Sartor v Bitton - [2019] NSWDC 723

District Court

New South Wales

Medium Neutral Citation: Sartor v Bitton [2019] NSWDC 723
Hearing dates: 17, 18, 19 July, 13 August, 11 October 2019
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Judgment for the second plaintiff against the defendants for $269,058.51.
(2)   Order the defendants to pay the second plaintiff’s costs as agreed or assessed.
(3)   Grant leave to approach my Associate if either party wishes to list the matter again before me to seek a different costs order.

Catchwords:
NEGLIGENCE – fishing charter vessel travelling through river bar – risk of suffering injury if large waves were encountered and passenger was not keeping a firm hold – risk unknown to an inexperienced person - passenger thrown to deck suffering injuries – need to provide a safety induction and to warn passengers of the dangers of the river bar – need to warn passengers to hold on to rails

NEGLIGENCE – Civil Liability Act 2002 (NSW) – ss 5B, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5L, 5M
DAMAGES – non-economic loss - past economic loss – future loss of earning capacity - Civil Liability Act 2002 (NSW) ss 13, 16
Legislation Cited: Civil Liability Act 2002 (NSW)
Competition and Consumer Act 2010 (Cth)
Motor Accidents Compensation Act 1999
Partnership Act 1892 (NSW)
Cases Cited: Lormine Pty Ltd & Anor v Xuereb [2006] NSWCA 200
Motorcyling Events Australia Group Pty Ltd v Kelly [2013] NSWCA 361
Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Texts Cited: Roads and Maritime Services Coastal Bar Safety Guide
Category: Principal judgment
Parties: Robert Sartor (First Plaintiff)
Megan Short (Second Plaintiff)
Glynn James Bitton (First Defendant)
Julie Bitton (Second Defendant)
Representation:
Counsel:
R Royle (Plaintiffs)
G Smith (Defendants)
Solicitors:
Shine Lawyers (Plaintiffs)
McInnes Wilson Lawyers (NSW) (Defendants)

File Number(s): 2018/191244

Judgment

Introduction

Shortly after 6.00am on 17 April 2017 the second plaintiff Ms Megan Short, and her partner Mr Robert Sartor, boarded the “Nautikat”, a catamaran which was operated by the defendants Mr Glynn and Mrs Julie Bitton and skippered by the first defendant Mr Bitton. The plaintiffs had engaged the defendants to conduct an offshore fishing charter leaving from Yamba in northern New South Wales.
The Nautikat proceeded along the Clarence River and commenced its crossing of the Yamba Bar. The vessel encountered three large waves. As the vessel met and crossed the third wave, Ms Short was thrown from her feet onto the deck of the vessel. She suffered injuries.
This incident occurred about 16 minutes into the voyage. The hearing in relation to that relatively simple event generated 298 pages of transcript, 68 pages of written submissions, 1993 pages of documentary exhibits and 9 hours of video footage.
The proceedings originally involved Mr Sartor as the first plaintiff and Ms Short as second plaintiff. However Mr Sartor’s action was settled and the hearing involved only the claim by Ms Short. Her claim was pleaded in a Statement of Claim filed on 20 June 2018. An Amended Defence was filed on the first day of the hearing being 17 July 2019.

The Plaintiffs’ Allegations

The plaintiffs pleaded that Mr Bitton breached his duty of care in the following respects:

Failed to provide a safety induction to his passengers.

Failed to assess the bar conditions prior to entering the channel.

Drove the vessel in an unsafe manner.

Drove the vessel over waves at a speed that made it unsafe to do so.

Traversed the coastal bar at a point where the swell was high.

Drove the vessel at a speed so that it became airborne and landed heavily on the water.

Failed to warn the plaintiffs of the manoeuvre that caused the injury.

Failed to instruct the plaintiffs to sit down and take a firm hold on one or more of the vessel’s fixtures as it approached the large waves.

Drove the vessel in a manner that exposed the plaintiffs to a risk of injury.

Failed to heed the handling characteristics of the vessel about which the defendant knew or ought to have known, and respond accordingly.

Failed to provide appropriate care to the injured passenger.

Paragraph 16 of the Statement of Claim pleaded as follows:

“Had the First Defendant operated and/or driven in an appropriate manner, and/or provided instructions to sit down and take a firm hold of the vessel’s fixtures, and/or provided an adequate restraining mechanism, and avoided approaching the swell at speed, the plaintiffs would not have been injured.”

The plaintiffs also pleaded that a contract existed between the plaintiffs and the defendants for the provision of a fishing service. The Statement of Claim pleaded that it was an implied term of the contract that the service would be provided with due care and skill and that the vessel would be fit for the purpose of a safe fishing charter.
The plaintiffs also pleaded that the contract was a contract for services within the meaning of the Australian Consumer Law (ACL) being Schedule 2 to the Competition and Consumer Act 2010 (Cth). The plaintiffs pleaded, and the defendants admitted, that the defendants guaranteed that the fishing charter would be provided with due care and skill pursuant to s 60 of the ACL, and would be fit for the purpose of a safe fishing charter pursuant to s 61 of the ACL.

Matters Admitted on the Pleadings

The Amended Defence admitted a large number of matters pleaded in the Statement of Claim. Those admitted matters were as follows:

At all material times, the defendants owned and operated an 8.2 metre long catamaran known as Nautikat which was used for the purposes inter alia of fishing charters offshore from Yamba in the State of New South Wales.

The defendants operated as a partnership with the business name “Yamba Fishing and Charters” which provided fishing tours marketed to Australian consumers and which were services within the meaning of the Australian Consumer Law (ACL) being Schedule 2 to the Competition and Consumer Act 2010 (Cth).

At all material times as the defendants were partners in a partnership, the first defendant and the second defendant are jointly and severally liable for the actions of each other pursuant to ss 9, 10 and 12 of the Partnership Act 1892 (NSW).

On 16 April 2017, the plaintiffs booked by phone with the defendants for a fishing charter, the particulars of which were:

Payment of $250 per person (elevated from $150 as they would be the only passengers on the charter);

Payment in cash on the day on return from charter; and

Fishing charter to take place on 17 April 2017.

On the morning of 17 April 2017, the plaintiffs attended the allocated pontoon in order to commence the tour.

During the course of the journey, the vessel proceeded through the coastal bar at the mouth of the Clarence River at Yamba.

Ms Short was standing on the aft deck of the vessel.

The defendants owed the plaintiffs a duty of care.

A contract existed between the plaintiffs and the defendants for the provision of a fishing service.

It was an implied term of the contract that the service would be provided with due care and skill and that the vessel would be fit for the purpose of a safe fishing charter.

The contract was a contract for services within the meaning of the ACL.

The defendants guaranteed that the fishing charter would be provided with due care and skill pursuant to s 60 of the ACL, and would be fit for the purpose of a safe fishing charter pursuant to s 61 of the ACL.

The Amended Defence denied allegations in the Statement of Claim concerning the circumstances of the accident in which Ms Short was injured.
In addition to pleading admissions, denials and non-admissions, the Amended Defence pleaded that the defendants relied upon ss 5F, 5G, 5H, 5I and s 5M of the Civil Liability Act 2002 (NSW) (the CLA).
The Amended Defence also pleaded contributory negligence. The allegations of contributory negligence included:

Failing to hold onto hand rails fixed to the vessel.

Failing to properly secure herself when approaching the coastal bar.

Jumping into the air while the boat was moving.

The Liability Evidence

Ms Short gave evidence that she was born in early 1975 and was 44 years old at the date of trial. She was a keen fisherwoman. She lived on the Gold Coast with her partner Mr Sartor. She used to regularly fish in the Tweed River or in Currumbin Creek. Ms Short had been out on a fishing boat at Noosa but had not experienced any heavy waves. Ms Short had been on two whale-watching trips, one at Sea World on the Gold Coast and the other at Hervey Bay. There were no waves on those trips. Hervey Bay does not have a bar, and while the fishing boat went through a bar at Noosa, there were no waves on that occasion.
Ms Short said that her understanding is that a bar is formed where a river meets the ocean. She was not aware of the characteristics of a bar in relation to the creation of waves. She had not been taught about bars in any of the boating courses she had done.
Ms Short had done a one-day boating course which was partly theory, and then involved operating a rubber dinghy with an outboard motor on a calm creek. She had later obtained a jet ski licence, which involved running up and down the river twice and understanding about going under bridges. She did not own a boat and she had never skippered a boat.
The plaintiffs stayed at the caravan park at Yamba in April 2017 for a short holiday. They went fishing in the river and then decided to make enquiries about doing an offshore fishing trip. Mr Sartor made telephone contact with Mr Bitton, which resulted in an arrangement to meeting at 6.00am on Easter Monday 17 April 2017 at the jetty at the caravan park.
The plaintiffs turned up a few minutes late and the Nautikat was already at the jetty. They boarded the vessel and after about a minute, it left the jetty to travel on the Clarence River. Ms Short said there was just enough time to get on board and put their esky down. Ms Short said that Mr Bitton did definitely not give any safety induction at that time. He did not give any risk warnings about the risks of the trip. He did not show Ms Short or Mr Sartor any written terms and conditions. Ms Short said that Mr Sartor was asked to write their names and phone numbers into a diary and that he did so. She said that there were no discussions at that stage about any safety issues.
As the vessel proceeded along the Clarence River towards the ocean Mr Bitton pointed out the presence of a Maritime Services boat near the rock wall on the northern side of the river. He said:

“Look, Maritime is up on the rock wall. You’re not allowed to be inside the cabin while we are crossing the bar. You’re going to have to hop out on the back deck, put your life vests on. Don’t worry about tying them on. As long as Maritime can see that you’re on the back deck with the life vests on.”

Ms Short said that at no stage did Mr Bitton tell her to hang on or tell her where she could hang on. He did not point out any handles or anywhere that she might be able to hold on. There was no seating pointed out at that stage.
As the vessel proceeded along the Clarence River towards the ocean Ms Short stood on the port side of the aft deck with her life jacket on but not fastened. Mr Sartor stood on the starboard side of the aft deck. In the centre of the deck was a large ice box which was a fixture. It did not have any handles on it. Where Ms Short was standing, facing forward, she had the inbuilt ice box on her right-hand side and on her left-hand side there was flat metal tray which was described as a bait tray. There was no handhold on that tray.
As the vessel made its way towards the ocean, Ms Short stood on the aft deck facing forwards with her right hand resting on top of the ice box and her left hand resting on the bait tray.
As the vessel approached the bar, Ms Short saw waves approaching. She remarked upon these waves to Mr Sartor, and he said: “It’s ok baby, they do this every day, you’ll be fine”. There were three waves approaching and the vessel increased its speed as it approached the waves. As the vessel went up and over the first wave, she tried to hang on and she lost her balance but was able to remain standing while bending her knees. The vessel went over the second wave and she crouched down even more to get lower to try to keep upright. Ms Short said that when the vessel got to the third wave the following happened:

“The third wave that’s when Glynn had accelerated and as we’ve gone over the third wave he had launched the boat out of the water and that’s when I totally – the boat was up and as the boat’s fallen I was not even standing any more. I ended up crashing.”

Ms Short said that there was nothing to hold onto and that she fell onto her left-hand side. After she fell over when the boat went over the third wave, Mr Bitton stopped the boat, and she remembers Mr Sartor screaming at Mr Bitton to get the boat out of the bar before another wave came. The boat took off and both she and Mr Sartor were still on the deck, having been thrown there when the boat went over the third wave.
Mr Bitton took the boat further out to sea and then stopped. He came back from the cabin and offered assistance to Ms Short, which included an ice pack and a bandage. He asked his passengers whether they wanted to go back to Yamba, but both said they wanted to proceed with the fishing trip. They did so for several hours.
Ms Short was cross-examined about liability matters. She said that Mr Sartor had bought a boat in the September before the accident and that she had been out on it with him about five times. The boat was only taken out when the weather was perfect. It was taken on The Broadwater and the Tweed River.
Ms Short acknowledged that she was aware that if she was standing on a boat in the ocean, the boat was going to move about because of waves. She said that was obvious. She acknowledged that it was important to keep a handhold to steady yourself on a boat in the ocean. She knew that it was possible that if you did not keep a hand hold you could lose your balance and fall over. She agreed that the bigger the wave the bigger the chance of that happening. She knew all of those things before the accident and said that those things were common sense.
It was suggested to Ms Short in cross-examination that Mr Bitton had told her and Mr Sartor what to expect when they went out on the boat. It was suggested that Mr Bitton told them that the bar can get a bit dangerous and that they might encounter some waves. Ms Short was adamant that Mr Bitton never said that. It was put to Ms Short that Mr Bitton told her that she would need to hold on, but again she was adamant that he did not say that. It was put to her that Mr Bitton had said that if she was thrown off the boat then she should stay in the centre of the channel rather than swim towards the rocks. Ms Short said that Mr Bitton never said those things to her. She said that there was never any mention of waves that might be encountered on the way out through the bar.
Ms Short was shown a document entitled “Terms and Conditions”. She said that this document was never shown to her or to Mr Sartor.
Ms Short was shown photographs of the aft deck of the boat, and it was suggested that rails which were outboard of the gunwale were appropriate handles that she could have held. Ms Short eventually accepted that the outboard rail could have been used as a handle.
It was put to Ms Short that Mr Bitton, at the time the life jacket was put on, had said:

“You need to put your life jacket on. Go out onto the back deck. There could be waves, you need to hold on.”

Ms Short said that she was told to go out on the back deck and put the life vest on, but there was nothing said about holding on.
When Ms Short was shown some of the CCTV video looking towards the stern of the boat, and showing her on the port side of the aft deck, she said that she could not see in the video what she was holding onto, but she guessed she was holding onto the “bait board” with her left hand.
As the waves approached, Mr Sartor said to her to “hold on”, and she looked around for something to hold onto, and put her hand onto the ice box but she could not grip it.
In cross-examination Ms Short said that Mr Bitton never showed her where any handle was or where she should stand or hold onto. She stood near the ice box, which was close to her.
It was put to Ms Short that she knew that there was a prospect of waves being met as the boat crossed the bar. She said that she did not think that at the time and did not think that there would be a series of waves. When she saw the first wave she tried to hold onto the ice box with her right hand but she could not recall what she held onto with her left hand. She thought that she must have held onto the bait tray, which was the flat metal tray on her left-hand side.
The first plaintiff Mr Sartor gave evidence. He was born in 1963 and was almost 56 years old at the date of the trial. He is a sheet metal worker by trade and he conducts a business manufacturing ducting for air conditioning ventilation. He and Ms Short live together, and have done so since the boating accident.
Mr Sartor said that he had owned a couple of boats. He had never been outside into the ocean in any of those boats with Ms Short. He had been boating with her on the Tweed River. Once the couple took their jet ski through the Currumbin bar and headed up to Surfers Paradise. On that day the Currumbin bar “was like a lake”.
Mr Sartor gave evidence about speaking to Mr Bitton on the telephone the night before the fishing charter. Mr Bitton said that because there was no-one else available to go on the charter, he would take the couple for $500. Mr Sartor agreed to that and an arrangement was made to meet at six o’clock the next morning at the pontoon at the caravan park.
Mr Sartor said that the couple were just making their way to the pontoon as the Nautikat arrived. They got on board. Mr Sartor said that at no stage prior to departing the pontoon did Mr Bitton give a safety briefing. He gave no warnings at all. He did not show a document marked “Terms and Conditions”. He did not give any risk warnings. He did not discuss the bar. Nor did he do any of these things between leaving the pontoon and the time when the accident happened. Mr Sartor remembered the vessel stopping so that the couple could stand on the back deck with their life jackets on. They were told by Mr Bitton “Don’t worry about doing it up and just hop on the back”. Mr Bitton told them that they were not allowed to be inside the cabin when they went through the bar.
Mr Sartor said that Mr Bitton did not mention anything about what to hold onto. He did not tell them to hold on tight. At that stage, when they moved to the back deck, the sea appeared “fine”. At no stage before they got to the waves did Mr Bitton give them any warning to hold on.
Mr Bitton did tell Mr Sartor a story about somebody falling out of a boat and then trying to swim to the rocks. That person ended up dying, when he should have just stayed in the channel and waited to be picked up. Mr Sartor said that this was just a general conversation, and not in any way a safety briefing.
Mr Sartor was never asked to sign a document, but he was asked to write his name and Ms Short’s name in a diary. He did so. While Mr Sartor was having his conversations with Mr Bitton, Ms Short was in and out of the cabin, often taking photos or making phone calls.
Mr Sartor said that he told Mr Bitton that he had owned boats himself.
As the boat approached the bar, Mr Sartor stood on the starboard side on the aft deck. With his right hand he held onto the outboard rail (outside the gunwale) and he rested his left hand on the ice box. There was no grip to be had on this ice box.

Mr Sartor had been out on fishing trips before, and he knew that he should hang onto a rail or sit down on a seat, where he could hold on. Mr Bitton did not make Mr Sartor aware that there were seats on the boat. These were folded up at the time the boat went through the bar.
Mr Sartor said that he had usually seen grab rails on the inside of the gunwale, but that the rails on the Nautikat were outside the gunwale. He did acknowledge that passengers could have held onto those rails.
Mr Sartor also saw the waves approaching and reassured Ms Short that “These guys know what they’re doing. They do it all the time”.
When he saw the first wave approaching he told Ms Short “Hang on tight”. The next thing he knew they were both flying through the air. On the third wave, Mr Sartor described the speed of the vessel increasing, saying “On the last wave he punched it and he give it a boot full”. Mr Sartor had the impression that the boat was 45 degrees out of the water and he thought that he heard the engines screaming because they were out of the water. He said that “the boat took off and I felt the boat fall from under us, and next thing I know I am flying through the air and just crashed to the bottom, crash to the floor of the boat”.
Mr Sartor said that Mr Bitton stopped the vessel and came back to them. He asked whether they were ok. Mr Sartor told him to get the boat moving and get out of the bar. Mr Bitton went back to the cabin and then took the vessel further out to sea. When it was calmer, the vessel stopped and Mr Bitton came back to render assistance to his two passengers.
In cross-examination Mr Sartor was asked why he did not hang onto the grab rail with both hands. He acknowledged that it is always better to hold on with two hands, but he was facing forward holding on with his right hand, and trying to hold onto the ice box with his left hand. He thought it best to be facing forward.
In cross-examination Mr Sartor denied that he was ever provided with a terms and conditions document. It was suggested that as the boat moved away from the jetty Mr Bitton provided a safety induction. Mr Sartor denied this. It was suggested that Mr Bitton said that as the boat went through the bar they might encounter some waves. Mr Sartor denied this. Mr Sartor denied that Mr Bitton ever said that there would be a need to hold on. He acknowledged that Mr Bitton did say that if he went overboard, he should stay in the middle and not swim towards the rocks.
Mr Sartor denied that Mr Bitton had said that there could be waves when going through the bar and it could be dangerous so hold on. Through prior experience Mr Sartor acknowledged that he knew they could encounter waves in going through the bar and that he would need to hold on to stabilise himself.
Mr Sartor was asked about saying to Ms Short to hold on tight, and he said that this was after he had been flung in the air by the first wave. He said that he was still holding onto the outboard grab rail with his right hand, but that even so he fell to the deck as the boat traversed the third wave.
Mr Bitton gave evidence that he and his wife ran the business Yamba Fishing and Charters out of Yamba. They had been doing so since January 2017. They purchased the Nautikat in October 2016. It was a Noosa Cat 31ft catamaran which was in 2C survey. As a result of that survey they could carry nine passengers. Mr Bitton had a coxswain’s ticket which enabled him to operate up to 15 nautical miles offshore in any conditions. He had obtained certification in relation to the Yamba bar by doing 10 crossings in and out when in command of the boat. Prior to the events of 17 April 2017 he had taken the Nautikat in and out of the bar about 50 times. He had never experienced any difficulties on any of those prior occasions.
He received a telephone call from Mr Sartor on 16 April 2017. He told Mr Sartor that he would check the conditions and ring him back. He would also have another look in the morning. On the morning of Monday 17 April 2017 Mr Bitton went to the main beach at Yamba and had a look down towards the bar which was about one nautical mile away. While it was dark, he could still make out the waves. He assessed that the conditions were suitable and he went and boarded the Nautikat and took her around to the pontoon. He waited for the plaintiffs to arrive.
Mr Bitton gave evidence that when the plaintiffs arrived, he introduced himself, they walked on and he shook hands. They brought their esky on board. He said that they then walked inside the cabin and he explained to them that the bars were there and that they were dangerous. He said that when going through the bar they had to be outside the cabin with life jackets on. He said that he showed them the terms and conditions document which was on the table. He said there was a log book to sign, they signed it and then they headed off.
Mr Bitton said that because there were only two passengers, it was a short induction. He said: “The bar’s been up, you’ve still got to hold on”. He gave them a standard speech about people going overboard, but that if that happened they should swim to the middle of the river.
The terms and conditions document was a laminated document which stayed on the boat. It was on the table and he asked them to look at it. He saw them reading through the terms and conditions.
Mr Bitton said that he always slowed down and stopped when he was near the starboard marker in the channel. This was to tell people to put their life jackets on and to stand on the aft deck, so that they could be seen by Maritime. He said that at this point there was another induction and he again told them to make sure they held on. He said: “Make sure you hold on, the bar can be dangerous after the conditions of the last two days”. Mr Bitton said that this induction happened in the cabin and then his two passengers went outside to put their life jackets on. They proceeded through the bar from there. He was travelling at about eight knots before he encountered any waves.
Mr Bitton said that when he got to the first wave he sort of slowed down a little bit. At the second wave he slowed down. At the third wave he “give it a little bit” meaning that he travelled faster so that he could get over the wave and not broach sideways. Increasing the engine speed did not change the speed of the boat, but it gave it “a little bit of a push” to enable the boat to get over the wave.
After he went over the third wave he noticed that his two passengers had fallen onto the deck. He stopped the boat. He asked whether they were alright. They said that they were and they told him to keep on going. He continued on out to sea and then stopped in calmer water to attend to his passengers.
Mr Bitton acknowledged that Roads and Maritime Services (RMS) fined him $500 because his passengers were not wearing life jackets. There was an RMS improvement notice issued to him to update his Safety Material Data Sheet, to deal with bar crossings.
Mr Bitton was cross-examined. He acknowledged that different bars had different characteristics and it was important to understand the particular bar that a vessel was to cross. He accepted that a person looking out to sea going on a fishing expedition, who didn’t know much about bars, would not understand what they may be facing. He acknowledged that as a charter operator it was important to inform his passengers what to expect, particularly when crossing the bar. He said that it was important to tell passengers where to hold on, to alert passengers of the approach of the waves, to make sure that before crossing the bar the passengers were secure and that they were holding on. As the master of the vessel he acknowledged that he was in total command and that he had complete responsibility for the welfare and safety of his passengers. He did say that once he was inside the cabin driving the boat and the passengers were out on the aft deck, he had no control over them. He could not stop and look back, as he had to keep on going. However, he did say that it was proper to check that passengers were holding on where he had instructed them to hold on. He also agreed that it was essential on a fishing trip to have a safety briefing. In addition, he understood that it was the law.
Mr Bitton was taken in cross-examination to condition 7 in the terms and conditions document, which said:

“Check in at the boat at least 30 minutes prior to the scheduled departure time. This is to allow sufficient time for our safety induction prior to departure.”

He agreed that the safety induction was supposed to happen before departure. He also agreed that his SMS required that passengers joining the vessel should be inducted pre-departure. When interviewed by NSW Maritime, he said that the safety induction took about four minutes. In cross-examination he said that in addition to the four-minute safety induction, there needed to be time allowed for people to read the terms and conditions. That would have taken about two and a half minutes.
The CCTV looking towards the stern of the vessel was shown to him in cross-examination. It was suggested that the plaintiffs boarded the craft at 6:03:07am. The video showed him then securing the gate and the vessel left shortly after 6:03:45am.
It was put to him that there was no available time between the plaintiffs boarding the vessel and the vessel leaving the pontoon for him to conduct a safety induction as he said that he did. He insisted that he did do the induction. However, he then said:

“It looks like I never done it on the day. I am doing now, as they’re talking. I got four knots all the way down. It’s a long to the boat.” [sic]

By this answer, Mr Bitton was attempting to say that he did not do the safety induction before departure, but that he carried it out while travelling down the Clarence River. It was pointed out to him in cross-examination that he had told RMS in his Record of Interview that he did the safety induction at the caravan park pontoon. When it was suggested in cross-examination that he did not do it, he went back to saying that he did do it there. He then said: “It’s still at Calypso [the caravan park], I was doing it then, or as we were motoring off, I am doing it then”.
It was pointed out that this segment of the video showed that at the pontoon Mr Sartor and Mr Bitton were in the cabin but that Ms Short was on the aft deck.
Mr Bitton was shown the portion of the video where the boat was approaching the bar with Ms Short on the port side of the aft deck and Mr Sartor on the starboard side. He was asked to observe how they were holding on. He said (T 187/30-50):

“Q. What position did you see they had assumed?
A. They were on both – one’s – one on port and one’s on the starboard of the boat.
Q. How were they holding on?
A. With their hands.
Q. To what?
A. To the rail.
Q. Both hands on the rail?
A. Looking at the video, no but - -
Q. What were they doing?
A. They were doing what they wanted to do, not the right thing by holding on properly.
Q. If that’s what they were doing, what should you have done?
A. There was no way of returning, or turning around at that stage. If they’re not holding on properly, we’d just keep on going.”

Mr Bitton was asked whether it was satisfactory for a passenger to have one hand on the rail and the other hand on the edge of the ice box. He said: “No, they should be holding onto the rail, yes”.
It was suggested in cross-examination that there was an alternative which would have been to sit on the folding seat. He disagreed, saying that there was more chance of hurting yourself sitting on a seat than standing up.
He said that it was not satisfactory that the plaintiffs were holding their hands out sideways because this provided very little assistance for the vertical up and down movement they experienced when crossing the waves. However, he said that: “They are very experienced people”.
It was put to Mr Bitton that the journey occurred on an ebb tide, when water was coming out of the estuary and meeting the ocean, which created a pressure wave. He agreed with that. He did not agree that after the ebb tide conditions would have been more benign. He said: “We left two hours before low tide and it’s the perfect time to go through the bar”.
Attention was drawn to a NSW Maritime document entitled “Coastal Bar Safety: A Guide to Crossing Coastal Bars”. This document said:

“An incoming tide is always safer. If possible, time your day at sea to coincide with a rising tide before leaving and entering the port… Avoid crossing bars on an ebb or run out tide”.

Mr Bitton acknowledged that he was crossing the bar on an ebb or run out tide. He acknowledged that he could have said to Mr Sartor that they could leave a bit later. He did not consider doing that. He could not offer a reason why he did not do that.
Mr Bitton was cross-examined about his two passengers falling onto the deck. He said that Mr Sartor had told him that he jumped up in the air as he was going over the wave. He said that Mr Sartor was not thrown into the air but he deliberately jumped into the air. It is to be noted that this allegation was never put to Mr Sartor in cross-examination. He acknowledged that Ms Short fell sideways onto the deck and that she had been thrown to the deck through the boat dropping when it went over the third wave.

The CCTV Footage

The Nautikat was equipped with three CCTV cameras. Camera 1 faced towards the rear of the vessel on the starboard side. Camera 2 faced towards the rear of the vessel on the port side. Camera 3 faced towards the bow of the vessel, looking through the windscreen of the cabin and across the foredeck on an angle.
The plaintiff tendered a USB stick containing nine CCTV files. Many were of no relevance, as they were footage taken while the vessel was out at sea during the fishing part of the trip. The relevant CCTV files were labelled as follows:

USB 1 showed the view from camera 2 (towards the aft on the port side) from 6.00am until 7.00am.

USB 2 showed the view from camera 1 (looking towards the aft on the starboard side) from 6.00am to 7.00am.

USB 8 showed the view from camera 3 (looking towards the front of the vessel) from 6.00am to 7.00am.

USB 9 showed the vessel returning to Yamba between 2.00pm and 3.00pm, looking towards the aft on the starboard side.

USB 9 was not shown to any of the witnesses, nor was it the subject of any submissions. However, it was part of the material tendered, and so it was viewed in chambers. It shows the Nautikat coming back in through the Yamba bar shortly after 2.00pm. The vessel is travelling at some speed. The two plaintiffs are sitting on the starboard side of the boat. The seat on the starboard side has been folded down and they are sitting on it. They both have life jackets on. Both are leaning forward from the seat and holding on to the outboard rail with both hands. Neither appears to be thrown around. As they get through the bar and into the estuary, they take their hands off the outboard rail. They are then in calmer water. It is impossible to discern from simply watching the video what the conditions of the sea were like, and in particular whether there were any waves which had to be met and traversed by the vessel.
The matter was relisted on the Court’s own motion on 11 October 2019. The relevant portion of USB 9 was played. Counsel were asked what they wanted to do about USB 9, which was not played during the trial, or shown to the witnesses, or the experts. The additional evidence and submissions concerning USB 9 are dealt with below.
The CCTV footage on USB 3, USB 4, USB 5, USB 6 and USB 7 has been viewed quickly but not in detail, as it appears to relate to other parts of the journey not the subject of any controversy or evidence.
USB 2, shows the view from camera 1 (looking towards the rear on the starboard side). It gives the best view of the plaintiffs boarding the vessel and the departure from the jetty. It commences at 05:59:58am. The following events can be seen on that CCTV footage:

At 06:00:06 the vessel is stationary, presumably tied to the caravan park pontoon.

At 06:01:00 Mr Bitton walks to the rear of the boat and attends to something at the rear.

At 06:01:23 the outboard motors of the vessel swing around and the stern of the boat appears to move towards the starboard direction.

At 06:02:40 Mr Bitton opens a gate on the starboard side of the vessel, looks at his watch and appears to be speaking to his passengers who are out of frame to the left, about to board.

At 06:03:00 Ms Short boards the vessel.

At 06:03:10 Mr Sartor boards the vessel.

At 06:03:18 Mr Bitton shuts the starboard gate.

At 06:03:30 the outboard motors at the rear of the vessel swing around and the propellers create some disturbance in the water.

At 06:03:50 Ms Short walks onto the starboard side of the aft deck and uses her phone to take photographs.

At 06:04:00 she steps forward and shakes hands with Mr Bitton. She then goes back to taking photographs, while standing on the aft deck.

At 06:04:25 the vessel appears to move forward and away from the pontoon.

At 06:04:55 Ms Short appears again on the aft starboard deck for about 10 seconds.

At 06:05:45 Ms Short appears again on the aft starboard deck and appears to type into her phone.

At 06:06:30 Ms Short leaves the aft deck.

USB 1, showing the view from camera 2 (looking aft on the port side) gives the best view of what happened to Ms Short during the trip through the bar. The following events can be seen on that CCTV footage:

At 06:13:56 Ms Short walks onto the aft deck on the port side, wearing a life jacket which is not done up.

At 06:14:10 Ms Short places her right hand on the front of the ice box and her left hand out of view of the camera, towards the front of the bait tray.

At 06:14:30 Ms Short leans back against the bait tray, holding onto the tray with both hands, and faces the centre of the aft deck.

At 06:15:11 the boat appears to go over a wave. Ms Short turns to face the front of the boat leaving her left hand on the bait tray and reaches towards the ice box with her right hand. She appears to momentarily lose her balance but remains upright.

At 06:15:48 the boat goes over another wave. There is a look of surprise or consternation on Ms Short’s face. She continues to hold onto the ice box on the right and the bait tray on the left.

At 06:15:57, the boat goes over the third wave. Ms Short loses her grip with her left hand and her right hand remains on the top of the ice box. She falls rapidly to the deck and out of sight of the camera. The breaking wave can be seen to roll behind the boat.

By 06:16:10, the boat has stopped in choppy water. Ms Short is still on the deck.

At 06:16:25, the boat takes off again at some speed. Ms Short is still on the deck.

Additional material in relation to USB 9

After the matter was re-listed on 11 October 2019 the parties were given the opportunity to consider their position. The following additional material was put before or advised to the court:

A statement of Ms Short dated 15 October 2019, which was sent to the court on 5 November 2019. This has been marked as Exhibit PX3.

There was no requirement for Ms Short to give oral evidence or to be cross-examined on her additional statement.

The defendants did not wish to put on any further evidence.

Neither party wished to call any further evidence from the experts.

Written submissions for Ms Short dated 4 November 2019 were sent to the court. These have been marked as MFI 12.

Written submissions for the defendants dated 15 November 2019 were sent to the court. These have been marked as MFI 13.

In her written statement dated 15 October 2019 Ms Short said (omitting formal parts):

“2 I was not aware of the existence of the seats on either side of the vessel at any time before we crossed the Clarence Bar on the morning of 17 April 2017, as they were fastened in the upright position against the icebox in the centre of the vessel.

3   The seat was only released from the upright position after we had crossed the Clarence Bar, so that we could sit down whilst we fished.
4   The seat was not returned to its upright position when the skipper began to operate the vessel back to the Calypso Caravan Park Jetty that afternoon, so Robert Sartor and I remained seated for the journey in.
5   At no time did the skipper direct us to remain seated or tell us to assume a standing position.
6   When the vessel approached the Clarence Bar that afternoon on the return trip, I reached forward from my seated position and clasped onto the rail that hung over the outside of the boat with both hands.
7   In this position, I had my feet planted firmly on the deck of the boat, my bottom on the seat in its folded down position and my hands on the rail in front of me.
8   I recall that Robert Sartor was beside me and secured himself similarly whilst we returned through the Clarence Bar that afternoon toward the Calypso Caravan Park Jetty.
9   At no stage were we told to sit and secure ourselves in this manner and I only thought to do so after the seats had been dropped down, after we crossed the bar earlier that morning.”

Findings of Fact on Liability

The credit of Ms Short was challenged in cross-examination, both in relation to liability issues and in relation to quantum. Counsel for the defendant submitted that Ms Short’s answers in cross-examination were “evasive and self-serving”. There is some force in the criticism of Ms Short’s credibility in relation to matters of quantum. This is dealt with below.
In relation to liability, counsel for the defendant, in his written submissions (MFI 11), submitted as follows:

“8.   The defendants submit that the plaintiff’s credibility is very much in issue. Her answers in cross-examination were evasive and self-serving. She did not fully disclose her true pre-accident medical issues to various medico-legal specialists.
9.   For example, in her evidence in chief, when describing the railing on Sartor’s side of the vessel, she volunteered it to be ‘a handle’ (T35.44), yet in cross-examination when asked about the exact same part of the vessel, refused to accept that it was a handle (T94.22 onwards). When confronted with this on the second morning of her evidence, she could provide no explanation (T103.05 onwards). Her evidence was that she simply could not recall saying that.
10.   The plaintiff was initially not prepared to make the obvious concession that holding onto a metal rail, gripping it completely with her hand would provide more stability than placing her hand flat on a tray (T104.41), before eventually making such a concession (T105.02).
11.   In cross-examination, initially the plaintiff was not prepared to concede that she could see more than one wave approaching (T108.10 onwards), notwithstanding her evidence in chief of seeing waves plural (T29.44).
12.   When confronted with the statement she provided to Roads & Maritime Services in which she described seeing ‘some massive waves’, she eventually conceded having seen a number of waves approaching (T111.17 onwards).
13.    The plaintiff was not prepared to make the simple concession that the rails on the gunnels on her side of the vessel were identical to the rails on Sartor’s side of the vessel (T112.10 onwards). When it was squarely put to her that the railing on each side of the boat was identical, regardless of rod holders attached to the railing, she stated that she was ‘not an engineer. I can’t comment on that’ (T115.08).

In relation to the outboard rail on the port side of the vessel, I have come to the view that Ms Short could have held onto that rail while the vessel negotiated the bar. I accept the criticism of Ms Short’s evidence in relation to the rail.
In relation to the number of waves which Ms Short could see approaching the vessel, I find that she saw several waves approaching and not just one. A viewing of the CCTV alone establishes this. Ms Short can be seen looking towards the oncoming waves with some consternation.
What is set out above constitutes the only criticism made of Ms Short in relation to her answers on the topic of liability and what happened in the accident. Most of the evidence of Ms Short concerning the accident was corroborated by the evidence of Mr Sartor. His credit was not challenged. Further, while certain aspects of the evidence of Ms Short in relation to the accident itself were challenged, much of her evidence relating to liability was not the subject of any challenge or criticism.
The credit of Mr Bitton was also challenged. In particular, his evidence about giving an induction to his passengers and providing warnings to them, at the jetty, was the subject of the following submission set out in MFI 12:

The CCTV footage showed that from the time Mr Sartor and Ms Short joined the boat there was only about 10 seconds before it left the jetty. It was simply not possible for a safety induction to take place in that time.

The defendant was incorrect in his evidence when he said that a safety induction took place before departure from the jetty.

In spite of the objective evidence contained in the CCTV footage, Mr Bitton continued to insist that he had given the safety induction to his passengers before the vessel left the jetty. That was simply impossible, and I find that the evidence of Mr Bitton in that regard was false and was made up on the spot.
My doubts about the credibility of Mr Bitton extend to his evidence that at some point during the journey towards the bar he warned the passengers about the dangers of the imminent crossing. Mr Bitton’s evidence that he told his passengers to stand on the aft deck and put their life jackets on but not do them up, so that Maritime could see them, reflects badly on him as a skipper. If there is a risk in crossing the bar and passengers need life jackets, they should have been told to do them up. Putting them on but not doing them up indicates a lackadaisical attitude towards safety on the vessel. Mr Bitton paid a fine imposed by RMS because his passengers were not wearing life jackets.
Further, it defies belief that Mr Bitton gave a second safety induction, during which he asserted that he said: “Make sure you hold on, the bar can be dangerous after the conditions of the last two days”, and yet he told his passengers not to do their life jackets up. If he really told the plaintiffs at that point that the bar could be dangerous, he would have also told them to do up their life jackets.
Counsel for Ms Short pointed out in written submissions (MFI 12) that Mr Bitton had given evidence that he made sure that his passengers were safely secured, then he stated they were not holding on properly, and then he stated they were fine the way they were holding on (MFI 12), par 36. This sort of prevarication was a feature of Mr Bitton’s evidence.
Mr Bitton said that Mr Sartor had told him that he (Mr Sartor) deliberately jumped up in the air as the vessel crossed the waves. This was a factual assumption put to the defendant’s expert, obviously based upon Mr Bitton’s instructions. It was, quite properly, not an allegation even put to Mr Sartor in cross-examination. It was a fanciful concoction by Mr Bitton.
Mr Bitton said that both plaintiffs were very experienced people. He offered this as a reason why he did not say anything to the plaintiffs about the unsatisfactory way they were both holding on. All Mr Sartor told him was that he had owned recreational boats. A professional skipper would have probably treated such statement as a red flag rather than a comfort. Of course Ms Short told him nothing at all about her experience with boating.
I formed an unfavourable impression concerning the evidence of Mr Bitton about the giving of a safety induction, the reading of terms and conditions, any instruction as to whether and how the passengers should hold on during the crossing of the bar, and any warning given to passengers about what they might expect as the vessel crossed the bar. I do not accept the evidence of Mr Bitton on any of these matters.
I make the following findings of fact on liability:

By a telephone call made by Mr Sartor to Mr Bitton on 16 April 2017 it was agreed that the defendants would take the plaintiffs on a fishing charter on the Nautikat on 17 April 2017 for a price of $500.

Ms Short had very limited experience with boats and had no experience with boats negotiating waves or river bars.

Ms Short was not aware of the characteristics of a river bar or the risk of encountering waves as a vessel crossed a bar.

The plaintiffs arrived at the pontoon at the caravan park and met the Nautikat, skippered by Mr Bitton, at 6.00am on 17 April 2017.

Within less than a minute of the plaintiffs boarding the vessel it departed from the pontoon.

For part of this short time Ms Short was on the aft deck of the vessel and was not in the cabin.

Mr Bitton did not give a safety induction to the plaintiffs when the vessel was at the pontoon.

Mr Bitton did not show any written terms and conditions to the plaintiffs at that time or at any later time.

Different bars have different characteristics and it was important to understand the particular bar that a vessel was to cross.

A person looking out to sea going on a fishing expedition, who didn’t know much about bars, would not understand what they may be facing.

As a charter operator it was important for Mr Bitton to inform his passengers what to expect, particularly when crossing the bar.

It was important to tell passengers where to hold on, to alert passengers of the approach of the waves, to make sure that before crossing the bar the passengers were secure and that they were holding on.

As the master of the vessel Mr Bitton was in total command and had complete responsibility for the welfare and safety of his passengers.

Mr Bitton did not warn or advise the plaintiffs at that time or at any later time that the vessel might encounter large waves when crossing the bar.

Ms Short had no knowledge or understanding that the vessel might encounter large waves when crossing the bar.

Mr Bitton did not warn or advise the plaintiffs at that time or at any later time that they would need to keep a firm hold when crossing the bar.

Ms Short had no knowledge or understanding that she would need to keep a firm hold when crossing the bar.

Mr Bitton did not warn or advise the plaintiffs at that time or at any later time how they should hold on when crossing the bar.

Ms Short had no knowledge or understanding of how to keep a firm hold when crossing the bar.

Mr Bitton asked Mr Sartor to write the names of the plaintiffs and their phone numbers into a diary and Mr Sartor did so.

After the vessel left the pontoon and before it reached the Maritime boat near the rock wall on the northern side of the river, there was no safety induction given by Mr Bitton to the plaintiffs.

After the vessel left the pontoon and before it reached the Maritime boat near the rock wall on the northern side of the river, there was no explanation given by Mr Bitton of the bar or its characteristics.

After the vessel left the pontoon and before it reached the Maritime boat near the rock wall on the northern side of the river, there was no no instruction given by Mr Bitton that there would be a need to hold on when crossing the bar.

After the vessel left the pontoon and before it reached the Maritime boat near the rock wall on the northern side of the river, there was no explanation given by Mr Bitton as to how the plaintiffs should hold on while crossing the bar.

As the Nautikat approached the Maritime vessel Mr Bitton instructed the plaintiffs to stand on the aft deck in view of the Maritime boat and to put their life jackets on but not to do them up.

As the Nautikat continued past the Maritime boat Mr Sartor stood facing forward on the starboard side of the aft deck and Ms Short stood facing forward on the port side of the aft deck.

In between them was a fixed ice box which did not provide any handhold.

As Ms Short stood facing forward on the port side of the aft deck her right hand was resting on the top of the ice box and her left hand was resting on a metal bait tray. Neither provided any handhold for her.

There were folding seats along both sides of the icebox, which were clipped in an upright position.

Mr Bitton did not draw the existence of these seats to the attention of the plaintiffs and they were not aware of them.

The Nautikat was leaving the estuary and traversing the bar on an ebb tide which meant that the vessel could encounter pressure waves.

As the Nautikat approached the bar, both plaintiffs saw waves approaching.

The Nautikat went over the first wave at 06:15:11am. Ms Short was facing forwards with her left hand on the bait tray and she reached towards the icebox with her right hand. Ms Short appeared to momentarily lose her balance but she remained upright.

The Nautikat continued through rough water until the next wave.

At 06:15:48am the Nautikat went over the second wave. There was a look of surprise or consternation on the face of Ms Short. She continued to have her right hand on the top of the ice box and her left hand on the bait tray.

At 06:15:57am, the Nautikat went over the third wave. Ms Short lost her grip with her left hand and her right hand remained on top of the ice box. She fell rapidly to the deck and out of sight of the CCTV camera. The breaking wave can be seen to roll behind the boat.

At 06:16:10am the Nautikat stopped in choppy water. Ms Short was still lying on the deck. Mr Sartor told Mr Bitton to keep going and get out of the bar.

At 06:16:25am the Nautikat took off again at speed. Ms Short was still on the deck.

After travelling some distance and clearing the bar the Nautikat stopped in calmer water and Mr Bitton gave medical assistance to his injured passenger.

The Nautikat then proceeded out to sea and for several hours the plaintiffs fished from the vessel.

Mr Bitton unclipped the folding seats and the plaintiffs sat on them to fish.

Shortly after 2.00pm the Nautikat came back in through the bar from the sea.

The two plaintiffs were sitting on the folded down seat on the starboard side of the vessel.

As the vessel came in through the bar both plaintiffs had their life jackets on. Both plaintiffs were leaning forward while sitting on the seat and holding onto the outboard rail with both hands. Neither plaintiff appeared to be thrown around as the boat came back through the bar.

Each plaintiff had five points of contact with the vessel. Their feet were on the deck. Their bottoms were on the seat. Their hands gripped the outboard rail.

Mr Bitton did not give the plaintiffs any advice about how they should hold on to come back through the bar. The plaintiffs worked this out for themselves.

After the boat cleared the bar and entered the estuary both plaintiffs took their hands off the outboard rail when they were in calmer water.

Expert Evidence on Liability

A considerable amount of evidence was given by the plaintiff’s expert Mr Peter Burge and the defendants’ expert Captain David Pyett. Rather than review all of the evidence, I will confine my analysis of the expert opinion to those matters which are relevant in the light of the above factual findings.
Firstly, the experts produced a conclave report dated 5 July 2019. They agreed upon the following matters:

It was the last of the ebb tide when the Nautikat crossed the bar and it was approaching low water.

The wind conditions were light but the wind direction is not known.

The master of a vessel crossing such a bar should anticipate large waves in any conditions, particularly on an ebbing tide and at low water. The master should take into account the local prevailing conditions and be guided by the Roads and Maritime Services Coastal Bar Safety Guide.

The safety instructions which should have been provided to the passengers on board the Nautikat on 17 April 2017 were:

Anticipate large waves and a rough ride.

Remain outside the cabin on the aft deck.

Hold on tight.

Don and fasten your life jackets.

Read all the safety notices.

The experts disagreed about whether there were adequate safe hand holds, about whether the master of the vessel complied with reasonable practices of good seamanship, and about whether the master complied with relevant maritime safety standards. The experts were unable to agree on these matters because they had been asked to assume different sets of facts.

Negligence and Breach of Statutory Warranty

The provisions of s 5B of the CLA apply to both the claim in negligence and the claim under the ACL – Motorcyling Events Australia Group Pty Ltd v Kelly [2013] NSWCA 361 at [150].
Section 5B of the CLA provides:

“General Principles
(1)   A person is not negligent in failing to take precautions against the risk of harm unless:
(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)   the risk was not insignificant, and
(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)    In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)   the probability that the harm would occur if care were not taken,
(b)   the likely seriousness of the harm,
(c)   the burden of taking precautions to avoid the risk of harm,
(d)   the social utility of the activity that creates the risk of harm.”

Paragraph 14 of the Statement of Claim pleaded the risk as follows:

“There was a foreseeable and not insignificant risk that the plaintiffs would suffer injury were the vessel to become sufficiently airborne and collide with the water in circumstances where there was inadequate protection and warning.”

In written submissions counsel for Ms Short (MFI 10, par 42) put the risk of harm as follows:

“The relevant risk of harm is that the plaintiff may suffer injury if the vessel crosses the bar when she is not adequately secured within the vessel and/or the vessel fails to negotiate the waves at an appropriate speed and angle, and/or the crossing is made at an inappropriate tidal time.”

While the defendants admitted in their Amended Defence that they owed the plaintiffs a duty of care, there was no formulation by the defendants of the nature of the duty, or the risk of harm, in either the Amended Defence or the defendants’ written submissions.
I prefer and adopt the description of the risk of harm set out above from the plaintiff’s written submissions. The duty of the defendant was to take precautions against such risk of harm.
In written submissions (MFI 11, par 134) the defendants conceded, subject to other defences available under the CLA that in crossing the bar there was a risk that Ms Short would suffer harm, which was foreseeable, and that the risk of suffering harm was not insignificant.
That left a contest on the question of identifying what precautions ought to have been taken by a reasonable person in response to that foreseeable risk and whether there was any failure on the part of the defendants to take those precautions.
Counsel for the defendant distilled the 11 particulars of negligence in the Statement of Claim down to four issues (MFI 13, par 136). He submitted that the alleged breaches fell into the following categories:

Whether it was appropriate to attempt the bar crossing at the time the first defendant did so;

Whether the first defendant provided an appropriate safety induction and risk warning;

Whether there were appropriate handholds available; and

Whether the vessel was travelling at an excessive speed as it traversed the three waves.

Having re-read the 11 particulars of negligence in the Statement of Claim, I accept the submission of counsel for the defendant that they can be distilled down to the four issues identified above.

Timing of the Bar Crossing

Mr Bitton conceded that he commenced the journey upon an ebb tide. The experts agreed that while the master of a vessel crossing a bar should anticipate large waves in any conditions, this was particularly so on an ebb tide. It was also agreed by the experts that the master should take into account the local prevailing conditions and be guided by the RMS Coastal Bar Safety Guide. This document was in evidence (PX 1, Tab 10). It said:

“Crossing coastal bars is a common but dangerous part of boating. Each year boats are damaged and people killed or injured when bar crossings go wrong.”

Under the heading “Tips” on p 93 the document said:

“• An incoming tide is always safer. If possible, time your day at sea to coincide with a rising tide both leaving and entering the port.
• Avoid crossing bars on an ebb or run out tide.”

Mr Bitton conceded that he could have delayed the start of the journey by an hour or so, and then he would not have been crossing the bar on an ebb tide. However, Mr Bitton did look at the bar from a vantage point and assessed that it was safe to cross. Further, the experts agreed that large waves could be encountered at any time. While it was not ideal to cross the bar on an ebb tide, there was no prohibition upon Mr Bitton doing so, providing that he took appropriate precautions for the safety of his passengers. The greater likelihood of waves in the bar on an ebb tide made the provision of adequate warnings and instruction even more important. I find that attempting to cross the bar at the time Mr Bitton did so was not negligent.

Whether Mr Bitton provided an appropriate safety induction and risk warning

It can be seen from the findings of fact recorded above that Mr Bitton provided neither. The experts agreed that there were five elements which should have been included in any safety instructions provided to passengers. They were:

Anticipate large waves and a rough ride – Mr Bitton failed to say these things to the plaintiffs and Ms Short was not aware of these matters;

Remain outside the cabin on the aft deck – Mr Bitton did say this.

Hold on tight – Mr Bitton did not say this to the plaintiffs and Ms Short did not know that she had to hold on tight.

Don and fasten your life jackets – Mr Bitton only gave half of this warning to the plaintiffs, and indeed told them not to do up their life jackets, which was contrary not only to the evidence of the experts, but to the RMS requirements.

Read all safety notices – Mr Bitton did not say this to the plaintiffs, but there was no evidence of any safety notices to which attention could have been drawn.

I have already found that Ms Short was inexperienced in boating and in particular knew nothing about the risks she might face when the vessel crossed the bar. I have also found that:

Different bars have different characteristics and it was important to understand the particular bar that a vessel was to cross.

A person looking out to sea going on a fishing expedition, who didn’t know much about bars, would not understand what they may be facing.

As a charter operator it was important for Mr Bitton to inform his passengers what to expect, particularly when crossing the bar.

It was important to tell passengers where to hold on, to alert passengers of the approach of the waves, to make sure that before crossing the bar the passengers were secure and to make sure that they were holding on.

As the master of the vessel Mr Bitton was in total command and had complete responsibility for the welfare and safety of his passengers.

Mr Bitton did not warn or advise the plaintiffs at that time or at any later time that the vessel might encounter large waves when crossing the bar.

Ms Short had no knowledge or understanding that the vessel might encounter large waves when crossing the bar.

Mr Bitton did not warn or advise the plaintiffs at that time or at any later time that they would need to keep a firm hold when crossing the bar.

Ms Short had no knowledge or understanding that she would need to keep a firm hold when crossing the bar.

Mr Bitton did not warn or advise the plaintiffs how they should hold on when crossing the bar.

Ms Short had no knowledge or understanding of how to keep a firm hold when crossing the bar.

I find that a reasonable person in the position of Mr Bitton would have taken the precaution of providing an appropriate safety induction and a risk warning. Mr Bitton failed to take such reasonable precautions and, subject to matters considered below, that led to Ms Short falling to the deck and injuring herself as she was not keeping an appropriate hold as the vessel crossed the three waves in the bar. Subject to matters considered below I therefore find that the defendants were negligent as alleged, in failing to provide an appropriate safety induction and risk warning.

Whether appropriate hand holds were available

I accept the submission of counsel for the defendant that it would have been possible and desirable for both passengers to hang on with both hands to the outboard rails. Mr Sartor was hanging on to the starboard rail with his right hand, but had his left hand on the top of the ice box. He was flung to the deck, so having only one hand on the rail was insufficient. Ms Short, through lack of any warning or instruction given by Mr Bitton, did not have hold of any rail as the boat crossed the waves in the bar. Aft of the bait tray there was an outboard rail which was available for passengers to hold on to. Of course, on the findings I have made, Ms Short had no idea that she should be holding on to that or that she would face danger if she were not properly holding on.
I find that there were appropriate hand holds available and that there was no negligence in taking passengers out on the Nautikat with its physical configuration. The negligence is, as recorded above, in not telling the passengers to hold on to the hand holds which were available.

Whether the vessel was travelling an excessive speed

The experts were unable to say what speed the vessel was doing as it crossed the waves. The RMS Coastal Bar Safety document referred to above says the following about going out through a bar (p 95):

“Going out
When heading out, remember you will experience a clash of forces. The outgoing boat must meet the energy of the breaking sea. Minimising these clashes makes things safer for you and the boat.
The main technique is:
•   Idle towards the breaking waves, carefully watching for any lulls. If a flat period occurs, apply the throttle and run through.
•   If the waves just keep rolling in, motor to the surf zone and gently accelerate over the first piece of water, then apply more power and run to the next wave. Time this carefully, don’t go too fast or you may get airborne on the next wave and lose control of your vessel.
•   Back off the power just before you contact with swell. As you come through or over the breaker, accelerate again and repeat the process until well clear of the break zone.
•   Head for the lowest part of the wave (the saddle). This is the last part of the wave to break.
Don’t
•   Hit a wave face with the power on. The boat can become airborne or throw the crew into the windscreen, dashboard or floor.
•   Lose your nerve. Once committed, keep going forward. You may be swamped if you try to turn around at the last moment.
•   Go through the waves at an angle. Try to take waves as close to head-on as possible or up to 10 degrees either side.”

As Mr Bitton drove the Nautikat towards the three approaching waves, he accelerated to get up the face of each wave. As the boat crested each wave, it came down heavily on the other side. I reject the suggestion made by Mr Sartor in particular that the propellers of the boat came out of the water on the third wave and that the boat became airborne. The CCTV footage does not bear this out. Nor did the experts. No doubt there was a violent collision between the hull of the boat and the water after the boat topped the wave and came rapidly down the other side.
Mr Bitton was committed to accelerating into each wave and taking them head-on, and I cannot find on the evidence that he was negligent in the way in which he drove the boat through the waves.
I therefore find that Ms Short has established on the balance of probabilities that the following particulars of negligence, which are also particulars of breach of statutory warranty, are made out:

Particular (1) failed to provide a safety induction to his passengers.

Particular (8) failed to instruct Ms Short to sit down and take a firm hold on one or more of the vessel’s fixtures as it approached the large waves.

Because no-one looked at the CCTV of the boat coming back in through the bar at 2.00pm, and because the experts were not asked about it, I am left in the position of being asked to make findings about the way in which the plaintiffs were sitting during that passage. I have already recited that by sitting on the seat, each plaintiff had five points of contact with the vessel. There were able to lean forward and hold on to the rail. It is most unfortunate that the attention of the experts was not drawn to this footage, as I would have been assisted by their views as to whether that would have been an appropriate method of holding on when the vessel was on the outbound journey. My intuitive view is that it would have been a safe method of holding on, but I do not need to make a finding in that regard.
I have already found that, whatever be the appropriate method of holding on, the plaintiffs should have been advised to hold on properly, and they were not so advised. Through the negligence of Mr Bitton Ms Short was basically left to stand on the deck with no hold taken on either side of her body, as the vessel negotiated the waves. Having not been given any advice that bars could be dangerous or that there could be large waves at any time, and having not been told how to hold on, let alone that she should hold on, it is unsurprising that Ms Short simply stood on the deck with one hand on the ice box and one on the bait tray. In doing so she was in a position of great danger, and the reason she was in that position of danger was due to the negligence of Mr Bitton.

Causation

Section 5E of the CLA says that the plaintiff always bears the onus of proof on the balance of probabilities of any fact relevant to the issue of causation. Section 5D of the CLA provides as follows:

“(1)   A determination that negligence caused particular harm comprises the following elements:
(a)   that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).”

Counsel for the defendant submitted (MFI 11, par 145) that Ms Short herself saw the large waves approaching and accordingly any failure to instruct her to anticipate large waves or to hang on would not be relevant. Counsel pointed out that Mr Sartor told Ms Short to hang on tight as he saw the waves approaching. Counsel asked rhetorically: “What difference would it have made had the first defendant advised Ms Short to hold on, in circumstances where her partner, experienced in boating, had done so in any event?”
That submission ignores the fact that Ms Short had no expectation that she would face large and dangerous waves in crossing the bar, as Mr Bitton had given her no warning of those matters. It ignores the fact that there was 37 seconds between the boat going over the first wave and going over the second wave, and only nine seconds between the boat going over the second wave and meeting the third wave.
Between waves the vessel was travelling through rough water which required Ms Short to hold on as best she could. There was no realistic opportunity to look around, identify that there was an outboard rail behind her, assess that it was appropriate to hold on back there, let go, move to the aft rail while the boat was pitching about, and then take hold of the rail. One could not expect an inexperienced person, who did not understand that such waves would be dangerous, and had not been told how to hold on, to react and take a safe hand hold in those short periods of time. So far as Ms Short was concerned, she was holding on by standing on the deck with her left hand on the bait tray and her right hand on the ice box.
The submission of the defendant would have required her to turn around and walk towards the stern of the boat, while the boat was in dangerous waves, then turn and face the front and place both hands on the aft rail. The existence of the outboard rail towards the stern of the vessel had not been drawn to her attention, and there was no real opportunity, when she was facing forward and doing the best she could to stay upright as the boat went over the waves, for her to realise that there could have been a safe hand hold somewhere behind her.
As to the notion that the last second warning given by Mr Sartor to hold on should have been obeyed, that is rejected. It meets the same problems as the submission that Ms Short herself should have realised that she had to hold on in some fashion which was appropriate.
Counsel for the defendant also submitted (MFI 11 pars 146-147) that Mr Sartor was holding on to the available hand rail, but that he lost his footing and fell to the deck, so in those circumstances no safety induction or risk warning could be found to be causative of the plaintiff’s injury. However, as previously recited, Mr Sartor was only holding on with one hand not both. It is no wonder that he too fell to the deck in those circumstances.
The defendants’ own expert Captain Pyett said that the appropriate manner of holding on while the vessel was crossing the bar would have been to hold on to the outboard hand rail with both hands. Neither plaintiff was doing this, but that was not their fault. It was the fault of the skipper who gave them no instruction to do so.
I find that Ms Short has established that the negligence was a necessary condition of the occurrence of harm. This was a commercial enterprise of the defendants and there is no reason not to extend the scope of the defendants’ liability to the harm so caused.
Finally, both experts agreed that on the balance of probabilities, if appropriate precautions had been taken and if the passengers were holding on appropriately, the injuries which were sustained would have been avoided (Transcript 256/34-257/5).

Inherent Risk

The defendants relied upon s 5I of the CLA which provides as follows:

“No liability for materialisation of inherent risk
(1)   A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
(2)   An ‘inherent risk’ is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
(3)   This section does not operate to exclude liability in connection with a duty to warn of a risk.”

This defence fails. The evidence of the experts was that there was a duty to warn of the risk, and the evidence of Mr Bitton himself was that as the master of the vessel he had a duty to give such a warning, particularly where a person was inexperienced and would have no idea of the risks of a bar crossing without such a warning. I have already found that there was a failure to give an appropriate risk warning.
Further, the opinion of the experts was that this was a risk which could have been avoided by the exercise of reasonable care and skill.
The defence of inherent risk is rejected.

No duty of care for recreational activity where risk warning

So far as it is relevant, s 5M of the CLA provides:

“(1)    A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
(2)   …
(3)    For the purposes of sub-sections (1) and (2) a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.
(4)    A risk warning can be given orally or in writing (including by means of a sign or otherwise).”

This defence fails. On the facts as found there was no risk warning given to Ms Short. On the evidence of Mr Bitton alone, let alone the experts, there was a need for such a risk warning. I reject the defence based upon s 5M of the CLA.

Obvious Risk

The defendant relied upon ss 5F, 5G and 5H of the CLA. Section 5F contains a definition of the phrase “obvious risk”. It provides:

“(1)    For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)   Obvious risks include risks that are patent or a matter of common knowledge.
(3)   A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)   A risk can be an obvious risk even if the risk (or a condition or circumstances that gives rise to the risk) is not prominent, conspicuous or physically observable.”

Counsel for the defendant submitted (MFI 11, par 151) that the risk of a person on a vessel losing balance, falling over and possibly sustaining an injury as the vessel encounters waves is an obvious risk as defined in s 5F. It was submitted that both Ms Short and Mr Sartor agreed with that proposition in cross-examination. It was also submitted that “Quite simply, it is a matter of common sense”.
True it is that the risk of falling over if a vessel goes over a wave is a matter of common sense. However, the risk in this particular case was not that simple proposition, but was the risk that the vessel in traversing the bar might encounter dangerous waves and that if the passenger did not have a firm hold those waves might throw the person off their feet. As Mr Bitton conceded, that risk is not obvious to a person who knew nothing about boating or about bars. The experts were of the same view. That was the whole reason why they held the view that there was a need to give a warning and instruction about holding on to a passenger in the position of Ms Short.
When the Nautikat set out from the jetty with Ms Short aboard, she did not know of the risks involved in crossing the bar. Those risks were not obvious to a reasonable person in the position of Ms Short. Mr Bitton conceded that this was so. The risks of crossing a bar were not matters of common knowledge, as conceded by Mr Bitton.
Section 5H of the CLA provides as follows:

“No proactive duty to warn of obvious risk
(1)    A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2)   This section does not apply if:
(a)   the plaintiff has requested advice or information about the risk from the defendant, or
(b)   the defendant is required by a written law to warn the plaintiff of the risk, or
(c)   the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional services by the defendant.

(3) Subsection (2) does not give risk to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.”

I have already held that the risk faced by Ms Short was not an obvious risk. For that reason alone the defence fails. However, it also fails because s 5H does not apply, as a result of s 5H(2)(c). Mr Bitton was a professional skipper. The risk to his passengers in crossing the bar was the risk of death or serious injury. Such risk arose from the provision of a professional service by Mr Bitton to Ms Short. Thus the statutory protection was not available to Mr Bitton, even if the risk had been an obvious risk.

The CLA does not define who is a “professional”. One normally sees s 5H pleaded in cases involving treatment or advice by doctors or hospitals. I see no reason why the notion of “professional” should include the masters of commercial vessels. They are required to have qualifications, they are required to undergo training, and they charge for their services.
For the reasons given above, the defence of obvious risk and the reliance upon ss 5F, 5G and 5H of the CLA fails.

Obvious risk of dangerous recreational activity

The defendant pleaded s 5L of the CLA which provides as follows:

“No liability for harm suffered from obvious risks of dangerous recreational activities
(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.”

Section 5K of the CLA contains definitions including definitions of “recreational activity” and “dangerous recreational activity”. It also provides that the definition of “obvious risk” has the same meaning as it has in Div 4 of the CLA. I have already dealt with whether or not the risk of encountering large waves in traversing the bar and the risks of not holding on tight when crossing such waves, is an obvious risk. Due to my previous finding that such risks are not obvious risks, the defendant cannot rely upon s 5L of the CLA and this defence also fails.
It fails for another reason. In s 5A of the CLA the phrase “dangerous recreational activity” means “a recreational activity that involves a significant risk of physical harm”. Going out on a fishing charter boat does involve some risk of physical harm, as does any journey on a boat particularly one into the open sea. On reflection, so does crossing a road, flying in a commercial aircraft, and just about every seemingly innocuous everyday activity. However, is such a journey one which involves a “significant” risk of physical harm?
The defendant bears the onus of proof on this issue. As Justice Mason said in Lormine Pty Ltd & Anor v Xuereb [2006] NSWCA 200 at [31]:

“The question to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one which is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in the particular context in which the plaintiff places himself or herself.”

Hundreds, if not thousands, of similar journeys by fishing vessels are undertaken in Australia each day. Thankfully just about every journey ends safely with no harm done to passengers. I have already found that the risk of harm could have been avoided by the taking of reasonable precautions. The evidence in this case shows that Mr Bitton, in order to be permitted to operate his fishing charter business across the Yamba bar, had to conduct a large number of bar crossings under observation to make sure that he could do so safely. I find that there was no significant risk of harm in a prudent crossing of the bar. If RMS was of the view that, come what may, there was a significant risk of harm in every crossing of the Yamba bar, it would not have permitted any to take place. For this reason also the defence fails.

Contributory Negligence

Paragraph 25 of the Amended Defence pleads that Ms Short’s injuries were suffered wholly or partly as a result of her own contributory negligence. Particulars (b), (d) and (e) make allegations that Ms Short failed to keep a proper lookout, both for approaching waves and approaching swell. The CCTV footage shows that not only was Ms Short looking ahead of the boat, but that she saw the approaching waves, as indicated by the look of concern and consternation on her face as they approached. There was no contributory negligence by failing to keep a proper lookout.
Particulars (c), (f), (g) and (h) variously allege contributory negligence by failing to keep a proper hold, including by holding onto hand rails. I reject this pleaded defence. My findings above are, in summary, that Ms Short had no appreciation of the dangers she faced, did not know that she had to keep a handhold, and had not been instructed to do so by Mr Bitton. If she did not know the precaution which she should take, she could not be guilty of contributory negligence for failing to take that precaution. As Mr Bitton said in his evidence, a person who is inexperienced would not appreciate the risks to be faced in crossing a river bar and should be told by the master of the vessel that passengers had to hold on and how they should hold on.
Particular (i) is an allegation that Ms Short jumped into the air while the boat was moving. The CCTV footage shows that this simply did not happen.
For the above reasons the defence of contributory negligence fails.

Conclusion on Liability

Ms Short is entitled to a judgment against the defendant based upon the cause of action in negligence. There was no dispute that if Ms Short succeeds in negligence, then her contract and ACL claims also succeed. I turn to assess damages.

Damages – Evidence of Ms Short

Ms Short was born in 1975 and was 44 years of age at the date of the trial. She left high school in Year 11. During her childhood she suffered extremely traumatic events. The detail of these events is set out in the medico-legal report of Professor Dennerstein dated 22 August 2018 (PX 1, Tab D4). I will not set out those matters in this judgment. Suffice it to say that the things that happened led to Ms Short leaving school early and leaving the family home. It denied her the opportunity to pursue education as a nurse at an early age.
Ms Short gave evidence about her work history. Even at school she worked part-time in retail businesses. After leaving home she worked in fast food, in pharmacies and as a sales representative. She had children in 1994, 1996, 1998 and 2001. She continued to work during her pregnancies and between children.
In 2003 Ms Short and her then husband bought a stock feed and hardware business in Queensland. She worked Monday to Friday doing all of the office work. She also served customers, ordered the stock and did deliveries. Her marriage broke down in 2009.
In 2010 she became a purchaser for a plumbing business. She worked 54 hours a week as well as looking after her children. The Family Court made orders that the stock feed business was to be returned to her, but Ms Short’s ex-husband had run the business into the ground and it had to be closed.
In October 2012 Ms Short commenced a new business selling pet food, stock feed and rural supplies. She worked six days a week from 7.30am until 5.30pm, and did bookwork out of hours. She did all of the physical unloading and loading of heavy bags of produce. She also operated a forklift. She lived on the premises where the business was conducted. Besides working in the business Ms Short also started a nursing course to become an Endorsed Enrolled Nurse (EEN). She obtained High Distinctions throughout the course. She graduated in February 2017.
The boating accident happened in April 2017 while she was waiting for her registration to come from the Australian Health Practitioner Regulation Agency (AHPRA). She was ultimately registered as an EEN in June 2017. She applied for graduate nursing positions.
After the boating accident occurred, Ms Short went to the local hospital. There was an x-ray of her ankle which was reported as normal. She was given pain relief. She could not sleep and she struggled to breathe. Her chest and her back were hurting, as well as her ankle. When Ms Short awoke the next morning her ankle was black. She and Mr Sartor decided that they should return home to the Gold Coast. Upon return Ms Short was admitted to Tweed Heads Hospital. They did a CT scan and an ultrasound. She was released from hospital and went to live with Mr Sartor. She spent the first few weeks in bed, only getting up to go to the toilet or have a coffee or a cigarette. She was going every few days to the doctor to obtain pain medication. It hurt just to breathe.
Ms Short’s stock feed business did not re-open straight after the boating accident. To keep the business running she engaged her eldest son. He was then 22 years old and was working as a sheet metal worker. To help out his mother he ran the stock feed business, where he had previously worked.
In the first weeks after the accident Ms Short was taking prescription pain medication including Panadeine Forte, Endone, Targin, Tramadol, Lyrica and Morphine patches. She was still “in agony”. The pain was in her left ankle, her back and her neck. She felt so bad that she used to say to Mr Sartor: “Take me out the back and shoot me”.
About 17 weeks after the accident she became able to mobilise more. She only discovered that she had a fracture in her left ankle in the seventh week after the accident when a fresh x-ray was done.
When she went back to her business after 17 weeks she could not lift the bags of produce and she obtained casual help employing workers sent by Centrelink. Each person worked about 12-16 weeks, and when they finished Centrelink sent another employee. She did all of the administrative duties in the business, and left the physical work to the Centrelink workers. She found it hard even to sit in a chair for long periods of time. She ceased seeing friends and her social life “just stopped because I was in pain”.
Ms Short continued to apply for graduate positions in nursing. She made such applications about six months after the boating accident. A bundle of written applications for nursing roles was tendered. Ms Short gave evidence that during the course of interviews for those jobs she was asked about her health and whether she had any injuries. She disclosed the ankle injury and the back injury. She was not successful in obtaining any positions.
Eventually Ms Short obtained a position as a disability support worker. She works with one client at a time. Every shift is different, depending on the client’s needs. There is no lifting or hoisting. A lot of the people she deals with are mental health clients. She takes them to doctor’s appointments, hospital appointments, dental appointments, and to do their shopping. Sometimes they go to the movies or to a coffee shop.
In this position Ms Short is a casual. She works most days and her shifts are anywhere from three hours to six hours. The number of hours she works each week varies depending on what is offered. She said that her normal maximum number of hours per week is about 30 hours.
Ms Short was asked whether she thought there would be any problems in becoming an enrolled nurse. She said that the standard nursing shift was eight hours and you are on your feet all day. She said she was still struggling with her ankle and that nursing involved constant walking.
Ms Short sold the stock feed business in June 2018. She had started working in disability support in May 2018. Ms Short said that she still had problems with her ankle. It aches and she walks with a slight limp. She cannot stand for long periods of time. She can do most of the housework but cannot bend over for long periods.
Ms Short said that she still intended to try to find a nursing job.
Ms Short was asked how she was mentally. She said that she was fine. She gets upset about the boating accident and said that it had definitely changed her life. She struggled with the fact that the accident had happened at the same time as she graduated and that the accident had changed her career.
Ms Short was cross-examined about the profit and loss statements for the stock feed business. She accepted that in the financial year 2015 the business had a nett profit of $1,807. In the 2016 year there was a loss of just over $13,000. In the 2017 year there was a loss of $1,791. In the 2018 year there was a profit of $757. Ms Short acknowledged that it was always her intention to sell the business and move into nursing.
Ms Short’s credit was challenged in relation to the application she made to John Flynn Hospital. The application she made contained a question about whether she suffered any injuries and she answered “no”. She said that she had not told the truth on completing that form. When confronted with this conflict with her earlier evidence, Ms Short said that it was an ambiguous question, because she had not yet done any nursing shifts. I do not regard that as a forthright response.
Ms Short applied for a job with a nursing agency called Caring For You. Again she indicated in writing that she did not have any problems which would affect her ability to perform nursing duties. It was suggested that she did not tell the truth on that form, but again Ms Short resorted to saying that she had not done nursing so she could not make a judgment if it was going to affect her on a nursing shift. This was quite contrary to the evidence she gave in-chief. Again, I do not regard that evidence as truthful.
Ms Short was cross-examined about the number of hours she did as a disability support worker. It was suggested that between the end of May 2018 to November 2018 she had averaged just over 35 hours per week. It was pointed out to her that in the fortnight ended 3 June 2018 she had worked 55 hours a week. In the next fortnight she worked 85 hours. When Ms Short was questioned in this fashion her counsel indicated that he did not suggest that the records upon which the cross-examination was conducted were inaccurate.
Ms Short was questioned about the fortnight leading up to 4 November 2017 when she worked 117 hours in the fortnight. She said that she was doing all overnight shifts. She acknowledged that the records showed that her earnings from the end of May through to November resulted in an average wage of about $1,100 nett per fortnight. During the fortnight when she worked a large number of hours, she was paid $1,760 nett. As a result of that cross-examination it was further put to Ms Short that when she saw Dr Smith, orthopaedic surgeon, at the request of her own solicitors, she deliberately tried to minimise the number of hours that she was working. She said that was incorrect.
Ms Short was cross-examined about why she did not tell Dr Smith about a pre-existing injury to her neck. She recalled that she had suffered a neck injury when she was assaulted by a patient. It was pointed out to her that she had not disclosed that to Dr Smith although her consultation with him was only a number of weeks after the assault had occurred. It was pointed out to her that she had not told Dr Smith that she was only working 20 hours a week at that time because she was on restricted duties because of the neck problems as a result of the assault. Ms Short would not acknowledge the correctness of those propositions, but they were clearly correct. This did not reflect well on Ms Short’s credibility.
It was put to Ms Short that she was suffering psychologically because of the assault at work. It was pointed out that she saw Dr Wallace on 6 December 2018 and that doctor recorded: “Recently assaulted at work. Now having nightmares and flashbacks regarding this episode”. When it was suggested that she had never complained to any of her GPs about nightmares and flashbacks regarding the boating accident, she said “I can’t recall”.
It was pointed out to Ms Short in cross-examination that she had seen a GP in February 2019 stating that since the assault she had felt anxious and had a low mood. She had been put on mental health care plan. Ms Short accepted that these matters were correct.
Ms Short was cross-examined about making a claim for workers compensation as a result of the assault. It was suggested that she told a claims officer that she worked 110 hours per fortnight. It was also put to her that in January 2019 she told a claims officer that she worked 160 hours per fortnight. She said that she had never worked for this length of time. She said that it could be 106 hours per fortnight. Ms Short acknowledged that she told a claims officer that she was suffering shocking flashbacks from the assault and had a breakdown which caused her to see a psychologist. Ms Short acknowledged that she had not told Dr Virgona, the defendant’s psychiatrist, about those matters.
In cross-examination Ms Short acknowledged that she enjoyed the work she was doing, but she said that if she could get a nursing job she would leave disability support work tomorrow. She indicated that because she had not been able to get a position as a graduate EEN, she could now not obtain employment as a nurse because she had no experience.
Mr Sartor gave very brief evidence on damages. He said that Ms Short now had a permanent limp. He often saw her limping when she arrived home after work. When he asked, she told him on these occasions that her ankle was sore. There was no cross-examination on this evidence.

Damages – Expert Evidence

At the request of her solicitors, Ms Short saw Associate Professor Steadman, a consultant orthopaedic surgeon. He first examined Ms Short on 30 August 2017. She was then taking four Brufen tablets every four hours for pain. She reported suffering from headaches with low back pain. The low back pain went to her buttocks and down into her hamstrings and occasionally to her knees. She said that her neck was also sore but less so than her lower back.
Physical examination of the left ankle showed significant tenderness of the lateral ligament area. There was a 10 degree reduction in plantar flexion and this caused pain. So did dorsiflexion, which was reduced by 5 degrees. Subtalar movement was full but caused pain. Compression of the rib cage revealed some discomfort on the left side in the lower part of the chest wall. There was a generalised reduction in range of motion in the cervical spine.
Associate Professor Steadman diagnosed a number of soft tissue injuries and fractures “from a consistent mechanism”.
Ms Short saw Associate Professor Steadman again on 17 September 2018. She told him that her left ankle was her biggest problem although her spine was aching continuously. She had problems lifting because of her left ankle and her spine. Ms Short told the doctor that she could cope with her current job as it was mostly sitting. Again examination revealed tenderness in the left ankle. Additionally, the doctor thought there was some ligamentous instability. He diagnosed musculoligamentous injuries of the cervical and lumbar spines and left ankle.
The defendant sent Ms Short to Dr Anthony Smith, orthopaedic surgeon. His first examination was on 4 December 2018. He noted the complaint of ongoing pain in the left ankle and a limp. Ms Short complained of low back pain sustained at the same time as the accident but said that this had recovered in eight months. She told him about her headaches. Dr Smith reported on the x-ray of the left ankle undertaken on 29 May 2017. This showed a very tiny area of calcification adjacent to the insertion of the lateral collateral ligament complex. The impression was of a non-displaced fracture of the distal lateral malleolus. He too found laxity in the lateral collateral ligament complex on the left.
Dr Smith thought that Ms Short was fit to work “in any occupation suitable for women of her age on a full-time basis”. There is no indication in his report that he was asked to consider whether or not Ms Short could work as a full-time nurse.
The second examination by Dr Smith occurred on 14 May 2019. He was provided with the clinical notes going back to 2009. Nothing in that information altered his previous opinion.
The two orthopaedic experts participated in a conclave on 21 June 2019. They agreed that as a result of the incident on board the Nautikat on 17 April 2017 Ms Short suffered physical injuries being a fractured left 11th rib, the left ankle, the low back and possibly the neck. Both experts agreed that Ms Short was still complaining of symptoms in her left ankle but she was no longer complaining of any rib symptoms. The experts agreed that the treatment required to date had been medication, massage and local medical practitioner care.

Both experts agreed that they had been made aware of pre-existing neck problems, but not of any problems in the left ankle, low back or the 11th rib. They were of the view that Ms Short had had severe neck symptoms in the past and had been injured in a work injury on 17 November 2018 from a physical assault causing neck pain and headaches. The experts commented that the WorkCover Certificate relating to that assault advised no pre-existing conditions “which both experts now know is not true”. Dr Smith noted that Ms Short did not report the assault to him, even though it occurred on 17 November 2018 and he saw her on 4 December 2018. As a result I am not satisfied that there was any neck injury suffered in the boating accident.
Associate Professor Steadman thought that there was some incapacity for work but Dr Smith thought that there was no incapacity for work. Associate Professor Steadman thought that “based upon her occupation of being a self-employed rural warehouse owner that she would have difficulty with heavy physical tasks”.
It is most unfortunate that the experts were not brought up to date about the sale of the produce business, the qualification of Ms Short as an EEN, and her intention to work as a nurse.
While the conclave report of the experts was most helpful, and avoided the need for them to be called to give oral evidence, the value of both opinions is somewhat diminished because neither orthopaedic surgeon was asked to turn their mind to whether or not Ms Short would have difficulty with a nursing career.
Ms Short’s solicitors sent her to Professor Dennerstein, a specialist psychiatrist. It is the report of Professor Dennerstein dated 22 August 2018 which sets out the tragic history of Ms Short’s childhood, and the lifelong consequences of those events. Ms Short did tell the expert of regular flashbacks regarding the boating accident. She said that the accident had destroyed her love of fishing. That was a recreational activity which she had found calming prior to the accident. Ms Short also reported that she was upset “that she was robbed of the chance to nurse as she had wanted to be a nurse since age 16”. Professor Dennerstein made a recommendation for future treatment for exacerbation of post-traumatic stress disorder. The original condition was a lifelong consequence of severe childhood trauma. The expert was of the view that the boating accident and its aftermath had exacerbated Ms Short’s PTSD.
The defendant sent Ms Short to Dr Virgona, a consultant psychiatrist. He saw Ms Short on 26 February 2019. Ms Short complained bitterly during her cross-examination that Dr Virgona spent 90% of the examination questioning her about her childhood trauma and its aftermath. His report contains some detail about those matters.
Dr Virgona was also of the view that Ms Short had suffered an “an exacerbation of her pre-existing chronic PTSD”. He concurred with the need for psychiatric treatment. Under the heading “Diagnosis and Opinion” Dr Virgona said:

“She describes a reaction to the accident itself, with re-experiencing phenomena (nightmares and intrusive recollections), associated with anxiety and anger. She experiences anxiety when she is near the water, seeing boats going out, and is reminded of the accident. By her account, the more significant reaction, is the experience of loss of water sports/fishing as self-soothing activities. She was distressed about losing this which had been important to her for much of her life. She reported it as being her ‘safe’ place, a place of ‘peace’, the only place where she didn’t get hurt.”

It appears from the report that Dr Virgona accepted these matters put by Ms Short and accepted that such feelings had been caused by the boating accident. Dr Virgona said of Ms Short:

“She impresses as being a resilient person, who has coped with life’s travails and her traumas, always worked, brought up her children, educated herself and has done so with little psychological therapy or other support.”

That is precisely the impression which I formed of Ms Short.
The two psychiatrists participated in a conclave by telephone on 27 June 2019, which resulted in a report dated 30 June 2019. They agreed that as a result of the boating accident Ms Short had experienced an exacerbation of post-traumatic stress disorder. They were both of the view that Ms Short required treatment in future. Ms Short had developed post-traumatic stress disorder as a result of events during her childhood and adolescence. The symptoms of PTSD were still present prior to the accident on 17 April 2017 but were exacerbated by the trauma of that accident. The experts were agreed that Ms Short was not incapacitated for work by her psychiatric condition. In any event, that was not a proposition put for Ms Short.
Ms Short tendered a report by Ms Scudamore dated 1 May 2019. Her qualifications were not set out in the report, but it relates to a vocational assessment of Ms Short. Ms Scudamore reported that Ms Short was currently working as a support worker for My Momentum, a service which supports clients with mental health issues and intellectual disability. Ms Short rarely needed to provide physical assistance for the clients. Ms Short told Ms Scudamore that her work hours had been limited since the work assault in November 2018. Prior to that time she was completing six to seven sleepover shifts per fortnight, which paid well.
Ms Scudamore said that according to the Australian Government Employment Information website Job Outlook, work as an EEN involved physical demands such as frequent standing and walking, heavy lifting, and occasional squatting, crouching, bending or stretching. Ms Scudamore said that Ms Short had demonstrated capacity for work of a sedentary nature but that she would most likely struggle to undertake work as an EEN on a full-time basis without being able to rest and recover between shifts.
The report of Ms Scudamore set out information concerning potential earnings. The average salary was $60,000 for enrolled nurses. The average gross weekly wage was $1,104. On top of this there were further payments for shift work, afternoon shifts, evening shifts and weekend work.
The defendant tendered a vocational report by Mr Defina, a clinical and vocational psychologist. He sighted Ms Short’s academic transcript which recorded consistent grades of High Distinction in the Diploma in Enrolled Nursing.
Mr Defina noted that because Ms Short could not obtain a graduate position after the boating accident, she could not obtain further employment in that profession, as such positions required nurses with experience.
Mr Defina administered a number of psychological tests, and came to the view that there was no symptom exaggeration by Ms Short. Mr Defina agreed with Ms Scudamore that Ms Short will now experience greater difficulty securing employment as an Enrolled Nurse since she has not been able to obtain a graduate position.
Mr Defina annexed to his report figures concerning earning rates in various occupations. The market rate for a Disability Services Officer of Ms Short’s age was a gross wage of $1,075 per week. The similar market rate for an Enrolled Nurse was $1,387 gross per week.

Non-Economic Loss

Section 16 of the CLA governs determination of damages for non-economic loss. No damages may be awarded unless the severity of the non-economic loss is at least 15% of a most extreme case. Section 16(3) provides a table which scales damages between 15% and 33% of a most extreme case. The maximum amount which can be awarded is indexed each year. The present maximum amount is $658,000.
Counsel for Ms Short submitted that the award should be for 33% of a most extreme case, being $217,000. Counsel for the defendant submitted that Ms Short did not reach the 15% threshold, and thus no damages should be awarded for non-economic loss.
I find that Ms Short is entitled to $92,000 for non-economic loss, which is 28% of a most extreme case. My reasons are as follows:

I prefer the opinion of Associate Professor Steadman to that of Dr Smith.

Both orthopaedic specialists found objective signs of disability and restriction upon examination of the left ankle.

I do not understand why Dr Smith held the view that there was nothing physically wrong with Ms Short in the light of such findings. The evidence of Ms Short and Mr Sartor that she walks with a limp, and complains of ankle pain at the latest by the end of the day, was not seriously challenged. The evidence concerned her severe restrictions straight after the boating accident was not challenged.

I accept the opinion of Associate Professor Steadman regarding restrictions in capacity for physical work. Having regard to the evidence of the vocational assessors concerning the physical challenges of nursing, which in any event are a matter of common experience, I find that Ms Short has suffered pain in the left ankle and lower back which is made worse by working even as a disability support officer.

There is no treatment which will improve Ms Short’s condition. Given her excellent past work history I find that she will continue to work, and will thus continue to suffer pains and problems in the left ankle and the lumbar spine.

Both psychiatrists agreed that Ms Short suffered, and still suffers from, and exacerbation of her pre-existing PTSD. She needs treatment.

Past Out-of-Pocket Expenses

The parties agreed that the appropriate figure was $3,500.

Future Out-of-Pocket Expenses

Counsel for Ms Short submitted that the figure should be $30,674, comprising medication use, massage, psychiatric treatment, physiotherapy, hydrotherapy and osteopathic treatment. In the submissions made by counsel for Ms Short (MFI 12, par 21), there appear to be double counting in relation to the cost of medication and massages.
I accept the opinion of Associate Professor Steadman that the appropriate figure for Ms Short’s ongoing physical treatment is the sum of $4,000 for intermittent medication use and occasional massage. The two expert psychiatrists were agreed that Ms Short required 12 sessions of future treatment at a total cost of $3,000. I do not allow any of the other amounts claimed by Ms Short. Ms Short’s orthopaedic expert did not go so far as to suggest that Ms Short would benefit from physiotherapy, hydrotherapy or osteopathic treatment.
The award for future out-of-pocket expenses will therefore be: $4,000 + $3,000 = $7,000.

Past Economic Loss

To keep the produce business open Ms Short paid wages of $16,558.51 for replacement labour. This was the amount sought in the submissions made by counsel for Ms Short. The defendant submitted that only $8,000 should be allowed for this head of damage, as Ms Short said that she was back at work after 17 weeks. However, the evidence of Ms Short which I accept is that when she went back to work all she could do was sit or lie down and do accounting and administrative tasks. She could certainly not lift any of the heavy bags of produce 17 weeks after the accident.
I find that the expenditure of $16,558.51, being wages paid for replacement labour, was reasonable and necessary as a result of injury suffered in the accident. While the business earned minimal amounts in the profit and loss statements, the fact is that it was a valuable capital asset which was eventually sold, on the evidence, for $40,000. It was worthwhile keeping the business going so that it could be sold as a going concern. The award for past economic loss will be $16,558.51.

Future Loss of Earning Capacity

Section 13 of the CLA governs the assessment of future loss of earning capacity and provides:

“(1)   A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.
(2)   When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.
(3)    If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

The operation of s 13 of the CLA, which is in identical terms to s 126 of the Motor Accidents Compensation Act 1999, has been considered and clarified in many well-known Court of Appeal cases. I respectfully adopt the approach extracted from those cases and set out in the judgment of Justice Hoeben in Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098 at [216]. That approach is as follows:

The court must assess the “most likely” of the possible future economic circumstances facing the plaintiff but for the accident (including type of employment, duration of employment and remuneration);

Assess the plaintiff’s economic prospects as a consequence of the accident;

Compensate the plaintiff for the difference between (1) and (2) including, where appropriate, the use of a buffer;

Adjust (3) by an appropriate percentage for vicissitudes, to reflect the possibility that the plaintiff may not have achieved (1) even had the accident not occurred;

Include a statement of the assumptions made as to the plaintiff’s most likely future circumstances on which the award was based and the relevant percentage adjustment.

I find that Ms Short’s most likely circumstance, but for the accident, was that she would have sold the produce business and pursued a career as an Enrolled Nurse. That had always been her wish, but she was prevented from entering that profession at an earlier age because of her traumatic childhood. She obtained High Distinctions in the course and graduated with a Diploma in Enrolled Nursing, so she should have been able to obtain a position, if uninjured.
I find that Ms Short’s economic prospects as a consequence of the accident are in accordance with the opinion of Associate Professor Steadman. Even though that expert was looking at Ms Short’s ability to work in the produce store, the evidence in the vocational capacity reports demonstrates that an Enrolled Nurse is required to be on her feet almost constantly, has to lift patients, and has to adopt postures such as bending, squatting and stretching. Having accepted the opinion of Associate Professor Steadman about Ms Short’s disabilities in her left ankle and her lumbar spine, I find that even if she could have obtained a position, Ms Short cannot work as an Enrolled Nurse. I find that on the basis of the report of Mr Defina, Ms Short could have earned $1,387 gross per week as a full-time enrolled nurse.
Ms Short has demonstrated the capacity to work as a disability support person. Prior to being assaulted by a patient in November 2018, she was working more than full-time hours. Once the effects of that assault dissipate, Ms Short will be able to, and I find will, work full-time as a disability support officer. Based upon the evidence concerning earnings, I find that she could earn $1,075 gross per week in such a role.
Ms Short is entitled to be compensated for the difference between steps 1 and 2 above. On gross figures, the differential between a full-time Enrolled Nurse and a full-time disability support officer is $312 gross per week. Counsel for Ms Short submitted that I should adopt a figure of $250 nett per week. The appropriate multiplier is 721.2. This gives a future loss of earning capacity, to reflect the inability to work as an Enrolled Nurse but the ability to work as a disability support officer, of: $250 x 721.2 = $180,300.
It is then necessary to apply an appropriate discount for vicissitudes, to reflect the possibility that Ms Short may not have achieved earnings as an Enrolled Nurse even had the accident not occurred. In my view it is also necessary to include in the discount for vicissitudes, the possibility that Ms Short could have progressed from being an Enrolled Nurse to a Registered Nurse (a positive vicissitude) and to recognise that other events in life may have prevented Ms Short from working full-time until retirement age as a disability support worker (a negative vicissitude). The assault upon Ms Short in November 2018 is such a vicissitude, and there is no guarantee that some event may not happen again in the future when Ms Short continues her employment as a disability support worker.
Taking all those matters into account, I am of the view that the appropriate discount for vicissitudes is 15%. This means that the calculation for future economic loss is: $250 x 721.2 x 0.85 = $153,255. I propose to round that to $150,000.
Counsel for Ms Short also sought a cushion for reduced working hours of $100,000. The evidence shows that Ms Short was working long hours as a disability support officer prior to the assault in November 2018. Her hours were then reduced because of the after-effects of the assault, which were both physical and psychiatric. There is no evidence to enable the court to find, on the balance of probabilities, that Ms Short has anything other than a capacity for full-time work as a disability support officer, as a result of any after-effects of the boating accident. I therefore decline to award any additional cushion for reduced working hours.

Damages – Summary

The damages awarded to Ms Short amount to $269,058.51 made up as follows:

Non-economic loss

$92,000.00

Past out-of-pocket expenses

$3,500.00

Future out-of-pocket expenses

$7,000.00

Past economic loss

$16,558.51

Future loss of earning capacity

$150,000.00

TOTAL

$269,058.51

Orders

My orders are:

Judgment for the second plaintiff against the defendants for $269,058.51.

Order the defendants to pay the second plaintiff’s costs as agreed or assessed.

Grant leave to approach my Associate if either party wishes to list the matter again before me to seek a different costs order.

**********

Decision last updated: 04 December 2019

Medium Neutral Citation:	Sartor v Bitton [2019] NSWDC 723
Hearing dates:	17, 18, 19 July, 13 August, 11 October 2019
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Judgment for the second plaintiff against the defendants for $269,058.51. (2) Order the defendants to pay the second plaintiff’s costs as agreed or assessed. (3) Grant leave to approach my Associate if either party wishes to list the matter again before me to seek a different costs order.
Catchwords:	NEGLIGENCE – fishing charter vessel travelling through river bar – risk of suffering injury if large waves were encountered and passenger was not keeping a firm hold – risk unknown to an inexperienced person - passenger thrown to deck suffering injuries – need to provide a safety induction and to warn passengers of the dangers of the river bar – need to warn passengers to hold on to rails NEGLIGENCE – Civil Liability Act 2002 (NSW) – ss 5B, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5L, 5M DAMAGES – non-economic loss - past economic loss – future loss of earning capacity - Civil Liability Act 2002 (NSW) ss 13, 16
Legislation Cited:	Civil Liability Act 2002 (NSW) Competition and Consumer Act 2010 (Cth) Motor Accidents Compensation Act 1999 Partnership Act 1892 (NSW)
Cases Cited:	Lormine Pty Ltd & Anor v Xuereb [2006] NSWCA 200 Motorcyling Events Australia Group Pty Ltd v Kelly [2013] NSWCA 361 Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098
Texts Cited:	Roads and Maritime Services Coastal Bar Safety Guide
Category:	Principal judgment
Parties:	Robert Sartor (First Plaintiff) Megan Short (Second Plaintiff) Glynn James Bitton (First Defendant) Julie Bitton (Second Defendant)
Representation:	Counsel: R Royle (Plaintiffs) G Smith (Defendants) Solicitors: Shine Lawyers (Plaintiffs) McInnes Wilson Lawyers (NSW) (Defendants)
File Number(s):	2018/191244

Non-economic loss	$92,000.00
Past out-of-pocket expenses	$3,500.00
Future out-of-pocket expenses	$7,000.00
Past economic loss	$16,558.51
Future loss of earning capacity	$150,000.00
TOTAL	$269,058.51