engines could not be started, the D'Entrecasteaux and its crew were not imperilled at the relevant time.

Using a battery from the Donna Maris, the engine of the D'Entrecasteaux was started. The appellant then decided to return to Crowe's Beach, from where he had come and near where he had set his crayfish pots. He left on a return journey possibly three quarters of an hour after reaching the D'Entrecasteaux. The appellant's evidence was that the weather was moderate and he expected to have a comfortable trip. However, about a third of the way into the journey, when abeam of Battery Island, the wind, which was a following one, freshened to almost gale force, he said. He was at the helm, outside the wheelhouse, when the vessel came off the back of a wave and another wave broke over its stern, causing the vessel to broach. Damage was caused to the vessel and the appellant was washed along the deck and suffered injuries.

At the trial, the principal case for the appellant was that despite the fact that the D'Entrecasteaux was not in imminent danger requiring urgent assistance, Mr Batchler negligently told the appellant that the vessel and the crew were in imminent danger and required urgent assistance. In his closing address to the jury, counsel for the appellant concentrated almost entirely on that aspect of the appellant's claim. Central to its determination was the factual dispute concerning what Mr Batchler said to the appellant in the radio calls. The respondent's case was that there was no suggestion of an emergency or imminent danger in what was said by Mr Batchler, whose evidence was that he said that the D'Entrecasteaux was on the mooring at Preservation Island and that they were having trouble starting its engine because the battery was down, to which the appellant replied that he would come. The respondent's case was that the appellant was a mere volunteer and not a rescuer.

The appellant's alternative case at the trial was that by negligently failing to properly maintain the D'Entrecasteaux, failing to ensure it was equipped with an engine and associated equipment in good working order and failing to properly instruct the crew in the repair and maintenance of the engine, the respondent's employees or agents caused the vessel and its crew to be endangered, and as a result the appellant went to its assistance, his vessel was damaged and he was injured.

Grounds 1 and 2

These grounds of appeal are:

"1        The learned trial judge erred in that he:
(a)directed the jury that the duty of care to take reasonable care for the defendants' own safety related ... 'to a risk of injury or damage as a result of giving assistance in an emergency, or responding to a call for emergency assistance';
(b)failed to direct the jury properly or at all in relation to the relevant duty of care as it related to the plaintiff's principal case;
(c)failed to direct the jury:
(i)     that the duty of care, as it related to the plaintiff's principal case against the defendants, required them not to unnecessarily or unreasonably call for assistance in terms as would make it foreseeable that the master of another vessel would respond in circumstances which would expose the crew to a risk of injury;
(ii)    that the duty extended to intentional or careless calls for assistance.

2The learned trial judge failed to direct the jury that on either version of the radio calls, it was reasonably foreseeable that the plaintiff would render assistance."

It is convenient to consider first ground 1(c)(ii) that concerns the failure of the learned trial judge to direct the jury that the relevant duty extended to "careless calls" for assistance rather than intentional calls for assistance. It was the appellant's principal case at the trial that Mr Batchler, with the connivance of at least the master of the D'Entrecasteaux, Mr Richardson, deliberately communicated false information to the appellant in the radio calls for the purpose of inducing him to believe that the D'Entrecasteaux and its crew were in danger and in need of rescue. In that regard, the only case pleaded in the statement of claim, par11, was that Mr Batchler "told the plaintiff that 'the vessel' and crew were in imminent danger and required assistance when they did not". It was never the appellant's case in the pleading or at the trial, including in the closing address to the jury of the respondent's counsel, that Mr Batchler's communication of an emergency was other than deliberate. Further, the appellant's counsel at the trial expressly disavowed any reliance on carelessly made statements leading to a misunderstanding as opposed to deliberately expressed misrepresentations. The jury raised the question in the course of its deliberations by asking, for the purpose of negligence being established, "Do we have to believe that in all probability Mr Batchler misled Mr Morton or is it enough that there is a probability that Mr Morton legitimately misunderstood what Mr Batchler said?" Although the question was not altogether clear, the point in issue was made clear by what followed. To counsel, the learned judge expressed the view that par11 of the statement of claim did not extend to a misunderstanding, which counsel for the respondent submitted to be the case and to which counsel for the appellant agreed. The learned judge then explained to the jury that the issues to be determined were defined by the pleadings and directed that as a consequence there was no allegation of negligence based on Mr Batchler not making clear what he was saying, thereby resulting in a misunderstanding by the appellant. His Honour instructed the jury, in the terms of par11, that "you can only find that there was a breach of duty or negligence on the basis that Mr Batchler told Mr Morton that the D'Entrecasteaux and the crew were in imminent danger and required urgent assistance or words to that effect when that wasn't the position".

Counsel for the appellant submitted that the terms of par11 were wide enough to encompass carelessly misleading statements, that is to say carelessly expressed words leading to a misunderstanding, in addition to deliberately misleading statements, that carelessly misleading statements were open on the evidence and that the learned judge was ordinarily bound to leave to the jury any position reasonably open on the evidence, relying for that last point on Wright v Galloway [1967] 1 NSWR 176 at 179. However, that case is clearly distinguishable because what the Court of Appeal determined was that a trial judge had been correct in leaving an alternative view of the facts for the jury's consideration as a basis for liability, on being asked to do so by the plaintiff in that case. In this case, not only did the appellant not seek the direction, his counsel disavowed any desire to rely on it, and the statement of claim did not set the basis for it.

What the appellant seeks is an order that there be a new trial. The determination of that question is dictated by the Supreme Court Civil Procedure Act 1932, s50(1)(a), which prohibits the ordering of a new trial because the trial judge failed to direct the jury on any question or matter which the judge was not asked to direct the jury on, unless some substantial wrong or miscarriage of justice was thereby caused. Although the Court has a general discretion and is able in a proper case, in the interests of justice, to relax the requirement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it, and if that is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will not be ordered. General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234 at 242 – 245, 257, 260, 263. There is even more reason to apply that general rule in a case where not only was there a failure at the trial to criticise the summing up and to seek a further direction, but counsel for the appellant made it clear that the relevant point was not sought to be advanced as an issue for determination and the statement of claim did not raise it as a basis for the claim. It would amount to a miscarriage of justice to grant to the appellant a new trial in the circumstances. For all these reasons, ground 1(c)(ii) must fail, together with ground 2 insofar as it applies to the issue of "careless calls for assistance".

The learned judge provided the jury with a printed memorandum that summarised his Honour's directions and he spoke in detail to it. Ground 1(a) of the appeal particularly attacks a theme in the directions that was initiated by par2 of the memorandum. By par1 the jury were correctly instructed that the Fisheries Development Authority, and its employees and agents, including Mr Batchler, owed the appellant and other seafarers a duty to take reasonable care for their safety, and for the safety of their property. Paragraph 2 stated: "That duty required them to take reasonable steps to avoid a risk of injury or damage resulting from the master of another vessel and his property being exposed to a risk of injury or damage as a result of giving assistance in an emergency, or responding to a call for emergency assistance" (my italics). Ground 1(a) of the appeal attacks the use of the word "emergency" and the expression "a call for emergency assistance". The reference to giving assistance in an emergency was to giving assistance in a situation where there was, in fact, an emergency. That was part of the appellant's alternative basis for claim at the trial. In the statement of claim, it was expressed in par10 in terms that "the plaintiff's injuries, loss and damage were caused by the negligence of the defendants in endangering themselves" by (inter alia) failing to properly maintain the vessel. The reference to "responding to a call for emergency assistance" was to the appellant's principal basis for claim at the trial that he responded to a request from Mr Batchler to provide assistance because an emergency existed, whereas in truth there was no emergency at all, as Mr Batchler well knew. In the statement of claim, it was expressed in par11 in terms that "if 'the vessel' was not in imminent danger requiring urgent assistance by virtue of difficulties in starting the engine and/or its position at anchor or otherwise, the plaintiff's injuries loss and damage were caused by the negligence of the defendants ... in that the second defendant [Mr Batchler] told the plaintiff that 'the vessel' and crew were in imminent danger and required urgent assistance when they did not".

It was submitted by counsel for the appellant that the instruction to the jury that the respondent's employees and agents owed a duty to take reasonable steps to avoid a risk of injury or damage resulting from the master of another vessel and his property being exposed to injury to damage as a result of giving assistance in an emergency, or responding to a call for emergency assistance, was liable to mislead the jury and required it to embark on an unnecessary and inappropriate task. It was submitted that the reference to the label of "emergency" without further and adequate explanation, created a real risk that the jury would attribute the wrong significance to the word. Instead, the jury should have been directed, it was submitted, that there were two essential questions, namely whether Mr Batchler's radio call was in terms that made it reasonably foreseeable that a "rescue" would occur with a risk of injury to the "rescuer", and whether it was unreasonable to make a call in those terms in the circumstances which existed. A fallacy in the submission is that the suggested need to explain "emergency" would be replaced by the need to explain "rescue" and "rescuer".

The direction referring to an emergency and a call for emergency assistance came about in the following circumstances. The learned trial judge's draft memorandum for the jury stated in par2 that "the duty [to take reasonable care] required them to take reasonable steps to avoid a risk of injury or damage resulting from the master of another vessel and his property being exposed to a risk of injury or damage as a result of giving assistance to the D'Entrecasteaux in rough weather". (My italics). Counsel for the respondent submitted that the proposed direction was erroneous because it is not the law that the giving of any assistance gives rise to the duty or allows recovery for breach. What the law recognises is that a person who, by negligence, creates a situation that imperils himself or another, can be held liable to a person who suffers injury or loss in coming to the rescue. As is stated in the Law of Torts in Australia by Trindade and Cane 3^rd ed at 435, "the duty to the rescuer ... is based on the foreseeability that if a danger is created, someone is likely to come to the rescue. Baker v T E Hopkins & Son Ltd [1959] 3 All ER 225, 241 – 242 per Willmer LJ; Haynes v G Harwood & Son [1935] 1 KB 146, 156 per Greer LJ."

When dealing with par2 of the draft memorandum for the jury, counsel for the respondent referred to the Law of Torts by Fleming 9^th ed at 188, where it is said that "to be a 'rescuer', he must have acted in emergency". The learned trial judge then raised for consideration whether par2 should be amended by replacing the words I italicised, "as a result of giving assistance to the D'Entrecasteaux in rough weather", with "as a result of giving assistance in an emergency or responding to a call for emergency assistance". Counsel for all parties were content with that amendment and in particular, counsel for the appellant stated "I'm happy with the amendments that you actually made ... the amendment as suggested I'm happy with". As a result, par2 was amended accordingly before it went to the jury.

It is now the appellant's argument, through a different counsel than the two counsel he had at the trial, that the reference to an "emergency" and to "responding to a call for emergency assistance", without further explanation, created a real risk that the jury would attribute a significance to the word and to the expression that was greater than, or different to, what was properly the case. In particular, it was submitted that the jury may have taken the view that notwithstanding that Mr Batchler had deliberately overstated the danger the D'Entrecasteaux and its crew were in with the knowledge or expectation that the appellant would respond, nevertheless the statements did not qualify as a call for emergency assistance. It was further submitted that the requirement for "a call for emergency assistance" posed too high a test, or at least, an inappropriate one and that the jury should have been directed to determine whether the radio calls were in terms that made it foreseeable that the appellant would respond and in doing so would be exposed to a risk of injury. However, counsel accepted that he would have had no complaint if the learned judge had explained to the jury that the respondent had to avoid making an unnecessary or unreasonable call in terms that the D'Entrecasteaux and its crew urgently needed assistance. Counsel accepted that if the learned judge had replaced "a call for emergency assistance" with "a call for urgent assistance", there would have been no error.

Much of the relevant parts of the summing up are contained in the reasons for judgment of Slicer J. The learned trial judge explained to the jury that it could only find that there was a breach of duty "on the basis that Mr Batchler told Mr Morton that the D'Entrecasteaux and the crew were in imminent danger and required urgent assistance or words to that effect when that wasn't the position". It is apparent, therefore, that his Honour used the expression with which the appellant's present counsel has no cavil. When asked by the jury to clarify the meaning of an emergency, the learned judge explained it by instructions that included examples. He made it clear to the jury that the relevant issue was whether Mr Batchler told the appellant that the D'Entrecasteaux and its crew were in imminent danger and required urgent assistance when they did not. His Honour concluded: "Perhaps it's a matter of the degree of danger that the caller indicates exists where the caller is. It's a question of degree for the jury to decide whether the danger suggested is an emergency or whether the need for assistance falls short – that's been described – falls short of an emergency situation." The learned judge then asked counsel whether they wished to make any submissions about that, and they did not.

There is no merit of any substance in the appellant's argument. The directions were adequate. No substantial wrong or miscarriage of justice has been demonstrated.

Concerning grounds 1(c)(i) and (ii), it is sufficient to observe that foreseeability of harm was not an issue at the trial on the question of the duty of care. It was common ground on the appellant's principal case that in the event of it being found that Mr Batchler told the appellant what the appellant claimed, the duty of care existed as a duty owed to a person rendering assistance to someone who wilfully and negligently invited his own rescue. Equally, on the appellant's alternative case, foreseeability was not an issue with regard to whether a duty of care existed. Foreseeability was only an issue concerning breach of duty and the directions in that regard were adequate. No further direction was sought by the appellant in relation to foreseeability and the duty of care and once again, these grounds fail because there was no substantial wrong or miscarriage of justice.

Ground 3

The ground is:

"3The learned trial judge failed to direct the jury that in relation to the plaintiff's secondary case, it was open to find for the plaintiff if it was satisfied:
(a)that the defendants were negligent in maintaining the D'Entrecasteaux;
(b)that as a consequence the D'Entrecasteaux was in actual danger or was perceived as being in potential danger, to the extent that;
(c)the defendants called for assistance;
(d)when it was reasonably foreseeable that the plaintiff would respond and expose himself to a foreseeable risk of injury."

In the statement of claim, the appellant's secondary case at the trial was pleaded as its primary case in par10 as follows: "The plaintiff's injuries, loss and damage were caused by the negligence of the defendants in endangering themselves." Particulars of negligence were provided. They included negligence in maintaining the vessel. The learned judge directed the jury accordingly, leaving for its consideration (inter alia) the question whether the D'Entrecasteaux was in danger and, if so, whether the negligence of the respondent, its employees or agents brought that state of affairs about.

For the appellant it was submitted that the learned judge erred when he restricted the jury's consideration to a determination of whether or not the D'Entrecasteaux and its crew were in danger as a result of negligence and that the question whether the crew perceived themselves as being in danger as a result of negligence should also have been left for consideration. There are a number of reasons why the submission has no merit. It was not the appellant's case at the trial that he could recover because of a negligently induced perception of the crew that they were endangered. It was not pleaded in the statement of claim. Counsel for the appellant did not suggest it in his closing address to the jury. No submission was made to the learned trial judge that he should include in his summing up a direction concerning such a route to recovery and no wrong or miscarriage of justice has resulted. Accordingly, the ground fails.

Ground 4

Ground 4 is:

"The learned trial judge failed to adequately explain to the jury how the law relating to duty and breach of duty applied to the facts of the case."

In support of the ground, counsel for the appellant referred to the obligations of a trial judge as stated in Alford v Magee (1952) 85 CLR 437 at 466. In summary, it is the duty of the judge to explain to the jury in general terms the law relevant to the real issues in the case, with reference to the facts of the case and with an explanation of how that law applies to the facts.

In addition to the appellant's complaints that were made under the first three grounds of appeal, his counsel complained that the learned judge failed to comply with that duty when directing the jury about the requirement of a breach of duty.

Paragraphs 4, 5 and 6 of the memorandum dealt with breach of duty in the following terms:

"4The Authority, its employees or agents (including Mr Batchler), breached the duty of care if any of them did something that reasonable people in their position would have refrained from doing in order to avoid a risk of injury or damage being suffered by the master of another vessel.
5The Authority, its employees or agents (including Mr Batchler), breached the duty of care if any of them omitted to do anything that reasonable people in their position would have done to eliminate or reduce a risk of injury or damage being suffered by the master of another vessel.
6In deciding what a reasonable person, or reasonable people, would have done or refrained from doing in order to avoid, eliminate or reduce a risk of injury or damage, it is necessary to consider:
(a)       the seriousness of the risk;
(b)       the likelihood of injury or damage occurring;
(c)       the expense, difficulty and inconvenience of taking alleviating action;
(d)       any conflicting responsibilities."

It was submitted for the appellant that the learned judge was required, but failed, to identify the particular acts or omissions said to constitute the breach in both the principal and alternative cases, relate the considerations set out in par6 of the memorandum to each of the negligent acts and omissions and explain how the jury might approach a determination of those considerations. It was further submitted that by the end of the directions concerning pars4, 5 and 6 the jury would have been confused as to their task and how to approach it.

Concerning the appellant's principal case that there was a breach of a duty of care because of the content of what was said by Mr Batchler in the radio calls, there was no error of significance in the summing up. The learned judge read out pars4, 5 and 6 of the memorandum, having explained that they contained a number of principles the jury needed to bear in mind when considering whether there was a breach of the duty of care. His Honour explained that par4 was about negligent acts and that the primary case put forward by the appellant was that a negligent act was to be found in Mr Batchler's alleged radio calls for emergency assistance, particularly because, if the appellant's evidence was to be believed, Mr Batchler told him that the D'Entrecasteaux and its crew were in imminent danger and required urgent assistance when in truth, they did not. The learned judge reminded the jury of the appellant's evidence of what he was told by Mr Batchler and of his consequent belief that the D'Entrecasteaux was unlikely to survive for an hour and that survival for two hours would probably have been a miracle. Having summarised the respective cases on the issue of breach, the learned judge explained that "the primary question I'd suggest that you need to consider is whether you are satisfied on the balance of probabilities that Mr Batchler breached the duty of care by what he said in the two radio calls". His Honour posed the question: "Did Mr Batchler or anyone else do something that a reasonable person in his position would have refrained from doing in order to avoid a risk of injury or damage being suffered by Mr Morton?"

The learned judge then returned specifically to the matters raised by par6 of the memorandum which had been uplifted from the well-known judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, relating them to the facts of the case.

In relation to the appellant's alternative case, based on a negligent creation of danger, largely by omission, such as a failure to properly maintain the D'Entrecasteaux and its equipment, the learned judge first reminded the jury of the little evidence there was that the vessel was in fact endangered. He then instructed the jury that it was a matter for it to decide whether the crew had endangered themselves, or whether the Fisheries Development Authority and its agents had endangered the D'Entrecasteaux and its crew by failing to maintain the vessel properly, failing to ensure that it was equipped with an engine and associated equipment in good working order, failing to instruct the crew properly or at all in relation to the repair and maintenance of the engine and allowing the engine and associated equipment to be in such a state that the engine could not be started at sea. The learned judge then directed the jury that it was open to it to decide that there was a breach of duty as a result of the D'Entrecasteaux and its crew putting to sea in that situation and by the crew endangering themselves by going where they did with a vessel in that state.

An error was made by the learned judge when he then summarised what he had said with "it is open to you to make a finding of negligent acts on that basis", when most of the alleged breaches were based on negligent omissions rather than negligent acts, but the error was insignificant and the jury would not have been misled concerning its task. His Honour then dealt with the matters in par6 of the memorandum by relating them to the facts of the alternative case.

During the course of its deliberations, the jury asked: "In relation to the possible finding of the jury that the State of Tasmania has breached the duty of care in relation to seaworthiness of the boat, could you please restate the path of logic that we must come to, to establish the State was negligent to Mr Morton?" The learned judge did so at length, referring to evidence and principle, this time referring to failures rather than acts as the possible basis for a finding that there was a breach of the duty of care. His Honour then asked counsel whether they had any submissions concerning what he had just said and counsel for the appellant said that he had none.

Having regard to those aspects of the summing up, indeed to all of it in the context of the pleadings, the evidence and the closing addresses of counsel, no error of substance occurred in the directions relating to the breach of the duty of care. Counsel for the appellant did not seek to have any minor errors corrected by further directions or explanations. No injustice to the appellant resulted. Accordingly, ground 4 fails.

Ground 5

The ground is:

"The learned trial judge failed to properly direct the jury as to the standard of proof."

The learned judge had much to say about the standard of proof and it is not a valid process to select only two or three passages in search for fault, as was done by counsel for the appellant. What the jury would have known concerning the standard of proof can only be understood in the context of all of the relevant passages in the summing up and the closing addresses of counsel. Jones v Dunkel (1959) 101 CLR 298 at 314.

In his closing address, counsel for the appellant argued to the jury that one of their functions was to see whether the appellant had "established to you, on the balance of probabilities, what's more probable than not. Is it more probable than not that he was called out to a rescue in an emergency put to him." Later he said: "This is a civil case where the level to which we have to prove our case is what's called 'the balance of probabilities'. ... This is a case, where you have to say what's more probable than not. Am I satisfied that it's more probable, on the balance, that Paul Morton is telling us the truth and we accept him as a man of the truth or not." By saying that, counsel was making it clear with regard to the appellant's principal case, that the main question was whether the jury accepted, on the balance of probabilities, the appellant's version of the radio calls.

The learned trial judge made many references to the standard of proof in his summing up. He first explained that for the respondent to be liable to pay damages to the appellant, the jury had to be satisfied, on the balance of probabilities, of each of three things:

(a)that the Fisheries Development Authority, or one or more of its employees or agents, breached the duty of care;
(b)that the appellant suffered an injury and/or damage to his property; and
(c)that the injury and/or damage was suffered as a result of the breach of duty.

His Honour repeated that the jury had to be satisfied on the balance of probabilities of each of those matters. He explained:
"The balance of probabilities refers to the idea of something being more likely correct than not correct and of course both counsel have said to you, my client's version of events is more likely to be correct than my opponent's version of events but it's not just a question of these mere mechanical comparison of probabilities, it's not just a question of whether one scenario is more likely to be correct than another. In order for you to make a finding against the State of Tasmania, you need to be affirmatively satisfied on the balance of probabilities that a certain series of facts is correct. So, it's not just a question of what's more likely. It's a question of whether you're satisfied on the balance of probabilities of a certain series of conclusions."

On its own, that passage is open to be criticised, as it was by the appellant's counsel. However, the learned judge explained what he meant. He directed the jury that the first of those matters to consider was whether there was a breach of the duty of care. "The question is, whether you're satisfied on the balance of probabilities that the Fisheries Development Authority or one or more of its employees or agents breached the duty of care", he said. After explaining pars4, 5 and 6 of the memorandum, and relating them to the respective positions of the parties so far as concerned the appellant's principal case at the trial, the learned judge said: "The primary question I'd suggest that you need to consider is whether you are satisfied on the balance of probabilities that Mr Batchler breached the duty of care by what he said in the two radio calls."

The jury was directed that concerning the essential matters for a finding of liability in par3 of the memorandum, that is breach, damage and causation, it needed to be satisfied of each on the balance of probabilities, and he explained that. When dealing with causation, the jury was directed: "What you need to consider is whether you're satisfied on the balance of probabilities that Mr Morton's injury and the damage to his boat was suffered as a result of a breach of duty." When dealing with foreseeability of damage, the learned judge directed the jury to consider whether it was satisfied on the balance of probabilities that the appellant's injuries and the damage to his boat were reasonably foreseeable consequences of a breach of duty. He explained that further with more references to the need to be satisfied on the balance of probabilities. When dealing with voluntary assumption of the risk, the learned judge explained to the jury that the respondent bore the burden of satisfying the jury on the balance of probabilities.

Later in the summing up, his Honour reiterated the respective cases of the parties on all issues and explained once again what matters the appellant needed to establish on the balance of probabilities and what matters the respondent needed to establish on the balance of probabilities, and what result would follow if such matters were or were not established on the balance of probabilities.

The jury could have been left in no doubt concerning what had to be proved on the balance of probabilities and by whom, and when all of the summing up is considered there was nothing inadequate about the directions concerning the standard of proof and the requirement that the jury consider whether it was affirmatively satisfied of essential facts on the balance of probabilities.

Counsel for the appellant submitted that the learned judge should have explained to the jury that proof of the essential facts that the appellant had the burden of proving could be achieved notwithstanding that the appellant's version in his evidence of the events was not accepted, relying on Goodwin v The Nominal Defendant (1979) 54 ALJR 84 at 86. However, that case is not authority for the proposition that such a direction must be given in every case. In relation to the appellant's principal case, if his version of the radio calls was not accepted, his case failed, and a direction that he could succeed notwithstanding that his version was not accepted would have been misleading. In relation to the appellant's alternative case, the appellant's evidence was that the D'Entrecasteaux was not endangered and in need of rescue and if that was so, his case failed. The only evidence of a version of the events that was contrary to the appellant's evidence and which, if accepted, could have led to the appellant succeeding on his alternative case, was evidence of what Mr Batchler had written in a report. The learned judge reminded the jury of that evidence and directed that it was open for the jury to decide that the crew of the D'Entrecasteaux had endangered themselves or the Fisheries Development Authority and its agents had endangered the vessel, notwithstanding the appellant's version in evidence that the vessel was quite safe. The direction was adequate and no further direction was requested by the appellant's counsel.

For these reasons, the ground fails.

Ground 6

The ground is:

"The learned trial judge erred in failing to properly direct the jury as to the issue of factual causation."

Counsel for the appellant took no issue with the parts of the written memorandum to the jury that dealt with the issue of causation. However, he pointed to parts of the oral directions of the learned judge and submitted that they were either inadequate or misleading. Although it is arguable that, on their own, those parts could be described in that way, overall the summing up was adequate in its treatment of causation and I concur with what is said by Slicer J.

In particular, I do not accept the submission of counsel for the appellant that in the course of the directions concerning causation, it was necessary to explain the meaning and permissible use of the "common sense" approach and the "but for" test. That was unnecessary and directions of that kind would have required considerable technical and legal instruction beyond the capacity for understanding of most members of a jury.

In Fitzgerald v Penn (1954) 91 CLR 268 at 277, Dixon CJ, Fullagar and Kitto JJ gave the following warning against detailed and technical directions to a jury on the issue of causation:

"The truth is, we think, that it is a mistake to attempt either to explain 'causation' as a general conception to a jury or to define for them a degree of closeness which must subsist in the connection between wrongdoing and damage. To begin with, it is not really necessary, because a jury is to be expected to have a sound common sense idea of what is meant by saying that one fact is a cause of another, and, as was said in Gay's Case (1951) VLR 104 itself, it is all ultimately a matter of common sense: the expression 'common sense' is used twice in the passage under discussion. A jury probably does not need to be told that the absence of a tail light could not operate to cause a head-on collision even at night, though such an example might provide for them an illustration in some cases, where a real question of causation was likely to arise. But it is not merely unnecessary, in our opinion, to direct a jury as to closeness of connection between negligence and damage. It seems to us to create a risk of confusion. If one is once to enter on a philosophic examination of the meaning of 'cause and effect', there is no telling where one ought to stop."

As with all other grounds, the observation must be made that counsel for the appellant took no point at the trial concerning the directions. The ground must fail.

Ground 7

Ground 7 is:

"The learned trial judge erred in law in leaving to the jury the defence of voluntary assumption of risk."

The respondent pleaded in its defence that if the weather was extreme and the seas rough (which was denied) when the appellant commenced his return journey, he exposed himself to a risk of injury and damage by sailing from the protection of, or under the lee of, Preservation Island, instead of remaining under its lee, that he knew that the weather and seas were too severe for him to sail in safety and that, with full knowledge of the risk of injury or damage, he voluntarily consented to accept that risk by commencing the return journey. At the trial the appellant did not object to the respondent relying on that defence and the learned judge left it to the jury for its consideration.

The jury was instructed that the appellant was not entitled to recover damages if it was satisfied on the balance of probabilities that when he set out to return from Preservation Island to Crowe's Bay, the weather conditions were so bad that it was dangerous to embark upon that journey, that at the time he set out he knew and fully appreciated the danger of embarking upon his return journey at that time, and he voluntarily and freely accepted the risk of being injured and suffering damage to his vessel on the return journey. No criticism is made by the appellant of the terms in which the learned judge instructed the jury. The ground of appeal only attacks the leaving of the defence for the jury's consideration.

The appellant relies on Haynes v G Harwood & Son [1935] 1 KB 146 and Ward v T E Hopkins & Son Ltd [1959] 3 All ER 225. They are authorities for the proposition that where a plaintiff has, under an exigency caused by a defendant's wrongful misconduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, and the plaintiff has thereby suffered injury, the defence of voluntary assumption of the risk is not available to the defendant. The basis for the denial of the defence is that because a rescuer acts under the impulse of a duty, whether it be legal, moral or social, he or she does not exercise freedom of choice and therefore is not a volunteer.

In this case, the rescue situation, if there ever was one in the true sense, was over at the time that the appellant decided to set off from Preservation Island on his return journey. He was no longer acting in a rescue situation. For these reasons the ground must fail.

Grounds 8 and 9

These grounds are:

"8The learned trial judge erred in directing the jury that it was not compelled to accept unchallenged evidence as true, without informing them:
(a)that if a witness was not cross-examined on a particular matter, that was a good reason for accepting that witness' evidence, particularly if it was uncontradicted by other evidence;
(b)that it would usually be unfair to reject evidence on which there had been no cross-examination.

9The learned trial judge erred in that he failed to direct the jury as to the effect of:
(a)the failure to cross-examine the witness RJ Slater had on whether it might be satisfied on the balance of probabilities that the plaintiff's version of the radio calls was correct; and
(b)the failure to directly challenge the plaintiff on the issue of the D'Entrecasteaux's dinghy."

Both grounds were related by counsel for the appellant to evidence concerning a dinghy from the D'Entrecasteaux. The appellant's evidence was that the Donna Maris was proceeding west and approaching the northern point of Preservation Island, which he claimed was where Mr Batchler had told him was the position of the D'Entrecasteaux, when his deck-hand, Mr Slater, spotted about half a mile away a dinghy containing a young male aged about 17 or 18. It turned out that it had come from the D'Entrecasteaux. The appellant said that its position was slightly to the south-west or south of the Donna Maris and he described it as "surfing down the waves". He said that its occupant "seemed to be using it as a surfboard". He asked the occupant where the D'Entrecasteaux was and the occupant pointed towards where it was anchored in House Bay off Preservation Island. The appellant's evidence was that because of the position and colour of the D'Entrecasteaux, and its background, they had been unable to see it. He followed the dinghy to it. In cross-examination he accepted that the dinghy would naturally surf down the waves if the waves were following it. He also said that when it was first seen, the dinghy pulled round towards the Donna Maris and both the dinghy and the vessel then proceeded towards each other. When they came together he asked "where are the others", and the occupant of the dinghy pointed towards the D'Entrecasteaux. He claimed to be concerned for the safety of the man in the dinghy and to have followed it partly in case of anything happening to him. Counsel for the respondent challenged the appellant about that aspect of his evidence in cross-examination.

Mr Slater's evidence was that he could not remember the weather conditions while they were proceeding west in that area. He said "I seen a dinghy pop up out of the water". It was coming from the direction of Preservation Island. He did not think it was going anywhere in particular. He said that the man in the dinghy led them to the D'Entrecasteaux, which was in an entirely different direction than the one in which they had been heading. He could not remember talking to the man in the dinghy. Mr Slater was not cross-examined.

The three occupants of the D'Entrecasteaux gave evidence. One was a fisheries inspector, Robert McIntyre. In his evidence-in-chief he was asked nothing concerning the dinghy. In cross-examination it was put to him that he was the man in the dinghy. His evidence was that he did not know if he was. He said that he may have gone ashore on Preservation Island that morning and had a look around. He was not instructed by Mr Batchler or Mr Richardson to go out in the dinghy and find the Donna Maris and he had no recollection of running into it in the dinghy. He accepted the possibility that he was out in the dinghy but he doubted it because power was needed to haul the dinghy back onto the D'Entrecasteaux, which had no power because of the battery failure. Pressed with the suggestion that he had to go out and bring the Donna Maris in because it had been directed to the wrong position, he said "I can't recall that but stranger things have happened", adding that he did not think that the dinghy was in fact put over the side of the D'Entrecasteaux. At least some of the apparent difficulty of Mr McIntyre, and the other crew members of the D'Entrecasteaux, not being clear about the matter can be accounted for by the fact that they were giving evidence of events that took place 21 years earlier.

Mr Richardson was the master of the D'Entrecasteaux. He gave no evidence-in-chief concerning the dinghy. In cross-examination he said that he had no recollection of Mr McIntyre leading the Donna Maris to the D'Entrecasteaux, nor of him being out in the dinghy at that time. He said that he had a memory of watching the Donna Maris steaming towards him but no recollection of the dinghy leading it in or near it. He said that although he often allowed officers to use the dinghy to go ashore or to go fishing, "they were never allowed to go steaming around in a dinghy".

The third occupant of the D'Entrecasteaux, Mr Batchler, also gave no evidence-in-chief concerning the dinghy. When asked about it in cross-examination, he said he had no recollection of Mr McIntyre being out in it but accepted the possibility that "he may well have gone out in the dinghy for some reason or other".

It was the appellant's case at the trial that there was a conspiracy between the members of the crew of the D'Entrecasteaux to deliberately mislead the appellant into believing that the D'Entrecasteaux was imperilled near rocks off the northern tip of the island and that in the course of executing the purpose of that conspiracy, they found it necessary for Mr McIntyre to use the dinghy to intercept the Donna Maris on its incorrect course and show it the way to the D'Entrecasteaux. In his closing address, counsel for the respondent did not suggest that the jury should not find that the dinghy was out there, but he suggested that it was too bizarre a conspiracy theory to be accepted that experienced mariners, who were safely moored, would lie about their position and falsify a report of an emergency to have somebody bring them a battery. In response, counsel for the appellant argued that it was not bizarre. He pointed out to the jury that the appellant and Mr Slater were not challenged in cross-examination about their evidence that the dinghy had met them and led them to the D'Entrecasteaux.

At the outset of the summing up, the learned judge directed the jury that it was its responsibility to decide what facts were accepted as established, what facts were rejected as wrong or not established and what conclusions or inferences the jury was prepared to draw from the facts accepted as having been established. His Honour explained that it was the jury's role to decide what witnesses were honest and reliable, mistaken or evasive. He continued:

"Questions of honesty and reliability aren't all or nothing questions. A witness can be honest about one point and dishonest about another, accurate and reliable about another point but unreliable or vague or mistaken or inaccurate about another. You are not required to accept everything that anyone says or reject everything that anyone says. It's for you to determine if you can the true facts and very often the true facts are somewhere between two extremes that are presented to a court.
You are not compelled to accept unchallenged evidence as true, that is to say, if a witness said certain things in the witness box and it wasn't put to that witness that those things weren't correct, that doesn't mean that you're compelled to accept the unchallenged evidence as true. Sometimes it might be pretty obvious that it is true. For example, Mr Morton says that he was washed off his feet by a wave and hurt his knee and that doesn't seem to be seriously disputed but there might be other parts of the evidence where what someone's said hasn't been challenged and you're not compelled to accept every time in that situation that the unchallenged evidence is true and correct."

What the learned judge said was, of course, correct, but it was submitted by counsel for the appellant that the direction that the jury was not compelled to accept as true and correct all evidence that was not challenged was incomplete, and that the correct principles relating to unchallenged evidence are that if it is not inherently incredible or improbable it should be accepted and particularly so if it is supported or uncontradicted by other evidence, that it is usually unfair to reject unchallenged evidence and that there needs to be a reasonable explanation for its rejection.

Reliance was placed by counsel for the appellant on Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561, Hardy v Gillette [1976] VR 392 at 396 – 397 and Pankelis v Frankcombe unreported 5/1988 at 10 – 11. The principles asserted by counsel are indeed to be found in those cases. However, they were stated in the circumstances of findings of fact by a judge or magistrate where the question on appeal was whether a particular finding was or was not open. None of those cases are authority for what instructions must be given to a jury.

It was made clear by Samuels JA, with whom Meagher JA agreed, in Ellis v Wallsend District Hospital at 588, that it is not a rule of law that unchallenged evidence must be accepted. Whether a piece of evidence should be accepted is to be determined on the basis of all the evidence in the case that is relevant. That a piece of evidence was unchallenged may well be a compelling reason for accepting it in the circumstances of the case. The learned judge made that clear to the jury when he said that "sometimes it might be pretty obvious that it is true".

Counsel for the respondent, who was counsel at both the trial and at the hearing of the appeal, made the point that as none of the respondent's witnesses was able to state positively that the D'Entrecasteaux did not meet up with the dinghy, he could not put to the appellant or Mr Slater that it did not happen, and he did not suggest it to the jury. However, what the respondent strongly challenged at the trial was that the jury could infer from all of the evidence that there was a conspiracy to deceive between the crew members of the D'Entrecasteaux.

As there is no rule of law that unchallenged evidence must be accepted other than in specific circumstances, no error of law was made by the learned judge in what he said to the jury. The remaining question that is raised by the two grounds of appeal is whether a substantial wrong or miscarriage of justice arose because of the direction that was made and the failure of the learned judge to explain the matter further. As with the other grounds of appeal, it must be borne in mind that no criticism of the summing up was made by the appellant at the trial.

A miscarriage of justice has not been demonstrated. The jury were not invited by what was said by the respondent's counsel in his closing address, or by the learned judge in the summing up, to disbelieve the appellant and Mr Slater about the presence of the dinghy. There is no reason to think that the jury made a finding contrary to their evidence. What the learned judge directed the jury concerning unchallenged evidence was a general statement and an innocuous one.

For these reasons, the grounds fail.

Conclusion

Upon a consideration of the summing up as a whole, I am not persuaded that a substantial wrong or miscarriage of justice resulted from it, and particularly not because of the failure to criticise it at the trial.

The appeal should be dismissed.
File No FCA 103/2004

PAUL GREGORY MORTON
v STATE OF TASMANIA, DAVID BATCHLER

REASONS FOR JUDGMENT FULL COURT

SLICER J
29 August 2006

This appeal is against a jury verdict rejecting a claim for damages for personal injury arising from a mishap at sea following the response by the appellant to a request for assistance by the crew of another vessel operated by the respondent. The events giving rise to the claim occurred in the Furneaux Islands on 2 November 1983.

The appellant, the master of the fishing vessel the Donna Maris, was engaged in rock lobster fishing near Passage Island, south of Cape Barren Island. The second respondent operated a fishing patrol vessel, the D'Entrecasteaux, which had been on patrol along the north eastern coast of Tasmania and the eastern islands of Bass Strait.

The appellant's case was that on 2 November 1983, the D'Entrecasteaux was anchored on the northern side of Preservation Island, unable, because of battery failure, to start its engine and was at risk of grounding. The appellant had responded to a call for assistance, journeyed to the anchorage and assisted in the starting of the D'Entrecasteaux's engine. He had been injured on the return journey to his fishing ground and held the respondent liable for his injury and associated loss. The respondent's case was that the appellant's response was not to one of emergency and, even if a "rescuer", that his injury occurred during a return journey voluntarily undertaken and, as a secondary plea, that he was negligent in undertaking that journey.

The trial was by jury. This appeal concerns directions given by, or failure of the learned trial judge, to provide adequate directions to the jury. Some of the matters raised by the appellant on the hearing of this appeal traversed matters of fact which remained the province of the jury and the possibility that differing findings were open, ought not of itself show erroneous directions. Matters such as the timing and content of radio transmissions, position of vessels, weather and degree of danger, potential or actual, remained issues for the "fact finders", rather than matters to be revisited here.

Cases as pleaded

The appellant relevantly pleaded:

"4On or about 2 November 1983 ('the said date') the plaintiff was the master of his vessel the 'Donna Maris' which, in the course of fishing, was anchored in safe waters at Crowes Beach Cape Barren Island off Passage Island.
5Between approximately 3‑00 pm and 3‑15 pm on 'the said date', the second defendant on two occasions by radio told the plaintiff:
(a)that he and other crew of the D'Entrecasteaux were on board 'the vessel';
(b)that they were anchored on the northern side of Preservation Island;
(c)that they were unable to start 'the vessel's' engine;
(d)that they were in imminent danger of being dragged ashore;
(e)that they required urgent assistance.
6The plaintiff, having the reasonable belief that the crew of 'the vessel' were in imminent danger and required urgent assistance, took his vessel to their aid.
7As a result of the plaintiff's assistance and the use of a battery from the Donna Maris, the engine of 'the vessel' was started.
8In the circumstances as alleged, the defendants owed the plaintiff a duty of care in that they knew or ought to have known that by virtue of the extreme weather and the rough seas on which the Donna Maris was required to sail between the original respective positions of the vessels, the plaintiff exposed himself to a risk of personal injury.
9On the plaintiff's return sailing in rough seas from 'the vessel' to his previous anchorage, he suffered personal injury with consequent loss and loss and damage."

and specifically against the respondent:
"10The plaintiff's injuries, loss and damage were caused by the negligence of the defendants in endangering themselves.

Particulars of Negligence of the First Defendant
The Authority or its servants or agents, were negligent in that it or they:
(a)failed to properly maintain 'the vessel';
(b)failed to ensure that 'the vessel' was equipped with an engine and associated equipment in good working order;
(c)failed to instruct properly or at all the crew of 'the vessel' in the repair and maintenance of the engine;
(d)allowed the engine and associated equipment of 'the vessel' to be in such a state that it was unable to be started at sea;

(e)failed to provide 'the vessel' with sufficient anchor to hold its position at sea;
(f)failed to properly anchor 'the vessel';
(g)allowed 'the vessel' to drift too close to the shore.
11Further, and in the alternative, the plaintiff says that if 'the vessel' was not in imminent danger requiring urgent assistance by virtue of difficulties in starting the engine and/or its position at anchor or otherwise, the plaintiff's injuries loss and damage were caused by the negligence of the defendants as follows:

Particulars
The first defendant by the second defendant and the second defendant were negligent in that the second defendant told the plaintiff that 'the vessel' and crew were in imminent danger and required urgent assistance when they did not."

The respondent did not admit pars4, 7, 8 and 9, and denied the remainder. In addition, the respondent pleaded:

"12Further, or in the alternative the defendants say that if the plaintiff was injured as alleged (which is not admitted) and if the defendants were negligent as alleged (which is denied) the plaintiff's injuries were caused or contributed to by the plaintiff's own negligence.
Particulars
The plaintiff was negligent in that:-
(a)   if the weather was extreme and the seas rough (which is denied), he exposed himself to risk of injury by sailing from the protection of, or under the lee of, Preservation Island;
(b)   if the weather was extreme and the seas rough (which is denied), he commenced his return journey when he ought to have remained under the lee of Preservation Island;
(c)   if the weather was extreme and the seas rough (which is denied), he failed to take shelter in the lee of Preservation Island; and
(d)   commenced his return journey when he knew or ought to have known that the weather and seas were too severe for him to sail in safety.
(Further particulars to be supplied)
13Further, or in the alternative the defendant's [sic] say that with full knowledge of the risk of injury or damage to himself by the acts referred to in paragraph 9 of the amended statement of claim, the plaintiff voluntarily consented to accept the risk by commencing his return journey."

At trial the appellant had put his case on the primary basis that the respondent was negligent in an unnecessary or unwarranted call for assistance thereby exposing the appellant to a risk of injury. In the alternative, he relied on a negligent failure to maintain the D'Entrecasteaux in good working order, exposing him to the risk of injury. In support of the primary contention, the appellant relied on the adoption by an officer of the respondent of an earlier statement:

"At about 1300 the same day it was obvious that we could not start the engine without the help of something – of fresh batteries. It was equally obvious that if there happened to be a wind change and a worsening of the weather, the vessel would have been put at 'an risk' situation due to the fact that she could not be moved under her own power."

and encapsulated, through counsel's address to the jury, the secondary in the terms:
"A five hundred dollar battery … was all that was needed. I asked him why he'd left St Helens as the skipper without a spare, because you might think, as it turned out, that the vessel was endangered by not having one."

The event occurred in 1983 and proceedings not commenced until 1994. The trial was conducted in 2004. The time elapsed necessarily affected the capacity of the parties to present clear and precise details of their respective cases. The memory of witnesses was doubtless inexact and subject to the natural and understandable processes of reconstruction and fragmentation. Differences in the evidence concerning times, reported locations, the contents of messages and their form or intonation in communication, local weather conditions, and the like, central to the respective cases, were classic jury issues.

Grounds of appeal

For convenience, the grounds of appeal can be considered under the following categories:

(1)Nature of the duty in that:
(a)     the learned trial judge incorrectly formulated the duty as extending "to a risk of injury or damage as a result of giving assistance in an emergency or responding to a call for emergency assistance";
(b)     failed to instruct the jury that the duty was "not to unnecessarily or unreasonably call for assistance in terms as would make it foreseeable that the master of another vessel would respond in circumstances which would expose the crew to a risk of injury";
(c)     failed to direct the jury that on either version of the "radio calls" it was reasonably foreseeable that the appellant would render assistance.
(2)Failure to maintain the vessel in that the learned trial judge failed to properly direct the jury that the consequence of such failure was danger, actual or perceived, and made it reasonably foreseeable that the appellant would respond and expose himself to a foreseeable risk of injury.
(3)Inadequate directions as to the issues of causation and standard of proof.
(4)Voluntary assumption of risk. The error claimed is leaving the issue for consideration by the jury.
(5)Evidentiary matters concerning cross-examination or its failure and the use of unchallenged evidence.

Duty of care

The appellant claimed compensation as a person injured in the course of "a rescue" in circumstances where the defendant had negligently caused those circumstances, or if those circumstances caused the "rescuer" to reasonably believe he or she was acting in response to that emergency (see generally Law of Torts, Fleming, 9^th ed, 1998 186; Law of Torts, Balkin and Davis, 3^rd ed, 2004 225 – 226; The Law of Torts in Australia, Trindade and Cane, 3^rd ed, 1999 435). The duty is one of conformity to the standard of reasonable conduct, not one definable by category (Vairy v Wyong Shire Council [2005] HCA 62; Mulligan v Coffs Harbour City Council [2005] HCA 63). Consideration of matters of scope and content of duty attaches to the standard of care required to discharge that duty. As McHugh J observed in Vairy at 29:

"… the argument for various parties did not keep the issues of duty and breach distinct. The arguments were often clouded by reference to phrases such as 'the scope and content of duty' and 'duty to warn'. Judges and lawyers often use such phrases. When they are understood as commensurate with the standard of care required to discharge the defendant's duty of reasonable care, they cause no harm. But often enough they are used as if they themselves define or were the duty, or part of it. Using them creates the risk that they will be treated as stating legal propositions and convert what is a question of fact into a question of law. Hence, their use invites error in analysis, particularly the analysis of judicial precedents."

There might be a need for a generalised enquiry, especially in cases involving public access to property maintained by a statutory authority (Wyong Shire Council v Shirt (1979) 146 CLR 40, per Mason J at 47), but here the duty was specific to the appellant. The appellant was the master of a vessel at sea in the general locality of the respondent's vessel. The "call for assistance" relied on by the appellant after response, was specific to the appellant's vessel. Although the appellant became aware of the difficulty experienced by the D'Entrecasteaux in a more general communication, the actual communications which brought about the response were specific to the two vessels. Thus, the "terms and content" of those communications were central to the establishment of the duty. If those terms were negligent or at least caused another to reasonably believe that he or she was acting in an emergency, the appellant was entitled to succeed. Here the appellant's case was unequivocal in its reliance on negligent or careless misrepresentation by the master of the D'Entrecasteaux in that:

(a)the vessel was in a particular location which was inherently dangerous and not in a sheltered anchorage;
(b)the engine of the vessel could not be operated;
(c)there was a strong potential for danger;
(d)urgent assistance was required;
(e)the appellant responded to that circumstance as communicated; and
(f)the injury occurred in the course of the "rescue".

The learned trial judge had provided the jury with a written memorandum. The memorandum stated, relevantly as to duty:

"1The Fisheries Development Authority and its employees and agents, including Mr Batchler, owed Mr Morton and other seafarers a duty to take reasonable care for their safety, and for the safety of their property.
2That duty required them to take reasonable steps to avoid a risk of injury or damage resulting from the master of another vessel and his property being exposed to a risk of injury or damage as a result of giving assistance in an emergency, or responding to a call for emergency assistance.
…
4The Authority, its employees or agents (including Mr Batchler), breached the duty of care if any of them did something that reasonable people in their position would have refrained from doing in order to avoid a risk of injury or damage being suffered by the master of another vessel.
5The Authority, its employees or agents (including Mr Batchler), breached the duty of care if any of them omitted to do anything that reasonable people in their position would have done to eliminate or reduce a risk of injury or damage being suffered by the master of another vessel.
6In deciding what a reasonable person, or reasonable people, would have done or refrained from doing in order to avoid, eliminate or reduce a risk of injury or damage, it is necessary to consider:
(a)   the seriousness of the risk;
(b)   the likelihood of injury or damage occurring;
(c)   the expense, difficulty and inconvenience of taking alleviating action;
(d)   any conflicting responsibilities."

There is a slight difference between the terms of the memorandum, par2, as provided at the hearing of this appeal and a possible amendment suggested at trial. The transcript, at 255, records the following exchanges with counsel:

"his honour: Should I – should I – I'm just wondering if what you say is correct, what change I should make to the words 'as a result of giving assistance to the D'Entrecasteaux in rough weather', should I – should I say 'as a result of giving assistance in an emergency or responding to a call for emergency assistance'?
mr estcourt qc: Well for my part your Honour I'd be content with that, but obviously you'll hear Mr Avery or Ms Ryan.
his honour: Well I'll just write that down while I think of it. 'giving assistance in an emergency, or responding to a call for emergency assistance', or we can get rid of the words 'to the D'Entrecasteaux in rough weather' I suppose, what do you say about that?
mr estcourt qc: I'm content with that your Honour."

His Honour dealt with that issue and the memorandum in the context of the secondary basis of the appellant's case when he stated:

"So, we have a situation then where the authority and all its employees and agents owed Mr Morton and other seafarers a duty to take reasonable care for their safety and the safety of their property. Now that duty applied to the extent that it was relevant not just to Mr Batchler but also to Mr Richardson and also to people doing the work of the Fisheries Development Authority on shore making decisions about the maintenance of the D'Entrecasteaux. Now, specifically, that duty of care imposed certain specific obligations on the agents of the Fisheries Development Authority, the men on the D'Entrecasteaux and I deal with one specific aspect of that duty in paragraph 2. I'll read it:
That duty required them (that is the Authority and its employees and agents) to take reasonable steps to avoid a risk of injury or damage resulting from the master of another vessel and his property being exposed to a risk of injury or damage as a result of giving assistance in an emergency or responding to a call for emergency assistance.
That is to say, Mr Richardson and Mr Batchler had as part of their duty of care a duty to take reasonable steps to avoid placing Mr Morton and his vessel at risk as a result of Mr Morton giving assistance in an emergency or responding to a call for emergency assistance. Now, Mr Morton's case is that that duty of care was breached. The State and Mr Batchler say that it wasn't breached. Now, in paragraph 3, I deal with certain things that would need to be established before you can make a finding that the State is liable to pay damages to Mr Morton and I will read out what I've written there and then I'll go through it again slowly:
Before you can make a finding that the State of Tasmania is liable to pay damages to Mr Morton, you must be satisfied on the balance of probabilities of each of the following:
(a)The Fisheries Development Authority or one or more of its employees or agents breached the duty of care.
(b)Mr Morton suffered an injury and/or damage to his property.
(c)That injury and/or damage was suffered as a result of the breach of duty."

His Honour returned to the issue of duty of care, its breach and the import of a misunderstanding of the communication in his response to three questions involving probability of a misunderstanding, the definition of an emergency and the secondary basis of maintenance or seaworthiness, in the following terms:

"What's been pleaded in this case is that Mr Bachelor told Mr Morton that the D'Entrecasteaux and its crew were in imminent danger and required urgent assistance when they did not. There's no allegation that he was negligent in not making clear what he was saying so there's no allegation that there was a misunderstanding. So if you reach the conclusion that there was a misunderstanding that doesn't amount to a breach of duty or negligence. You can only find that there was a breach of duty or negligence on the basis that Mr Bachelor told Mr Morton that the D'Entrecasteaux and the crew were in imminent danger and required urgent assistance or words to that effect when that wasn't the position, or on the other basis that I spoke of earlier involving negligence in failing to maintain the vessel properly putting out to sea with the vessel in that state, not teaching the crew about how to maintain the engine and letting the vessel get into a situation where it couldn't be started at sea."

Having provided examples, readily understood, of use of motor vehicles, he continued:

"Well I think if you go back to fundamentals the fundamental duty is the duty I've referred to in paragraph 1 of the memorandum. A duty to take reasonable care for the safety of other people at sea and their property … from another perspective we come back to the allegation that's made in the formal documentation in this case, in the pleadings, that Mr Bachelor told Mr Morton that the D'Entrecasteaux and its crew were in imminent danger and required urgent assistance when they did not. Now, if the words said to have been spoken by Mr Bachelor are given the significance that Mr Morton said they had to him, then that would virtually inevitably lead to the conclusion that this was a call for emergency assistance. If someone radios and says 'Can you bring me a battery later in the day if that's all right when you get around to it?' and the weather's safe, then that's not a call for emergency assistance, somewhere in between is a borderline but it's really a question for a jury, not for a judge, to decide what amounts to a call for emergency assistance and what is a call for friendly help. Perhaps it's a matter of the degree of danger that the caller indicates exists where the caller is. It's a question of degree for the jury to decide whether the danger suggested is an emergency or whether the need for assistance falls short – that's been described – falls short of an emergency situation. Do counsel want to make any submissions about that?"

and in response to the third question expressed by the jury as:
"In relation to the possible finding of the jury that the State of Tasmania has breached its duty of care in relation to the seaworthiness of the boat, could you please restate the path of logic that we must come to, to establish the State was negligent to Mr Morton."

stated:
"his honour: Yes. What's been pleaded, apart from some material about an anchor and drifting, I think hasn't got any basis in the evidence. What's been pleaded is this. That the Fisheries Development Authority's employees and agents were negligent in:
(a)failing to properly maintain the D'Entrecasteaux;
(b)failing to ensure that the D'Entrecasteaux was equipped with an engine and associated equipment and that must mean battery banks in good working order;
(c)failing to instruct the crew of the D'Entrecasteaux properly or at all in the repair and maintenance of the engine;
(d)allowing the engine and associated equipment of the D'Entrecasteaux to be in such a state that the engine was unable to be started at sea.

Now it's been alleged that people working for the authority and therefore for the State breached the duty of care in those respects. That is, it's alleged that as a result of those failures Mr Morton was exposed to danger in this way. As a result of those failures a situation developed where the D'Entrecasteaux was away from port with its engine stopped, with its engine unable to be started. According to a report written by Mr Bachelor the extract from which appears in a question of Mr Avery at the top of page 212 of the transcript which you've now got, there was a chance that the weather would deteriorate to such an extent that there was a risk to the D'Entrecasteaux. Now if you accept that people working for the authority and thus for the State were negligent in failing to take proper care of the vessel and its batteries and crew training and so forth, and that the result of that was that the vessel ended up at sea or away from port unable to be started, you'd need to go on to consider whether the failures in relation to the engine and/or crew training involved a breach of the duty to take reasonable care for the safety of other people at sea like Mr Morton. You'd need to consider whether you're satisfied on the balance of probabilities that there was a breach of the duty of care that was owed to Mr Morton and that he was injured and his boat damaged as a result of the breach of that duty of care and you'd need to consider whether the damage to the vessel and the injury to Mr Morton was a foreseeable consequence of failing to take proper care of the vessel and failing to take proper steps to avoid a situation where it was away from port unable to be started and in need of assistance. Now the State would say that however lamentable the condition of the vessel might be – whatever the problems with the vessel – whatever the problems with the skills of the crew might have been, that:
1The vessel was in no danger.
2Even if it was in danger, the failure to maintain the vessel properly and any failure to have a skilful crew is so remote from what happened to Mr Morton that it can't be said that he was hurt as a result of any breach of the duty of care owed to him and that it can't be said that the injury to Mr Morton was a foreseeable consequence of a failure to maintain the vessel or a failure to have the crew properly trained.

If you reject the evidence that Mr Bachelor made false assertions about danger and if you're left with the question of whether the State is liable on this sort of basis, then I'm sure what Mr Morton would say or what Mr Avery would say is this: that if you've got a vessel and you send it out to sea in such a state that the crew might find themselves with an engine that they can't start, then it's completely foreseeable that someone might have to come to give assistance in bad weather and be exposed to a risk of injury either on the journey to the vessel or on the journey back to safety and that therefore if there was a breach of the duty of care – sorry – that therefore a failure to maintain the vessel properly would be a breach of the duty of care to other seafarers. A failure to have properly skilled crew would be a breach of the duty of care to other seafarers. If the vessel really was in danger and perhaps that's a big if – if the vessel really was in danger then it is a logical and none too remote consequence of the failure to maintain the vessel properly and failure to provide it with properly trained crew that someone came to its rescue in bad weather and got hurt going back again. So there is a logic to the claim on that basis and there are contrary arguments from the State."

Since the hearing of this appeal, this Court has considered the issue of the directions appropriate to the issue of proof on the balance of probabilities (Carney v Newton [2006] TASSC 4). There is nothing in those reasons for judgment which would enhance the appellant's claim of erroneous direction.

Causation

Ground 6, dealing with causation raises some issues common to that of "voluntary assumption of risk". In March v Stramare (1991) 171 CLR 506, Deane J stressed the importance of determining cause "by a value judgment involving ordinary notions of language and common sense", explaining his reasoning in the following terms at 522 – 524:

"Causation in the context of the elements of the tort of negligence is not the same thing as the 'scientific term descriptive of sequence in physical phenomena' (Clerk and Lindsell on Torts, 16th ed (1989), par1-103; and see, generally, the various papers in 'Symposium on Causation in the Law of Torts', (1987) 63 Chicago-Kent Law Review, esp Professor Wright, 'The Efficiency Theory of Causation and Responsibility: Unscientific Formalism and False Semantics', at pp 553ff.). For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it (cf Barnes v Hay (1988) 12 NSWLR 337, at p 339). The 'but for' (or 'causa sine qua non') test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense. In particular, the test will commonly exclude causation for the purposes of the law of negligence if the answer to the question it poses is that the accident which caused the injuries would have occurred in the same way and with the same consequences in any event (see, eg, Duyvelshaff v Cathcart and Ritchie Ltd (1973) 47 ALJR 410, at pp 414-415, 416-417, 419; 1 ALR 125, at pp 134-135, 138, 142-143). There are however, in my view, convincing reasons precluding its adoption as a comprehensive definitive test of causation in the law of negligence. First, the clear weight of authority is against the substitution of such a formularized test of causation for a 'common sense idea of what is meant by saying that one fact is a cause of another' (see, eg, Fitzgerald v Penn, at p 277; The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, at pp 590-592; Stapley v Gypsum Mines Ltd [1953] AC 663, at pp 681-682). Secondly, unqualified acceptance of the 'but for' test as even a negative or exclusionary test of causation for the purposes of the law of negligence would lead to the absurd and unjust position that there was no 'cause' of an injury in any case where there were present two independent and sufficient causes of the accident in which the injury was sustained. Less importantly, acceptance of the 'but for' test as a comprehensive test would carry with it the need to draw somewhat artificial distinctions to avoid the type of confusion between an accident which happened and one which did not which is to be seen in the discussion in Fitzgerald v Penn (at pp 276-277) of the unreported case of Skewes v Public Curator of Queensland (6 September 1954). Thirdly, the mere fact that something constitutes an essential condition (in the 'but for' sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a 'cause' of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a 'cause' of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a 'cause' of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred 'but for' the original gift. As Lord Reid pointed out in Stapley (at p 681):
'The question (of "what caused an accident from the point of view of legal liability") must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally'."

In his written submissions, counsel for the appellant took no issue with the terms of the written memorandum, but suggested that the directions were confusing and inadequate and ought to have been:

"(a)that the defendant's negligence was a cause of, or materially contributed to, the injury; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 514; Bennett v Minister of Community Welfare (1992) 176 CLR 408, at 420, Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 482, Shorey v PT Ltd (2003) 77 ALJR 1104 at [41];
(b)that a contribution was material unless it was negligible; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 345; Western Australia v Watson [1990] WAR 248 at 286;
(c)as to how it should approach the determination of the issue; ie the meaning and permissible uses of the 'common sense' approach and the 'but for' test."

The learned trial judge did give adequate directions. He told the jury that a breach of duty need not be the sole cause of injury or damage, but could be but one factor in the causation of injury. He explained that the jury as "fact finders" were to use their own common sense in considering the evidence of causation, adding:

"Well, it's a question for you as to whether the call for radio assistance or the request by radio for assistance was a cause or even the substantial cause of the injury suffered by Mr Morton or whether it was neither the sole cause nor one of a number of causes that contributed to his injury."

The cause of injury here was a wave which struck the appellant's vessel some time after and distant from the scene of injury. The appellant stated that when the Donna Maris was abeam of Battery Island, some five miles distant from Preservation Island, the weather worsened, but since he was some five miles distant from Preservation Island, he decided to maintain course, intending to reach a sheltered position some 2½ miles ahead to the north eastern side of Sloping Point. He said that the sea was running astern and when he had reached the channel between Sloping Point and Seal Point, a following wave struck the vessel, causing the injury. The evidence suggested that the Donna Maris had been alongside the D'Entrecasteaux for some 45 minutes and that the injury had occurred within an hour into the return journey. There were stark differences in the evidence as to the weather conditions at the relevant times, although the appellant stated that at the time of the commencement of the return journey, "the weather was moderate". There was an obvious relationship between the presence of the appellant's vessel at the place where the wave struck and his initial journey to the location of the D'Entrecasteaux. But the causative link was tenuous and, in turn, depended on the establishment of a breach of duty. The question of whether the Donna Maris was at the place of injury as a result of a negligent call for assistance, the decision to commence the return journey and the existence of the wave itself as a novus actus interveniens were all part of the causative links. Unless the jury was satisfied that the wave which caused the injury, on the return journey, was a consequence of the "rescue journey", in fact the initial journey was one of rescue and that it was a consequence of a breach of duty, the causative link was not established. (See, generally, Vairy v Wyong Shire Council (supra); Mulligan v Coffs Harbour City Council (supra); Neindorf v Junkovic (2006) 222 ALR 631.) On the appellant's case, there remained the additional problem of "foreseeability". Unless the jury was first satisfied that there was a "rescue" case, the causative act by nature could not be said to have been a consequence of breach. The learned trial judge correctly directed the jury on this matter generally and those directions were consistent with those required in accordance with the statements of the High Court in Shorey v PT Ltd (2003) 77 ALJR 1104.

Voluntary assumption of risk

The respondent had relevantly pleaded:

"13Further, or in the alternative the defendant's [sic] say that with full knowledge of the risk of injury or damage to himself by the acts referred to in paragraph 9 of the amended statement of claim, the plaintiff voluntarily consented to accept the risk by commencing his return journey."

The learned trial judge stated the issue in his written memorandum provided to the jury in the following terms:

"9 Mr Morton is not entitled to recover any damages if you are satisfied on the balance of probabilities of all of the following:
(a)When he set out to return from Preservation Island to Crowe's Bay, the weather conditions were so bad that it was dangerous to embark upon that journey.
(b)At that time, he knew and fully appreciated the danger of embarking at that time upon his return journey.
(c)He voluntarily and freely accepted the risk of being injured and suffering damage to his property on his return journey."

In many cases, the defence of volenti non fit injuria has no application in a "rescue case". The policy considerations which govern that principle have been stated by the learned author Fleming in The Law of Torts, 9 ed (1998) at 187 in the following terms:

"At one time the voluntariness of rescues used to pre-empt most of the debate, recovery then being persistently defeated on the twin grounds of voluntary assumption of risk and remoteness of damage. Of these the first is now refuted because the duty, legal or moral, thrust upon the would-be rescuer to intercede excludes all real choice, whether he is a volunteer or a professional (such as policeman or fireman). Courage deserves no less a reward because danger is deliberately faced".

The accident giving rise to injury occurred during the return journey of the appellant to his fishing ground, some time and distance from Preservation Island. There was a difference in the evidence about the state of the weather at the time of the departure of the Donna Maris. But the decision to embark on that journey was that of the appellant. He was not then responding to an emergency and could evaluate for himself the safety or otherwise of that journey. If, in his opinion, the weather was inclement, he could delay his time of departure and if favourable, then the change later occurring provided a differing causative event. Here the question of causation of injury and the doctrine of volenti non fit injuria became interlinked, the temporal and geographic difference between the completion of the "rescue", the circumstances of the act causing injury and its nexus with the original "act of rescue". If the jury were not affirmatively satisfied that the original intervention did not constitute a "rescue", then the issue did not arise. If they were so affirmatively satisfied, then it was within their province to determine whether the injury was a result (in the sense of cause or material contribution; March v Stramare (supra); Romeo v Conservation Commission NT (1998) 192 CLR 431; Shorey v PT Ltd (supra)) of that intervention. It was in that context that the jury were entitled to assess the impact, if any, of the legal principle of volenti. Whether he accepted the risks associated with a fresh journey at sea, in returning from the scene of "rescue", remained a question of fact (Haynes v Harwood [1935] 1 KB 146; Brandon v Osborne Garrett & Co [1924] 1 KB 548. See also Ward v T E Hopkins & Son Ltd [1959] 3 All ER 225). In Ward, Willmer LJ stated the application of principle at 243 when he said:

"It seems to me that, when once it is determined that the act of the rescuer was the natural and probable consequence of the defendant's wrongdoing, there is no longer any room for the application of the maxim volenti non fit unjuria. It would certainly be a strange result if the law were held to penalise the courage of the rescuer by depriving him of any remedy. Greer, LJ, in Haynes v Harwood [1934] All ER at 109; [1935] 1 KB at 159 was clearly of the view that the maxim cannot be applied to defeat the plaintiff's claim in a rescue case."

In The Insurance Commissioner v Joyce (1948) 77 CLR 39, Dixon J, at 57 – 58, although in dissent on the grounds, recognised that the question of volenti remains open as a question of fact in rescue cases. (See also Duncan v Bell and State Government Insurance Office (Queensland) [1967] Qd R 425.)

In that regard the circumstances of the injury could be said to be a novus actus interveniens which, of itself, does not necessarily preclude the application of volenti (Haynes v Harwood (supra)), but requires consideration by the "fact finder". (See Wagner v International Railway Co (1921) 232 NY 176, Cardozo J, a case cited with approval by the High Court in Chester v Council of the Municipality of Waverley (1939) 62 CLR 1.) In Wagner, Cardozo J concluded his analysis of legal principle by stating:

"Whether Herbert Wagner's fall was due to the defendant's negligence and whether the plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the emergency confronting him, were questions for the jury."

That approach is consistent with the one earlier stated by Lord Herschell in Smith v Baker & Sons [1891] AC 325 in the following passage at 366 - 367:

"… if there had been no breach of duty it would not have been necessary to inquire whether the maxim, 'Volenti non fit injuria,' afforded a defence, it seems to me that it must have been a question of fact, and not of law, whether the plaintiff undertook the employment with an appreciation of the risk which arose on the occasion in question from the particular nature of the work which he had to perform."

If the jury was satisfied that there had been a breach of duty then, in the circumstances of this case, they were required to consider whether, as a matter of fact, the respondent was entitled to rely on the defence of volenti. The learned trial judge was required to leave the issue for determination by the jury.

Evidence

The grounds of appeal considered under this heading state:

"8The learned trial judge erred in directing the jury that it was not compelled to accept unchallenged evidence as true, without informing them:
(a)   that if a witness was not cross-examined on a particular matter, that was a good reason for accepting that witness' evidence, particularly if it was uncontradicted by other evidence;
(b)   that it would usually be unfair to reject evidence on which there had been no cross-examination.
9The learned trial judge erred in that he failed to direct the jury as to the effect of:
(a)   the failure to cross-examine the witness RJ Slater had on whether it might be satisfied on the balance of probabilities that the plaintiff's version of the radio calls was correct; and
(b)   the failure to directly challenge the plaintiff on the issue of the D'Entrecasteaux's dinghy."

Slater was the deckhand on the Donna Maris. The appellant had provided his version of the contents of the radio communications and relied on the presence of the dinghy to corroborate his claim that an incorrect account of the location of the D'Entrecasteaux had been provided. The reasoning was that the dinghy had been sent to the incorrect location to redress the mistake and guide the Donna Maris to the correct anchorage. Slater stated that as the Donna Maris approached Mahon's Rock, he saw, "… a dinghy pop out of the water coming from … in the direction of Preservation Island". He could not tell its course, but advised the appellant of its presence. He stated that "the man in the dinghy ultimately took him in some other direction from where he was expecting to go", and was led to the D'Entrecasteaux's anchorage. He was not cross-examined. The appellant gave a similar account, stating that he had seen the dinghy "about half a mile off". On his account, the appellant had asked the occupant of the dinghy where the D'Entrecasteaux was and the anchorage was indicated. The appellant was cross-examined on his account. The evidence of Slater added nothing to the "tested" account of the appellant and did nothing other than establish that a dinghy from the D'Entrecasteaux was in the general area. No significant issue of "credibility" was raised since the respondent's witnesses did not positively assert that the dinghy could not have been present in the general location.

The version given by the appellant was challenged, both in cross-examination and by evidence adduced on behalf of the respondent.

There had been no breach of the general principles stated in Brown v Dunne (1894) 6 R 67 (HL), nor recourse sought as to a possible sanction for any claimed breach.

The question of the meeting of the dinghy and the Donna Maris was peripheral to the respective cases. The appellant relied upon the presence of the dinghy to corroborate, indirectly, his account that an incorrect position of the D'Entrecasteaux had been given through the radio messages which induced him to believe in, and respond to, the existence of an emergency. The presence of the dinghy in the water was not positively denied by the respondent's witnesses. Batchler could not say that it was or was not in the water, but could only say that he had not seen it there. Richardson could not say whether it had been launched or not. McIntyre, who was alleged to be the occupant of the dinghy, had no recollection, but concluded that "stranger things had happened". It was probable that the dinghy had been launched, if only to permit the crew of the D'Entrecasteaux to go ashore from the anchorage. What was in issue was the claimed exchange between the occupant of the dinghy and the D'Entrecasteaux and its import. That had been fairly and fully challenged.

The grounds are not sustained.

Conclusion

In my opinion, none of the grounds ought be upheld. If there was error or omission, they were minor and of no import, but a product of a line by line critique in the terms stated by Windeyer J in Jones v Dunkel (supra). The Supreme Court Civil Procedure Act 1932, s50(1)(a) provides:

"(1) Notwithstanding anything in this Part contained a new trial shall not be ordered ¾
(a)on the ground that the trial judge misdirected himself or the jury (as the case may be), or that evidence was improperly received or rejected, or (in the case of a trial by jury) because the judge failed to direct the jury on any question or matter which he was not asked to direct them on, or because the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to them, unless in the opinion of the Full Court some substantial wrong or miscarriage has been thereby occasioned; and if it appears to the Full Court that such wrong or miscarriage affects part only of any matter in controversy, or some or one only of the parties, such Court may exercise the power conferred by section 39(4)."

Mere speculation is not sufficient. An appellant must show that the jury could have been misled by an erroneous summing up, that there was an error in principle in a particular issue, or that the import of the directions was confusing (General Motors v Moularis (1964) 111 CLR 234). Here the summing up of, and directions given by, the learned trial judge reflected the evidence and the course of the trial as presented. Corrections or additions to the memorandum and the form of the oral directions were discussed with counsel and at the conclusion of that summation, no request was made for redirection (Jones v Dunkel (supra); Jones v Skelton (1963) 37 ALJR 324).

In my opinion, the appeal ought be dismissed.
File No FCA 103/2004

PAUL GREGORY MORTON
v STATE OF TASMANIA, DAVID BATCHLER

REASONS FOR JUDGMENT FULL COURT

TENNENT J
29 August 2006

I have had the benefit of reading the reasons for judgment of Slicer J. I agree in substance with those reasons and would dismiss the appeal.

I would, however, make some comment about the concept of "carelessness" in relation to the statements said to have been made by Mr Batchler to the appellant in the radio calls.

Counsel for the appellant submitted that the learned trial judge should have put considerations of carelessness to the jury in relation to the contents of the radio calls. He argued that par11 of the statement of claim was drawn widely enough to encompass the concept of careless, as well as deliberately misleading, statements by Mr Batchler having given rise to the appellant's concerns. He further submitted that the question posed by the learned trial judge that par11 did not cover a misunderstanding was not correct because a misunderstanding could result from deliberate or careless statements. Counsel went on to suggest the word "told" in par11 could encompass "conveyed to" and that the concept of careless misleading statements was open on the evidence. A trial judge, he argued, was ordinarily bound to leave to the jury any position reasonably open on the evidence. What the learned trial judge had done instead was concentrate on deliberately false statements.

Counsel submitted that:

"The question of the plaintiff being 'mislead' as distinct from him legitimately misunderstanding what Mr Batchler said, was specifically raised by the jury …. No attempt was made to address the distinction between intentional misleading, and careless misleading."

What the jury asked about this was:

"… do we have to believe that in all probability Mr Batchler misled Mr Morton or is it enough that there is a probability that Mr Morton legitimately misunderstood what Mr Batchler said?."

The learned trial judge sought submissions from both counsel as to how he should respond to this query. He referred to par11 in the statement of claim and said that that appeared to cover the situation and it said nothing about a misunderstanding. Both counsel agreed with that and his Honour then told the jury:

"What's been pleaded in this case is that Mr Bachelor told Mr Morton that the D'Entrecasteaux and its crew were in imminent danger and required urgent assistance when they did not. There's no allegation that he was negligent in not making clear what he was saying so there’s no allegation that there was a misunderstanding."

It is quite clear from that remark that the jury were being told this was not a case where it was being suggested Mr Batchler might somehow have confused the appellant by the contents of his calls being carelessly inaccurate. They were told this was a case in which it was being said Mr Batchler deliberately misled the appellant. Neither counsel asked for this issue to be clarified or expanded upon following his honour's comment. The question is then, was the learned trial judge wrong? Was the concept of carelessness indeed open on the pleadings and/or evidence?

As to the pleadings, I cannot see how that can be interpreted as encompassing carelessness. The ordinary meaning of the word "told" is that something is directly said and not simply that an impression or idea is given. The appellant's case was pleaded to the effect that Mr Batchler told him where the D'Entrecasteaux was, that it was anchored (as opposed to moored) there, that they could not start the D'Entrecasteaux's engine, that they were in imminent danger of being dragged ashore and that they required urgent assistance.

In his evidence, the appellant said that firstly Mr Batchler said the D'Entrecasteaux was "in a bit of trouble", that the D'Entrecasteaux was "anchored on the northern side of Preservation Island" and that "their engine couldn't be started." The appellant identified a spot marked with the letter "D" on a map and said "The letter D marks the spot where we were told that the vessel was." He went on to describe the conditions which could prevail there and said that if in fact that was where the vessel was, they would have trouble getting life insurance. He went on to say that "Mr Batchler informed us the vessel was only 50 feet from the shore and in danger of dragging ashore. Now if that had been the case then they were in very real and very serious trouble." He described Mr Batchler as sounding quite agitated.

The appellant was asked some further questions about the conversations with Mr Batchler. The exchange with his counsel was in the following terms:

"Did you notice anything that you thought unusual when you walked in there? ... I noticed that Mr Richardson had peeled some potatoes and there were the peels in the sink and there was an open can of beer on the sink and under the seat – the helmsman's seat, there was a carton of Victorian bitter and a carton of Fosters.
Okay. Now were you offered some beer while you were sitting there? … No, we were not. Ray was very disappointed.
Okay. Were you given any refreshments whilst you were there? ... Yes. We had a cup of coffee and we – or I drew out a plan for Mr Richardson of average voltage – how to fix the problem that occurred if it reoccurred.
So what did you basically show on the diagram if the problem reoccurred, given you'd had to use a spare to get it started? ... Well, instead of trying to connect the lighting bank of batteries that they had on board directly to the starting bank of batteries, if those batteries were charged, he could take one of those and put it directly onto the starter motor to give the amperage necessary to start the boat or could have used if that wasn't available, he could have used the battery from the dinghy.
So were these things you wrote out or sketched out for him? ... Yes and I also just sketched out how to put the battery onto the starter motor, directly onto the starter motor.
All right. Now how long did it take before Mr Slater had finished what he was doing down below? … Not very long at all, about fifteen minutes or so.
Did the – was it successful in getting the motor started? … Yes it started the motor almost immediately, and that proved the problem, to my way of thinking, was an amperage problem rather than a voltage problem.
Did you give some suggestion as to whether the motor ought to be kept running or anything like that? … No I didn't but Mr Richardson told me that he was going to leave the motor running until they departed from the mooring.
Right. Did you have at any time earlier in that day, when you were fishing, it seems, about twelve or fourteen miles away, did you have any intention of going up round that area where the D’Entrecasteaux was? ... No way, no.
Did you at any time, in any conversation with Mr Batchler on the 'phone – sorry, on the radio, tell him you were intending to go up that way that night? … No, most definitely not."

When the appellant was cross-examined about the contents of the discussions with Mr Batchler, the following exchange occurred:

"Now you go further than that don't you, you say that Mr Batchler deliberately misled you as to his position? … He did.
And that when you got to Preservation Island and found him in the safe anchorage of House Bay you were extremely annoyed with him? … I was yes.
And you swore at him? ... Yes.
And he had a grin on his face? … That's right.
So what you're saying to the Jury, let it be clear, is that Mr Batchler deliberately lied to you about his position in order to make their needs seem all the more dire and to get you there or as you might not otherwise have gone? … Yes."

There was a subsequent exchange between the appellant and counsel for the respondent about directions and about what was the north and east of Preservation Island. Counsel for the appellant submitted that debate somehow supported the idea that the concept of carelessness was open on the evidence. I do not agree.

In any event this debate arose very shortly after the exchange where the appellant confirmed he was asserting Mr Batchler had deliberately misled him.

Mr Batchler also gave evidence about his radio calls with the appellant. There was a dispute about exactly when they occurred, but there was agreement there were two. On Mr Batchler's evidence they were a couple of hours apart, on the appellant's, they were about 15 to 20 minutes. Mr Batchler said he could not remember word for word what was said, but that he told the appellant there was trouble starting the D'Entrecasteaux's engine, the battery was down and they were on the mooring at Preservation Island. His evidence was that the appellant's response was to give him a call later and if the D'Entrecasteaux still could not get its engine going he would probably come up and lay there that night. Mr Batchler then rang him back and said they still could not get the engine going. The appellant, he said, said he would set the rest of his pots and come on up.

Mr Batchler denied he falsely reported his position to the appellant and that he told the appellant the D'Entrecasteaux was in danger. Mr Batchler was cross-examined at length about the conversations he had with the appellant. He denied that he insisted in any way that, or commanded the appellant to, come to his aid. He denied that he said the D'Entrecasteaux was in danger, that it was in a dangerous position or that the crew needed help urgently. He denied he stated the D'Entrecasteaux's position falsely to put pressure on the appellant to come.

Counsel for the appellant referred to Mr Batchler's evidence as it appeared at 235 of the appeal book about what he told the appellant as supporting his contention that the concept of carelessness was open on the evidence. With respect, I cannot interpret that evidence in that light. Mr Batchler was adamant he had told the appellant the D'Entrecasteaux was on a mooring, as opposed to being anchored, and that there was only one mooring at Preservation Island that being "Mr Benjamin's". The appellant had already given evidence about his knowledge of the area and that particular mooring.

The jury was therefore faced with diametrically opposed versions of the radio calls said to have taken place.

With respect, the evidence of the appellant was clear that Mr Batchler told him that the D'Entrecasteaux was in danger and that his assistance was urgently needed. This was a case clearly put that the respondent deliberately lied to mislead the appellant. It was never that the respondent might simply have provided information without taking due care as to its accuracy such that the appellant was misled.

There could be little doubt in the jury's mind, if it accepted the appellant's evidence, that this was an emergency and he was responding to it. If, however, it did not accept his evidence, as one can only assume it did not, then it must have accepted that the radio calls were as told to them by the respondent's witnesses and as such did not entail any deliberate or even careless misleading by the respondent as to the D'Entrecasteaux 's position nor information which suggested the D'Entrecasteaux was in danger.

The learned trial judge, in my view, adequately directed the jury if regard is had to what he said, which appears at 318 of the appeal book. After giving examples of what might and might not be examples of emergencies, he said:

"Now, they're not perhaps the best examples, but from another perspective we come back to the allegation that's made in the formal documentation in this case, in the pleadings, that Mr Bachelor told Mr Morton that the D'Entrecasteaux and its crew were in imminent danger and required urgent assistance when they did not. Now, if the words said to have been spoken by Mr Bachelor are given the significance that Mr Morton said they had to him, then that would virtually inevitably lead to the conclusion that this was a call for emergency assistance. If someone radios and says 'Can you bring me a battery later in the day if that's all right when you get around to it?' and the weather's safe, then that's not a call for emergency assistance, somewhere in between is a borderline but it's really a question for a jury, not for a judge, to decide what amounts to a call for emergency assistance and what is a call for friendly help. Perhaps it's a matter of the degree of danger that the caller indicates exists where the caller is. It's a question of degree for the jury to decide whether the danger suggested is an emergency or whether the need for assistance falls short – that's been described – falls short of an emergency situation. Do counsel want to make any submissions about that?"

Neither counsel after that sought to have the directions amended or added to.

I am of the view that the learned trial judge had no obligation to put the concept of carelessness to the jury as it was neither pleaded nor raised by the evidence. This was also in circumstances where counsel for the appellant did not ask for it to be put.