Moxham v Kaal & Ors

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Moxham v Kaal & Ors [2004]  NSWCA 298

FILE NUMBER(S):
40928/03

HEARING DATE(S):               13 July 2004

JUDGMENT DATE: 01/09/2004

PARTIES:
Lisa Moxham (Appellant)
Phil Kaal (First Respondent)
Joe Kaal (Second Respondent)
Toukley Aquatic Club Ltd (Third Respondent)
New South Wales Water Ski Association Ltd (Fourth Respondent)
Waterways Authority (Fifth Respondent)

JUDGMENT OF:       Sheller JA Beazley JA Hodgson JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 81/02

LOWER COURT JUDICIAL OFFICER:     Robison DCJ

COUNSEL:
D Wheelahan QC;  A McSpedden (Appellant)
AC Bridge SC;  R Cavanagh (Respondents)

SOLICITORS:
Marsdens (Appellant)
Boyd House & Partners (Respondents)

CATCHWORDS:
EVIDENCE - essential tasks of a judge - acceptance and rejection of evidence - making of findings on evidence - tasks must be carried out even where evidence given by a party is not wholly consistent
EVIDENCE - drawing a Jones v Dunkel inference does not solve any insufficiency in the evidence of the opposing party
EXPERT EVIDENCE - Evidence Act 1995 (NSW), s.79 - person put forward as expert must have experience specifically relevant to the issue about which they give evidence

LEGISLATION CITED:
Evidence Act 1995 (NSW)

DECISION:
Appeal dismissed with costs.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40928/03
DC 81/02

SHELLER JA
BEAZLEY JA
HODGSON JA

1 September 2004

MOXHAM v. KAAL

HEADNOTE

The appellant, who was injured in a water skiing accident, brought proceedings against the speed boat driver (the respondent) claiming he had negligently driven the boat at high speed through a part of the course, causing her to fall off her skis.

After having considered all the evidence, the trial judge concluded that the appellant must have been mistaken in her version of the accident.  The appellant appealed against the verdict entered for the respondent.

HELD per Beazley JA (Sheller and Hodgson JJA agreeing):

(i)It was open to the trial judge to find that the appellant must have been mistaken in her version of the accident even though he accepted her as a witness of credit.

(ii)The trial judge gave adequate reasons for rejecting the appellant’s version of the accident.

(iii)The trial judge did not merely find that the appellant had failed to establish the respondent’s negligence.  He found that the respondent was not negligent after a consideration of the whole of the evidence:  Duggan v Ampelite Fibreglass Pty Limited [2003] NSWCA 357 and Fitzgibbon v Waterways Authority [2003] NSWCA 294 distinguished.

(iv)Although there were discrepancies between the evidence of the respondent and that of his witness, his Honour found that their evidence was largely consistent.

(v)His Honour’s failure to deal with all of the discrepancies in the evidence in the respondent’s case did not undermine his ultimate finding that the respondent was not negligent. 

(vi)The drawing of a Jones v Dunkel inference does not solve any insufficiency in the evidence of the opposing party.

(vii)The acceptance and rejection of evidence, in whole or in part, and the making of…

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Details
Case
[2004] NSWCA 298
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from a decision of the District Court of New South Wales. The appellant, Ms. Moxham, was injured during a water ski race and brought proceedings against the respondents, Mr. Kaal and others, alleging negligence. The central dispute revolved around the circumstances of Ms. Moxham's fall, with conflicting accounts provided by the parties and their witnesses.

The primary legal issue before the Court of Appeal was whether the trial judge had adequately discharged her judicial function in resolving the factual disputes and making findings of fact regarding how Ms. Moxham fell. Specifically, the court considered whether the trial judge had provided sufficient reasons for rejecting the appellant's evidence and accepting the respondents' evidence, particularly in light of discrepancies within the evidence presented. The court also considered the admissibility and weight of expert evidence, noting that a person put forward as an expert must possess experience specifically relevant to the issue in question.

The Court of Appeal found that the trial judge had failed to adequately resolve the factual disputes and explain her reasoning for preferring certain evidence over others. While acknowledging that the trial judge found Ms. Moxham to be a truthful witness who did her best, the judge's conclusion that Ms. Moxham must have been mistaken due to discrepancies with the respondents' evidence was found to be insufficiently explained. The appellate judges emphasised the necessity for a trial judge to evaluate conflicting evidence and provide a clear analysis of why certain evidence was accepted or rejected, particularly when the credibility of witnesses had not been significantly challenged. The court noted that drawing a *Jones v Dunkel* inference does not resolve an insufficiency in the evidence of the opposing party.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

She knew that encountering rollers increased the risk of falling off and whether or not she might fall would depend upon how quickly she adjusted her method of skiing. Ms. Moxham said that if rollers are present, “we don’t accelerate out of the corner”. Evidence of Mr. Brier Ms. Moxham’s father, Mr. Brier, was on the finish boat, which was located on the finish line towards the bottom section of the southern straight. He was taking a video of the race and did not see his daughter fall. He saw her in the water after her fall, “just at the end of the corner of the starting line”. He described this as being level with the finish boat but on the other side of the course. From the diagrammatical evidence in the case, it would seem that this was some distance north of the start area. This was consistent with the evidence of the respondent and Mr Boylan. However, as the diagram was not scale little significance should be attached to this observation. In dealing with the video evidence his Honour rejected the suggestion that the height of spray coming from the boat was evidence of speed. There was no expert evidence to support such a contention, his Honour having rejected Mr. Ritchie’s evidence on this issue. In addition, Mr. Kaal said that the height of spray coming from the boat had nothing to do with speed. The Court view about a minute and a half of the video. At various times the video depicted both Stinger and Argo. Spray could be seen coming from the boats. The video did not show the fall although the words “Lisa’s come off” could be heard on the sound recording. To the extent that anything could be discerned from the video, the point at which this comment can be heard, appears to have the incident occurring further north than the place where Ms. Moxham located her fall. Mr. Brier was recalled to give evidence in reply in relation to a conversation he had with Mr. Boylan on the day of and shortly after the accident. He said:“Q. [Mr. Boylan] came up to me and said that it was the worst accident he’d ever seen and that the waves were so big that Lee’s knees hit her in the chest and I said, ‘It must have been a bad accident because of the injuries that Lisa had sustained’.” The trial judge accepted Mr. Brier’s account of this conversation and rejected Mr. Boylan’s evidence on this matter.Mr. Ritchie Mr. Ritchie was called as an expert in Ms. Moxham’s case. He had provided two reports, which purported to be expert reports. He also gave oral evidence. Mr. Ritchie had extensive experience as a water skier, including as a highly successful competitive skier. He had, on a “few occasions” been a driver and observer in ski races. He has owed and operated a water ski goods franchise for many years. Mr. Ritchie did not see the accident but was asked to express an expert opinion on a number of aspects of the accident. Certain of his opinions were based upon his viewing of the video. The trial judge rejected much of the material in Mr. Ritchie’s report. His Honour’s rejection of this material is subject to a separate ground of appeal. To the extent that his evidence was admitted, he disputed the accuracy of portions of the appellant’s evidence, and in particular where she said she had seen the rollers. He also gave some evidence as to how rollers were formed, which was consistent with the other evidence in the case. His comment that it was “difficult for me to say exactly what caused Lisa to fall” also survived the evidentiary challenge to his evidence.

Decision

Reasons for decision

On the appeal Giles JA at [8] criticised the trial judge’s approach, stating that she had failed to resolve the factual disputes, as she was bound to do, so as to decide how the plaintiff fell. Ipp JA pointed out the necessity for her Honour to evaluate the evidence. He added at [13]:“… It was, with respect, a failure of her judicial function not to explain why she could not come to a conclusion, by some form of analysis of the evidence and in particular by taking note of the discrepancies within the evidence of [the defendant’s witness]. …” Of this passage Giles JA said at [11]:“It may be that her Honour meant that, having considered all of the evidence, she was unable to decide one way or the other how the plaintiff’s accident occurred, so that the plaintiff had not discharged his burden of proof. It would be a rare case in which a judge would dispose of a matter in that way, but if that is what her Honour did her reason for it was that there were discrepancies between the evidence of the plaintiff and the evidence of [the defendant’s witnesses] …” In Fitzgibbon v. Waterways Authority there was likewise a conflict of evidence as to how the accident occurred. The Court of Appeal ordered a new trial on a limited basis because of the trial judge’s failure to give adequate reasons as to why he had rejected the plaintiff’s case. In particular, the Court was of the opinion that the trial judge had provided no reasons for the rejection of the evidence of the individual witnesses whose credibility had not been assailed and whose powers of observation and recollection had not been significantly challenged in the course of the conduct of the case. Duggan v. Ampelite Fibreglass Pty. Limited and Fitzgibbon v. Waterways Authority are examples of cases where an appellate court has held that a trial judge had failed to give adequate reasons for decision where there were conflicting versions of the accident. In this case senior counsel for Ms. Moxham submitted that his Honour had failed to explain why he rejected the plaintiff’s case. This was obvious, it was said, from the following passages containing his Honour’s conclusions::“… the evidence of the plaintiff is scant to the extent that she is really unable to tell this Court exactly what happened to her immediately preceding her injury … . If there had not been evidence from Mr. Boylan and the defendant I may well have found that the plaintiff sustained the injury in the circumstances that she described but if I were to accept the plaintiff’s evidence and make a finding along the lines that the accident occurred in the way she described in this case that would fly directly in the face of the evidence not only of the defendant but also Mr. Boylan. If I were to accept the plaintiff’s evidence along those lines, that would be entirely irresponsible as far as this Court is concerned and that should not be permitted.…It is not necessary for this Court to determine in fact where the plaintiff fell. The onus, as I said, remains with the plaintiff. If the plaintiff had satisfied me where she fell, so be it, but the combined effect of the evidence of the defendant and Mr. Boylan leads me to conclude that there is a significant problem with the plaintiff’s evidence when it comes to the question of the plaintiff’s recollection and its reliability. I stress yet again the plaintiff was a truthful witness. She did her best to tell this Court what happened.It seems, when I look at all of this evidence, that the plaintiff must have been mistaken. …”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.