Tsiaousis v High Bentham P/L and Glenelg Scuba Diving Club Inc and Leggatt - [2004] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TSIAOUSIS v HIGH BENTHAM P/L AND GLENELG SCUBA DIVING CLUB INC AND LEGGATT
Judgment of His Honour Judge Smith
23 July 2004
TORTS - NEGLIGENCE
Negligence – duty of care – scuba diving – plaintiff qualified scuba diver but with little recent experience – hired diving equipment from first defendant – first defendant referred plaintiff for a dive off the coast of Glenelg – whether a duty of care exists – discussion of the scope or content of any duty of care – plaintiff dived with third defendant as her “buddy” and in the course of the dive made two panic stricken rapid ascents – plaintiff may thereby have suffered lung pressure illness – whether third defendant as her “buddy” owed a duty of care to the plaintiff – extent of duty – whether failing to assist plaintiff with her buoyancy control was breach of duty – held that there was no duty of care of the scope contended for in existence between the plaintiff and the first defendant and so negligence and breach of duty implied by contract of hire not established – further held that whilst the third defendant as an experienced buddy may have owed a duty as contended for by plaintiff – there was no breach established and therefore no negligence.
Wrongs Act 1958 (Victoria) s14B, referred to.
F v R (1983) 33 SASR 189; Kenny & Good v MGICA (1992) Ltd (1997) 77 FCR 307; Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The “Wagon Mound”) No 1 [1961] AC 388; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183; Wyong Shire Council v Shirt (1980) 146 CLR 40; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Donoghue v Stevenson [1932] AC 562; Sullivan v Moody (2001) 207 CLR 562; Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254; Perre v Apand Pty Ltd (1997) 198 CLR 180; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; McElwee & Anor v Ansett Transport Industries (Operations) Pty Ltd [1997] QSC 164; Mountain Cattlemen’s Association of Victoria Inc v Barron (1998) 3 VR 302; Hahn v Conley (1971) 126 CLR 276; Robertson v Swincer (1989) 52 SASR 356; Towart v Adler (1989) 52 SASR 373, considered.

TSIAOUSIS v HIGH BENTHAM P/L AND GLENELG SCUBA DIVING CLUB INC AND LEGGATT
[2004] SADC 101
CIVIL
JUDGE DAVID SMITH
'
Introduction

In this action the plaintiff claims damages for personal injuries allegedly caused to her when she was scuba diving on a reef called Broken Bottom at Glenelg on the 6^th February 1997. She alleges that she suffered lung pressure injuries, namely pulmonary barotrauma (ie lung rupture) and cerebral arterial gas embolism (ie air bubble blocking a blood vessel), when she ascended too rapidly from the ocean floor. Her causes of action are in contract and in the tort of negligence. She alleges that each of the defendants was involved in arranging the dive at the reef and was in various respects in breach of a duty of care owed to her.
This action is before me to determine only liability (see order Master Norman made 23.09.03).
The parties
I introduce the parties and set out my findings as to the roles played by each. I deal also with the dive boat The Phantom and who owned and operated it.
The plaintiff, Maria Tsiaousis, is 38 years old. As at the 6^th February 1997 she was a certified open water scuba diver. By the time of the dive at Broken Bottom, which is the subject of this action, she had dived at least five times but possibly seven times, the last time being in 1994 or 1995.
The first defendant, High Bentham Pty Ltd, is a company, which as at 1997 operated the Adelaide Skin Diving Centre from premises located at 7 Compton Street, Adelaide (“Adelaide Skin Diving Centre”). The business consisted, inter alia, of:
·selling scuba diving equipment;
·hiring scuba diving equipment;
·conducting diving instruction; and
·arranging diving holidays or travel.
In 1997 the second defendant, Glenelg Scuba Diving Club Incorporated, was an incorporated body and was located at premises operated by Glenelg Marine and Scuba Diving Centre at Patawalonga Frontage at Glenelg North. The Club was a social organisation and I am satisfied was not involved in running any commercial activities such as dives and the chartering of vessels for diving. There was no evidence of neglect adduced against this party.
The third defendant, Anthony Robert Leggatt, was as at February 1997 a scuba diver of considerable experience (ie 300 dives). He was 46 years old and for some 30 years he had worked at General Motors Holden at Elizabeth. In particular, he worked the afternoon shift and since about 1994 he and other workers at General Motors regularly chartered a boat called The Phantom on Thursday mornings for scuba diving excursions to various locations just off the metropolitan coastline. Other interested divers sometimes joined this group. The plaintiff joined this group for the dive at Broken Bottom on Thursday morning the 6^th February 1997 and Anthony Leggatt, being the most experienced diver in the group, was her “buddy”. I will define and explain this term later. I find for reasons to which I will later refer that Anthony Leggatt was not in any sense the servant or agent of Adelaide Skin Diving Centre or the Glenelg Scuba Diving Club Incorporated such that either of them could be vicariously liable for any negligence or breach of duty proved against him.
The motor vessel The Phantom was a 22-foot “dive boat”. It was “in survey” and in 1997 was licensed to carry nine passengers and a coxswain. The boat was owned by the Paterson Family connections. It was available for charter and was indeed chartered from time-to-time by the “dive shops” in the metropolitan area including Adelaide Skin Diving Centre. This was invariably done for the purpose of taking students on instructional dives. As indicated, on Thursday mornings since about 1994 The Phantom was chartered by the General Motors Holden group, including the third defendant, Anthony Robert Leggatt, for early morning dives at various locations off the coast. The Phantom was stored near the Glenelg Marine and Scuba Diving Centre and it was launched from there. As at 1997, the charter operation of the boat was in part run by Tim Paterson. The coxswain, who effectively came with the boat, was Nick Angley. He was an experienced scuba diver and a “dive master”. The evidence explored at length some perceived legal connection between the owners and operators of The Phantom on the one hand and the defendants on the other. In the end result this connection was not pursued. What clearly emerged from the evidence was that The Phantom was an independent charter vessel. It was chartered by the General Motors Holden group for the dive at Broken Bottom. To the extent that it be necessary, I find that the vessel The Phantom was neither owned nor operated by Adelaide Skin Diving Centre and further on Thursday 6^th February 1997 was not chartered by Adelaide Skin Diving Centre for the purposes of the dive at Broken Bottom. Nor were Paterson or Angley the employees, servants or agents of any of the named defendants – such that any neglect of theirs could be ascribed to the defendants.
The Claims and Defences
By the end of the trial the claim of negligence and breach of duty pleaded against the first defendant had been distilled down to the following allegations:
·failed to instruct the plaintiff as to the proper use of the diving equipment hired to her;
·failed to ensure that the diving instructor responsible for the dive was properly qualified and skilled; and
·failed to advise the plaintiff as to the risks and dangers associated with the dive.
The plaintiff, in the course of the trial, abandoned the contention that the buoyancy vest was defective (517) and that she was not given appropriate medical assistance on the dive boat immediately after the dive (615, 627). In summary it was contended that Adelaide Skin Diving Centre was in breach of its duty of care in that, well knowing that the plaintiff was an inexperienced novice scuba diver, hired diving equipment to her and arranged for her to embark upon an open water recreational dive without requiring that she first undergo an appropriate re-introduction to scuba diving, by for instance, undertaking a refresher dive in the tank at its premises at 7 Compton Street.
The first defendant denied that it owed any such duty to the plaintiff who, the first defendant alleged, was a qualified and certified scuba diver and who herself declined to undergo a refresher dive in the tank.
There is no point in particularising the allegations against the second defendant, Glenelg Scuba Diving Club Incorporated, because as I said there was no evidence of neglect or breach of duty adduced against it in the course of the trial. There can be no judgment against the Club. Such was conceded by the plaintiff at the end of the trial (698).
The claim of negligence and breach of duty pleaded against the third defendant, Anthony Robert Leggatt, by the end of the trial was confined to the following allegations that he:
·undertook the supervision of the dive without appropriate qualification and skill;
·failed to advise the plaintiff as to the risks and dangers associated with the dive; and
·failed to ensure that the plaintiff knew how to use the diving equipment correctly.
The contention against Anthony Leggatt in summary was that as an experienced “buddy” to the novice plaintiff it was his duty to ensure on arriving at the ocean floor, and prior to swimming off to the reef, that the plaintiff had correctly adjusted her buoyancy vest so as to achieve neutral buoyancy and in not doing so, Anthony Leggatt breached his duty of care to her.
In response, Anthony Leggatt contended that he owed no such duty to the plaintiff and submitted that the plaintiff was a certified scuba diver and that on the two occasions that he and the plaintiff paused at the ocean floor, prior to moving off to the reef, she indicated no difficulties to him, but rather gave the okay signal.
There are in the pleadings allegations of contributory negligence against the plaintiff by the defendants which I will return to in due course if necessary.
Credibility and reliability
Over a period of eight days between the 7^th and 17^th October 2003 I heard evidence from 14 witnesses. There is no conflict in the evidence as to the broad narrative of events. However, there are crucial conflicts about, for instance, what the plaintiff said to various of the witnesses and when and how the symptoms of the alleged lung pressure injuries emerged. In respect of these conflicts there was a concerted attack on the plaintiff’s credibility. So I need to come to a view about the credibility and reliability of the main witnesses, including the plaintiff.
I find the plaintiff’s evidence to be unreliable and in places incredible. In areas of controversy I decline to accept it except where it is supported by other credible evidence. I hesitate to conclude that the plaintiff has been deliberately untruthful. Rather, I consider that in the course of time she has reconstructed to her advantage what has occurred and garnished and exaggerated her account of the events. As I traverse the circumstances of this matter I will explain why I prefer other evidence to that of the plaintiff. As to the other “main” witnesses, in particular Anthony Leggatt, Adrian Hunt, Alexander ‘Sandy’ Szabo and Tim Paterson, I accept them as credible and reliable.
I indicate that I have come to this view not merely on the basis of demeanour which is sometimes an unreliable indicator of credibility. Rather, I regard the evidence of the plaintiff in places to be inherently improbable, internally inconsistent and inconsistent with other acceptable evidence. The opposite is true of the evidence of the defendants’ witnesses. Their evidence is consistent with that of each other and overall is intrinsically more plausible.
I make it clear that in coming to this view I have taken into account the expert evidence of Dr Christopher Acott and the content of his two reports dated 3^rd October 2000 and 25^th May 2001 (see Exhibit P5). As quantum was not in issue there was no joining of issues on whether the plaintiff sustained injuries and the extent of them. However, I note that Dr Acott concluded that the plaintiff suffered a pulmonary barotrauma and a cerebral arterial gas embolism (ie CAGE) as a result of the rapid ascent. In his evidence and reports he discusses the fact that brain damage and resultant memory loss is a common residual problem. So disruption of brain function can accompany such a condition. So too Dr Acott spoke about the phenomenon of denial which he said is “ingrained in the diving community” (see Exhibit P5, report 3.10.2000 at p3). It is possible that these problems could cause an injured diver to present somewhat inconsistently. In fairness to the plaintiff, I proceed on the basis that Dr Acott’s diagnosis is correct. Nonetheless my views about the plaintiff’s credibility and reliability remain as above.
The Circumstances – Findings
I now set out my findings as to the circumstances surrounding this matter. I will identify the areas of conflict and make findings in respect of them as I traverse what is essentially a narrative.
Plaintiff obtains open water Scuba Diving Certification September 1992
The plaintiff was born on the 17^th January 1966 and so is now 38 years old. In 1992, together with a friend, she enrolled in a scuba diving course at the Adelaide Skin Diving Centre at 7 Compton Street Adelaide (23). The Adelaide Skin Diving Centre was an accredited training agency operating under the National Association of Scuba Diving Schools (331). Between the 27^th July 1992 and the 13^th September 1992 the plaintiff undertook the course which included not only diving in the tank at 7 Compton Street but also four dives off the coast of Ardrossan. Two of these dives were to depths respectively of 10 metres and 12 metres (320, 321, 333; and see also Exhibit D10). The witness Neville Grovermann, who gave evidence for the first and second defendants, was the plaintiff’s instructor. His evidence detailed the content of this course (316-337). In particular he said that students were instructed in buoyancy control and the operation of buoyancy vests such as the Scuba Pro Buoyancy Vest which the plaintiff was wearing on the day of the dive the subject of this action (322).
I accept Mr Grovermann’s evidence the effect of which was that persons whom he taught and who passed the course, on the face of it, were competent and qualified to dive in the open sea – albeit that upon graduation they were necessarily inexperienced.
On the 13^th September 1992, having completed the course, the plaintiff was certified by NASDS (ie National Association of Scuba Diving Schools) as an open water scuba diver (24; see also Exhibits D10 and D12).
Plaintiff returns to diving after year or so – refresher dive at Compton Street 1994 – open water dive at The Dredge
The plaintiff said that after being certified she did not dive for some time (29). In 1994 she decided to return to diving and contacted Adrian Hunt who was an employee of Adelaide Skin Diving Centre (29). I accept what Adrian Hunt said in his evidence. He recalled the plaintiff. He said that he asked where she had been since her certification. She explained, according to Mr Hunt, that she had been incapacitated by reason of injuries sustained in a motor vehicle accident but that she had recovered and was “coming to see us to look at getting back into diving …” (357). Mr Hunt said that he recommended a refresher session in the tank at Compton Street followed by some simple dives (357, 358). He said that in all likelihood it was he who arranged a refresher for the plaintiff (358). He explained what the refresher entailed, in the following terms:
“A.   The refresher session we conducted involved setting up and just reviewing the set-up of the scuba gear, basically reclarifying how everything goes together, and then going through the checks and the functions of the gear, and then supervising that person into the water, and then running through the basic skills which are, like, fundamental to diving, and supervising them for the next few minutes. The sessions generally only lasted ten minutes maximum and we’d just try to get a little bit of competency going with those skills, yes. So the person then – the idea is that, when they go into the ocean for the first time for a while, that they have that controlled environment and they are being able to refresh themselves so that it’s not all happening down at the water’s edge or in the ocean situation.
Q.     Does the refresher session involve the person entering into the training tank.
A.     Yes.
Q.     And at what depth.
A.     To four metres. Four and a half metres, the maximum depth of the tank.
Q.     At least back in 1993 and 1994 when you were conducting those refresher sessions with a qualified diver –
A.     Yes.
Q.     Who was being refreshed.
A.     Yes.
Q.     Was it your practice to get in the tank or could you observe from somewhere or what.
A.     If the person was a certified scuba diver already then generally we wouldn’t get in the water with them.
Q.     Where would you be.
A.     Initially at the surface, there’s a platform that runs around the top or the entry area over the tank, it would allow direct access to them and the water. Once they commence their initial descent we can walk down to the observation centre where there are glass panels in the tank and make visual communication with that person and also observe them doing their skills and shortly after that the session would be over.
Q.     That’s what you do, if there was a refresher session for a certified diver in 1993 or 1994.
A.     That was a standard session for a refresher session at the Adelaide Skin Diving Centre.”
(358-360)
The plaintiff agreed that she used the Compton Street diving tank for a refresher dive (31). She said that she then dived at a place some six kilometres off the Glenelg coast called The Dredge. She said that Adrian Hunt, whom she understood was an instructor, accompanied her on that dive (30). Indeed, Adrian Hunt said that by 1993 he had “instructor” qualifications (339). The plaintiff said that the dive boat used for the dive at The Dredge was a boat called The Phantom and that this dive at The Dredge lasted for about fifty minutes (31). It was not contested that The Dredge was a dive of 20 to 22 metres of water and was neither deep nor dangerous (see Szabo 549, 550).
Mr Hunt said that he vaguely recalled that the plaintiff participated in an open water dive after the refresher dive in the tank (360).
So there is no dispute that in 1994 the plaintiff returned to diving and did undergo the refresher session in the tank at Compton Street and then dived at The Dredge with Adrian Hunt. I am unable to find that this was an instructional dive.
Preparations for dive at Broken Bottom
The plaintiff said that it was not until 1997 that she decided to dive again.
Her evidence about this gap is unsatisfactory. The history taken by Dr Robertson at the Hyperbaric Unit on the 7^th February 1997 includes the following note:
* Novice
7 dives (last dive 2 yrs ago)
(see Exhibit P7; see also Robertson 555)
The plaintiff’s evidence-in-chief discloses only five dives by February 1997 (ie four at Ardrossan and one at The Dredge). There was no debate that the dives in the tank are disregarded. When confronted with this apparent inconsistency in cross-examination she initially conceded that she may have dived in 1995 off Rottnest Island (249, 250). But then when further questioned claimed memory problems. Finally, she said “I only remember diving off the Dredge a couple of times; that time with Adrian Hunt ...” (250). (The italics are mine.) However, the plaintiff had only given evidence of one dive at The Dredge (30, 31) and then said that she did not dive again until the early 1997 attempt at Broken Bottom. The plaintiff’s logbook, which recorded her dives, was not produced. She said she produced it to her lawyers. Despite efforts, the logbook could not be found. This ambivalence by the plaintiff is highly suspicious. If she was suffering from the conditions spoken of by Dr Acott that may be some explanation of the inconsistency in the history given to Dr Robertson. However, that does not account for the inconsistency in her evidence.

In any event, she said that around January 1997 she telephoned Adelaide Skin Diving Centre and spoke again with Adrian Hunt. She said that having informed Hunt that she wanted to resume diving she made the following requests:
·that she wanted to go down with an instructor, dive master or supervisor; and
·that she wanted access to the training tank.
(32, 33)
She said that his response was that she could have access to the training tank and that further he told her that there was “a dive occurring on the Thursday coming up and put me in touch with a person that was familiar to Compton Street to do the dive” (32, 33). That person was Anthony Leggatt. In his evidence Adrian Hunt had no positive memory of his conversation with the plaintiff but accepted the possibility that the conversation was as the plaintiff said (375, 376). However for reasons which I will spell out, I do not accept that the plaintiff made it clear to Hunt that it was a precondition to her diving that instructional care such as allegedly stipulated by her above was to be provided.
The dive was to be at the Broken Bottom reef which was about 1.5 kilometres off the coast of Glenelg. It was regarded as a “simple and easy” dive of 10 metres or so. The water was most often clear. It was regularly used for training or instructional dives (see Grovermann 333).
The plaintiff said that she spoke with Tony Leggatt on the telephone in order to make arrangements for the dive (33, 34). However, Tony Leggatt insisted in his evidence that the plaintiff spoke to him for the first time in the car park near the boat ramp at the Patawalonga on the morning of the dive (422). He said that he knew that she was joining the dive group, that morning of the 6^thFebruary, by reason of being told by both Sandy Szabo of Adelaide Skin Diving Centre (422) and Tim Paterson (450). In this respect, I prefer the evidence of Leggatt to that of the plaintiff. I consider it probable that the plaintiff spoke with Tim Paterson in order to, as it were, book her passage on the boat. Her own note is not inconsistent with this (see Exhibit D6). Further, I find in accordance with Tim Paterson’s evidence that she did not spell out to him any precondition to diving such as the provision, instruction or supervision. To use his words she merely “wanted to book on for a dive” (605, 605).
Therefore I do not accept that Leggatt was told over the telephone by the plaintiff that she was a novice diver and wanted to dive with “a supervisor, dive master or instructor, someone that was highly qualified” (34). Leggatt was not an instructor, dive master or supervisor. In his evidence, which I accept, Leggatt said that he had never represented himself as anything other than an open water diver (449). I infer that he would have spoken up if the plaintiff had made any such prerequisites known to him. So too, Adrian Hunt knew that Leggatt was not an instructor, dive master or supervisor (369). I do not accept that he let the plaintiff think she was getting an instructor to look after her on the Broken Bottom dive.
The hiring of scuba diving equipment – Plaintiff declines to undergo a refresher dive
On Wednesday the 5^th February 1997 the plaintiff attended at Adelaide Skin Diving Centre and hired scuba diving equipment which apparently included a weight belt, buoyancy vest, regulator, two tanks and a wet suit (34, 36). She did not avail herself of a refresher dive in the tank at Compton Street (37). The plaintiff’s evidence about why she did not use the tank to refresh her skills is typical of her evidence on many topics. She almost but not quite, blamed Adelaide Skin Diving Centre for not readily making the tank available. She said that she arrived late at Compton Street and “I was informed that there was a class coming through and I didn’t get to go into the tank … I felt – I didn’t want to push my way, to take away the facility, I felt like I had to make a quick decision. So I chose not to go in” (37, 38).
Adrian Hunt was more categorical about this topic. Hunt said that he watched and evaluated the plaintiff as she assembled the hiring equipment – by implication favourably (365, 366). The plaintiff all but agreed that she assembled the equipment in the presence of Hunt (140, 141). He said that she chose not to undergo the refresher dive in the tank (366). When asked if he was able to say why she declined the use of the tank he answered “Personal choice” (366). As I said, I accept the evidence of Adrian Hunt as to this matter.
The plaintiff said that in her initial conversations with Adrian Hunt he had mentioned a diving weekend at Edithburgh on the 14^th and 15^th of February 1997 (36; see also flyer Exhibit P2). Further she said there was mention also of a night dive that day at a place called The Wall at Seacliff or Somerton (34). Indeed, the plaintiff said she made a tentative booking with Adrian Hunt for the Edithburgh trip (83) and paid a deposit for that dive (36). As for The Wall dive the plaintiff’s evidence was that she was intending to embark on that as well (36, 42, 68). These dives were plainly not instructional dives and the fact that the plaintiff intended to join them is somewhat inconsistent with her claimed tentativeness and her requirement that she dive in the company of an instructor or some such highly qualified person.
The Broken Bottom dive – early morning – 6^th February 1997
At the car park before setting off to Broken Bottom
At about 7.30 am on Thursday the 6^th February 1997 the plaintiff arrived at the car park adjacent to the Glenelg Marine and Scuba Diving Centre on the Patawalonga foreshore (38, 423). Leggatt was already there (423). As a result of speaking with both Tim Paterson and Sandy Szabo, Leggatt was expecting both Maria (ie the plaintiff) and a person named Julius to join the group (422, 450). Leggatt introduced himself to the plaintiff upon her arrival (40, 424). As previously indicated I accept that this was the first time he spoke to the plaintiff (422). He said, and I accept it to be so, that he asked her about her diving experience. His evidence as to this conversation, which I accept, was as follows:
“A.   Yes, I did. I asked her what her diving experience was.
Q.     What did she say.
A.     She said she had not done many dives. I can’t remember exactly how many she said she had done but she had not done many dives but was confident in the water.
Q.     Was there any discussion about when her last dive was or not.
A.     No.
Q.     Did she ask you at any time about your experience as a diver.
A.     No, she did not. She – I said ‘We are just a bunch of guys that dive regular Thursdays’.”
(450)
Leggatt said that there was no pre-existing plan about who would dive with who. He said that this was something which was arranged “after she arrived” (424). Leggatt said that he agreed with the plaintiff that he would dive with her because most of the other people were “buddied up” and his regular buddy had gone to Melbourne (425, 426). Leggatt had also arranged to be the buddy of another novice diver in the group named Nick Clifford (425). The plaintiff said that she understood from both Adrian Hunt at Compton Street and from an earlier telephone call with Leggatt that Leggatt was to be her buddy (43). I do not accept that. Rather, as I have indicated, I accept Leggatt’s evidence that teaming up was arranged at the boat. I note on this topic that Adrian Hunt denied that he would have made any “buddying up” decisions at Compton Street (368, 369). Again this evidence of the plaintiff does not have a ring of truth about it. It does not make sense to make such decisions until the divers arrive for the dive. I prefer the evidence of Leggatt and Hunt to that of the plaintiff as to this matter.
The plaintiff said that she paid $25 to someone called Nick or Tim and was told she could collect a receipt from “Glenelg Scuba” after the dive (41). Tim Paterson in his evidence said that the fee would have been collected by Nick Angley or himself or Leggatt (592). He suggested that no receipts were ever issued let alone that receipts would have been collected from Glenelg Scuba. It is uncertain whether this reference by the plaintiff was to Glenelg Marine and Scuba Diving Centre or the second defendant Glenelg Scuba Diving Club Incorporated (85-89). This ambiguous unsupported assertion by the plaintiff was apparently the threadbare basis upon which she sought to mount a case for breach of duty against the second defendant Club. It is not necessary for me to make a finding about this because the action against the Club was abandoned.
At Broken Bottom – the first descent
When The Phantom arrived and anchored at the dive site, the coxswain and dive master, Nick Angley, gave the dive briefing (246).
Then the divers entered the water. The plaintiff, Leggatt and Nick Clifford were the last to enter the water (45). Prior to entering the water they checked each other’s gear (44, 428, 493). They followed the anchor chain down to the ocean floor (45, 429, 493).
The plaintiff was wearing a Scuba Pro Buoyancy Vest similar to the vest Exhibit P4. By inflating or deflating the vest with air the diver can cause himself or herself to ascend or descend. Pulling the toggle on the right collar will cause air to be quickly expelled from the vest causing the diver to descend. On the left side of the vest is a flexible tube which is ultimately connected not only to the air tanks but to the vest. On the end of this tube is a mouthpiece, a round button and a rectangular button. The mouthpiece is for the diver to put air into the vest by himself or herself exhaling into it. The rectangular button when depressed will “dump” air from the vest and so decrease the diver’s buoyancy. The round button when depressed will inflate the vest by admitting air to the vest from the supply in the tanks and so increase the diver’s buoyancy. To use the buttons it is necessary to hold the hose up above the shoulder (271-275, Dr Acott; 429, 430).
The plaintiff said she descended by expelling air from her vest using the toggle (46). The trio of herself, Leggatt and Clifford were close behind the other divers. They reached the ocean floor at about a depth of 10 metres (see Exhibit D15). The plaintiff said that when she got to the bottom with Leggatt and Clifford “We took some time to, I guess, collect ourselves and give each other the okay sign, to commence our little scuba dive session” (48). Leggatt said that it was usual practice to “... adjust your weight belt, and then have a little bit more air in your BC and obtain neutral buoyancy, and then move off” (429). He said “I do recall her giving me the okay signal to move off” (429). Nick Clifford said that he recalled swimming off together with Leggatt and the plaintiff. Clifford said he had both the plaintiff and Leggatt in view (495).
Leggatt then recounted what happened in the following terms:
“Yes. As I looked back to check – after we moved off, I looked back, just to have a quick check if everybody was coming along, everybody was swimming along quite well, and I looked forwards (sic) to where I was going and then after a little more time I looked back and I saw Maria start to head up towards the surface.” (431)
The plaintiff agreed that she gave the okay signal and then moved off, but she said she had difficulty getting neutral buoyancy and kept hitting the bottom. She said she reached out to grab Leggatt’s fins and attract his attention but could not do so. She said that she started rising (51). She added:
“A.   ... I thought ‘okay, I’ve got to dump some air’, so I’m reaching for the flexible tube, saying ‘okay, I’ve got to press the square button to get rid of some air’ and it wasn’t emptying. I just kept rising.
Q.     You came to the top.
A.     Yes.
Q.     Did your speed change as you rose.
A.     I started to go a bit faster.”
The plaintiff said that she attempted to arrest her ascent by adopting a starfish posture. When asked if she “maybe” pressed the wrong button the plaintiff replied:
“Possibly, but I don’t think so. I was conscious of which button. Split-second maybe, I don’t know.” (53)
At Broken Bottom – At the surface after the first ascent
Leggatt followed the plaintiff quickly to the surface. There is considerable conflict about what was said at the surface. I do not accept what the plaintiff says where it conflicts with what Leggatt says. I do not accept that Nick Clifford came to the surface on this first occasion as the plaintiff claimed (55). Both Leggatt and Clifford himself said that Clifford waited below (439, 496). More crucially the plaintiff said that she told Leggatt of the malfunctioning of the vest and then relayed to him an array of symptoms of discomfort which would have alerted him to lung pressure injuries. She claimed that she told him that she “... felt a bit weird, numbness in my legs. I felt a bit odd in my arms and stuff as well, a bit tingly”. She also said she was coughing (54). She also claimed that she told Leggatt that because of the way she felt she did not think she could swim back to the boat (55). The boat was then only six metres away and that a “mermaid line” from the boat was even closer (434).
I accept Leggatt’s retort which was in effect that she did not make any such complaints and if she had he would have realised that she had lung trauma illness and that she could not make a second descent (434, 435).
In accordance with Leggatt’s evidence I find that what was said and what happened on the surface after this first ascent is as set out hereunder.
Leggatt surfaced right next to the plaintiff (432). He inflated the plaintiff’s vest on arrival at the surface and then deflated it because it was too tight around her (438). He did that as a safety precaution to keep her above the water (438). They spoke and to do so removed their regulators (433). Upon Leggatt enquiring if she was okay the plaintiff replied that she was okay and that she had a little panic attack which was unusual for her (433). The plaintiff told Leggatt that she did not want to go back to the boat but said she wanted to “try again” (434). Leggatt saw no signs of stress or injury (437). In particular, the plaintiff made no complaint of anything which would indicate a lung pressure injury.
The plaintiff said that before the second descent, notwithstanding her complaints to him of patches of numbness, and tingling feeling and strange feelings in her arms and legs, Leggatt told her that he wanted to take Nick down and asked if she would be all right to go down again (54). The plaintiff’s evidence was effectively a contention that notwithstanding that he knew she was suffering what amounted to signs of barotrauma he pressured her into another descent. I do not accept that. It is implausible and it does not fit in with other evidence which is acceptable. For instance, it is clearly the case that at this point in time Nick Clifford was not on the surface. Further, if she was truly discomforted and if the vest was truly malfunctioning then why would the plaintiff have contemplated another descent? Yet she plainly did so. Further, when she reached the ocean floor the second time both her evidence and the evidence of Leggatt is that she gave the okay signal. Her evidence as to why in such circumstances she would have given the okay signal was effectively another assertion that she was subjected to pressure to do so (56). Again, I reject that.
The improbability of the plaintiff’s evidence as to circumstances leading up to the second descent is manifest. I reject the plaintiff’s version to the extent that it conflicts with the evidence of Leggatt and Clifford. In particular, I am not prepared to find that Leggatt, having been told of some of the symptoms of barotrauma ignored them and sought to take the plaintiff down to the ocean floor again. Also I find there was no complaint to Leggatt about the faulty operation of the vest. Indeed, on my findings hereunder, he operated the plaintiff’s vest at the surface and during the second descent and, I infer, found no problems.
I find in accordance with Leggatt’s evidence that the plaintiff did have a “little panic attack” when she arrived at the ocean floor which caused her to head for the surface on the first occasion. I find that she agreed to descend again because she wanted to “try again”.
I turn to the second descent.
At Broken Bottom – the second descent
I accept Leggatt’s evidence as to the second descent and what happened thereafter culminating in the plaintiff’s return to the boat. I now set out my findings as to these events.
The plaintiff and Leggatt spent only 30 seconds on the surface (437; dive profile Exhibit D15) before descending again. Leggatt took the plaintiff by the arm on the way down. He had the toggle of her vest and was dumping air as they descended (438). Again they reached a depth of approximately 10 metres (439). They sat on the bottom for a short time. Clifford was waiting nearby – a metre or so away (439). Leggatt visually checked the plaintiff’s gear, then after an exchange of the okay signal the trio headed off towards the reef (439, 440). Leggatt said that the plaintiff looked “relaxed” (439).
At Broken Bottom – the second ascent
However the plaintiff said that she “... felt like something was going to happen ... I needed to get to the top ...” (58). She said that having grabbed hold of Leggatt’s fin she started finning to the surface (58).
Leggatt felt the tug on his fin and turned to see the plaintiff again heading towards the surface (440). He caught her, took hold of her to the extent of wrapping his legs around her and he also pulled her dump toggle in order to arrest her ascent (440). The dive profile (Exhibit D15) indicated a vertical line meaning that this second ascent was “a quick ascent” (441).
On the surface after second ascent – en route back to Patawalonga
At the surface on this second occasion Leggatt again enquired of the plaintiff what had happened and the following exchange took place between him and the plaintiff:
“Yes. I asked her what happened again, and if she was feeling all right. She said she didn’t know what happened, she just felt a little bit panicky and shot to the surface. I asked her if she had any pains in her chest, which she said no. I asked her to take a deep breath to see if that would induce any pains in the chest, of which she said it didn’t. I said to her ‘That’s the end of the dive, we have to head back to the boat’. (442, 443)
It is clear that soon after the plaintiff and Leggatt broke the surface having ascended for the second time Nick Clifford came up also (443). In his evidence he said that, having witnessed the plaintiff swimming to the surface for the second time, he realised that the dive was over (498).
The plaintiff’s evidence was that at the surface this second time she was considerably disabled. She required help to get out of her gear and get into the boat (61-64). She said that upon getting into the boat she was crying (65). She said that she was also crying on and off during the boat journey back to the Patawalonga.
Again there is no support for this in any other evidence. Rather, I accept the following evidence as to the plaintiff’s wellbeing at the surface and en route back to the Patawalonga.
Leggatt said that at the surface and before boarding The Phantom she explained to him that she had panicked (442). On questioning by him she denied pains in the chest and at his instigation was unable to induce pains by deep breathing (443). He said that on repeated enquiries about her condition she protested that she was okay and rather apologised for ruining the dive (443). Leggatt’s evidence was that she had no special difficulties getting back to and boarding The Phantom. He said that she continued to apologise en route back to the Patawalonga but was not otherwise upset and in particular was not crying (445). Nick Clifford said that he heard the plaintiff apologising for ruining the dive (500), but otherwise noticed nothing unusual about her behaviour in the course of the journey back to the Patawalonga (499). Another witness Andrew Sprok, who was a General Motors Holden employee and who was also on the dive, said that he was engaged in conversation with the plaintiff on the boat journey back after the dive. He said that the plaintiff was embarrassed by what had happened but that she was not crying on the boat on the way back to the dock (512, 513). He said that she explained to him that “she panicked, nothing more ...” (513). He said in particular that she did not complain about any malfunctioning of her buoyancy vest (512). The Phantom was not a large vessel (445). It is highly improbable that the plaintiff was distressed and crying and was not noticed en route back to the Patawalonga. I accept without reservation the evidence of Leggatt, Nick Clifford and Andrew Sprok as to these matters.
Aftermath

At the boat ramp in the Patawalonga Leggatt gave the plaintiff a schedule of the groups’ forthcoming Thursday dive and invited her to join the group again (446, 447). Leggatt told the plaintiff that the dive profile was not good and that she should go home and rest for the day (447). He asked her if she had the diver’s emergency number and upon the plaintiff acknowledging that she had the number he advised her to ring it if she “felt any sensations that were unusual” (447).
I accept that all this took place.
The plaintiff packed her gear into her sister’s car. She said she experienced discomfort in doing so (68). She drove home and after unloading the diving gear at home she then took her sister’s car to the local mechanic. She said she did not feel well. Nonetheless she took the car around the corner, as it were, to the mechanic Michael Cottam (69). She said she was feeling “a bit unusual” (70). Both her parents and the motor mechanic, Cottam, confirmed that she appeared decidedly unwell (304-312). She said she was sore and had shoulder joint pain (70). She had an appointment with a physiotherapist at the nearby Marion Shopping Centre. She kept that appointment (71). En route home she called at a travel agency near the Centre. She claimed that she was “light headed a bit dizzy” (71).
That afternoon the plaintiff returned her hired diving gear to the Adelaide Skin Diving Centre at Compton Street (72) and there spoke with Sandy Szabo (72).
Szabo gave evidence. He said that the plaintiff returned the hired diving equipment at about 3.30 or 4pm on that day the 6^th February 1997 (527). Szabo knew about the plaintiff’s aborted dive in the morning. He said, and I accept it to be so, that the plaintiff upon returning the gear did not say anything about the buoyancy vest being defective (529). The plaintiff, when confronted with the contention that she did not report the vest as malfunctioning, initially agreed (95), then, in an unconvincing way, suggested that she attempted to complain but the staff, including Szabo, were not interested (96). I find that the plaintiff did not report the buoyancy vest as defective.
The plaintiff said that her feelings of discomfort continued. She said that she read or tried to read her dive manuals or dive literature (74). On Friday the 7^th February she said that she started to make a connection between her condition and the dive (75). She telephoned Anthony Leggatt at about 2.30 pm on that Friday seeking advice (447, 448) and she also telephoned Adelaide Skin Diving Centre and also sought advice from firstly Alexander Suslum (563) and then Sandy Szabo (529, 530). All urged her to go to the Hyperbaric Unit at the Royal Adelaide Hospital. She did indeed attend at that unit and was admitted by Dr Piers Robertson (552; see also Exhibit P7). Notably Dr Robertson’s notes as confirmed in his evidence (554) as to the history taken by him from the plaintiff was, inter alia:
“... some panic with rapid ascent ... buoyancy problems ... work hard against current ... felt well at surface but upset ...”
(The italics are mine.)
He also recorded that she made no complaint of “weakness/numbness”. What is recorded is inconsistent with the plaintiff’s evidence, namely that she had a battery of symptoms including numbness at the surface which she relayed to Leggatt (555; Exhibit P7).
Finally, Dr Christopher Acott, a specialist anaesthetist and the person in charge of the Diving Medicine Section of the Royal Adelaide Hospital gave evidence and provided two reports (see Exhibit P5). His evidence and his reports dealt with both the plaintiff’s alleged injuries and also scuba diving generally. Dr Acott is a scuba diver of considerable experience and conducts a diving incident monitoring service somewhat similar to that operating in the aviation industry. He confirmed his diagnosis as articulated in his report that the plaintiff suffered a pulmonary barotrauma and a cerebral arterial gas embolism in the diving incident on the 6^th February 1997 (259, 260). His view was that the plaintiff suffered a barotrauma in the first ascent (261). He said that there was objective evidence of the pulmonary barotrauma constituted by an x-ray showing a sliver of gas in the mediastinum. He explained that the mechanism was that air escaped through the lung wall which was ruptured by the pressure differential and into the chest area, in particular, namely the mediastinum (263). Dr Acott suggested that the plaintiff’s buoyancy problems may have been caused by her pressing the wrong button on the vest. Dr Acott also suggested that given the plaintiff’s periods of absence from diving she was “an accident waiting to happen” (297). He suggested that the following should have happened given her situation:
“Q.     What should she have done, in your view.
A.     I think she should have gone back and done a little bit of a refresher and the Adelaide Skin Diving Shop in those days was quite a good place for a refresher. You could go to the tank, they have a 30 foot or nine metre tank in the back, and just practise your basics before you went in, just to get yourself familiarised with what’s going on. An example of that is, I mentioned earlier, SPUMS, South Pacific Underwater Medicine Society. We go away once a year to places to go diving as a whole group of doctors. We’re interested in diving medicine. We also like to go to a place where we can go diving and we all send questionnaires out to anybody who comes, and anybody who hasn’t dived in 12 months, we get them in the water before they go diving, as a checkout dive to make sure, one, the equipment is all working and they’re happy and safe, ‘It’s good I’m back to where I was before’, and then we go diving again. It is a matter of just continuing your skills, basically. It’s a matter of a lot of skills, diving, and if you don’t practise them, you lose your ability to do them.
Q.     It is all hinging a bit on self-motivation.
A.     Self-motivation and ability, but mainly self-motivation to keep going.
Q.     You have got to cause these things to happen.
A.     Yes.”
What should have happened is a matter for me and so a matter for submissions and argument based on the evidence including the evidence just referred to.
Such are the factual circumstances and my findings in respect thereof.
Summary of Findings
Since I have incorporated my findings in a review of the evidence in a somewhat piecemeal fashion I now set out a summary of my findings.
After completing a diving course run by Adelaide Scuba Diving Centre the plaintiff on the 13^th September 1992 was certified as an open water scuba diver. Her tuition involved not only diving in the water tank at 7 Compton Street, but included four open water instructional dives off the coast of Yorke Peninsula at Ardrossan, one of them to a depth of 10 metres another to a depth of 12 metres.
The plaintiff did not dive again until approximately 1994. She was apparently incapacitated by reason of injuries suffered in a motor vehicle accident. In about 1994 she returned to Adelaide Skin Diving Centre and refreshed her skills by diving in the tank at 7 Compton Street. Later she dived at a site known as The Dredge in St Vincent’s Gulf, 6 kilometres or so off the coast of Glenelg. Whether she dived at The Dredge once or twice is not clear. Further, whether she scuba dived again in 1995 at Rottnest Island in Western Australia or elsewhere is also not clear. The only evidence as to the latter two dives is the plaintiff’s own ambivalent evidence and it is not capable of supporting a finding.
In about January 1997 she contacted Adrian Hunt at Adelaide Skin Diving Centre and enquired about resuming diving. I do not accept that she made it a condition of any dive that she do so in the company of an instructor dive master or supervisor. Further, I do not accept that she conveyed to him tentativeness and dependence. Hunt referred her for a dive on Thursday morning with the General Motors Group on the vessel The Phantom. As a result, the plaintiff contacted Tim Paterson and, as it were, booked her passage for the Thursday morning dive at Broken Bottom.
In particular, I find that there were no arrangements made prior to the morning of the dive about who would be her “buddy”. Nor did she speak with Anthony Leggatt prior to the morning of the dive let alone convey to him any preconditions to her embarking on this dive.
On the 5^th February 1997 the plaintiff attended at Adelaide Skin Diving Centre and hired the scuba diving equipment. She assembled the equipment in front of Adrian Hunt. The tank at 7 Compton Street was made available to her to enable her to refresh her skills but she declined to use it. In addition to the dive at Broken Bottom the plaintiff also registered with Adrian Hunt her interest in a dive she (but no-one else) said was to take place on the night of the 6^th February at The Wall and also a diving weekend at Edithburgh on the 14^th and 15^thFebruary 1997.
At about 7.30 am on Thursday the 6^th February the plaintiff arrived at the launch site at the Patawalonga. She there met Anthony Leggatt for the first time. On enquiry she told him that she had not done many dives “but was confident in the water” (450). It was decided that he would be her “buddy” and that he would also be the buddy of another novice diver in the group named Nick Clifford. The plaintiff boarded The Phantom and paid either Nick Angley or Tim Paterson the $25 fee.
At the Broken Bottom reef the boatswain and dive master, Nick Angley, gave the divers the usual briefing. The divers then entered the water. The plaintiff, Anthony Leggatt and Nick Clifford were the last divers to enter the water. They had previously checked one another’s gear. They descended along the anchor chain. They paused at the bottom and then gave each other the okay signal and headed off towards the reef. Anthony Leggatt was slightly ahead of Clifford and the plaintiff.
I accept that the plaintiff may have had problems achieving neutral buoyancy but she did not convey those problems to Leggatt. Nor did Clifford notice the plaintiff having any buoyancy problems (506, 507). She may have been pressing the wrong button on her vest. She panicked. She headed for the surface. Leggatt saw her and followed her. Nick Clifford, who was observing what happened, stayed below waiting.
Leggatt surfaced next to the plaintiff and adjusted her buoyancy vest. Upon enquiry by him the plaintiff said she was okay and that she had a “little panic”. She said to him that she did not want to go back to the boat but she wanted to “try again” (434). In particular, I find that the plaintiff made no complaint to Leggatt of symptoms of lung pressure illness or about the malfunctioning of the buoyancy vest. She and Leggatt spent only about 30 seconds or so on the surface on this first occasion.
They then descended together. Leggatt had hold of the plaintiff’s arm and by using the toggle on her buoyancy vest was releasing air from the vest as they descended. Again they reached a depth of 10 metres. Nick Clifford was awaiting them. Leggatt checked the plaintiff’s gear and again the trio exchanged the okay signal and headed off towards the reef. The plaintiff appeared to Leggatt as “relaxed” (493).
However, the plaintiff again panicked and after tugging at Leggatt’s fin started heading to the surface. Leggatt chased her and took hold of her attempting to arrest her ascent.
At the surface for this second time the plaintiff told Leggatt that she felt “a little bit panicky and shot to the surface” (442). Leggatt asked her about her wellbeing and in particular whether she had pains in the chest. He asked her to take a deep breath to see if that would induce any pain. The plaintiff did not complain of any discomfort.
That was effectively the end of the dive. Nick Clifford surfaced and the trio returned to the boat. Apart from embarrassment, the plaintiff did not display any obvious discomfort or disability in returning to The Phantom and during the return trip to the Patawalonga. En route to the Patawalonga she explained to a fellow diver, Andrew Sprok, that she had panicked. She did not complain about the buoyancy vest to anyone on The Phantom and nor did she complain of any symptoms which could be related to lung pressure illnesses.
Leggatt warned the plaintiff that the dive profile was “not good” and that she should rest and look out for any signs of lung pressure injuries. He ensured that she had the diver’s emergency number and he recommended that she use it if she “felt any sensations that were unusual” (447).
The plaintiff returned the diving gear to Adelaide Skin Diving Centre later in the course of the day. She did not complain of any malfunctioning of the buoyancy vest and nor did she at that time complain to the personnel there of any symptoms of discomfort. She did however in evidence contend that there were growing signs of discomfort in the course of that day.
It is not necessary for me to make findings as to the timing of the onset of any symptoms of barotrauma or CAGE, save that I conclude that the plaintiff did not complain of any such symptoms to witnesses involved in the dive until the following day, namely Friday the 7^thFebruary. Nor do I make any findings as to whether or not the plaintiff did indeed suffer such illnesses. The parties had not, as it were, joined issue on these quantum matters.
The plaintiff told Dr Robertson in the Hyperbaric Unit at the Royal Adelaide Hospital on the 7^th February that she, inter alia, “felt well at the surface but upset” and that she experienced no “weakness or numbness” (554, 555; Exhibit P7).
The applicable legal principles
Whilst all counsel have focussed their submissions on common law negligence I assume that the plaintiff has not abandoned the pleaded claims of breach of contract against Adelaide Skin Diving Centre. I will regard the beaches of duty which were the subject of addresses on the final day of the trial and as particularised by me in paragraph 9 to 20 above as either a duty of care in tort or an implied term of the contract of hire struck between the plaintiff and Adelaide Skin Diving Centre.
The cause of action against Anthony Leggatt is of course confined to negligence.
In Kenny & Good v MGICA (1992) Ltd (1997) 77 FCR 307 the Full Court of the Federal Court said at 322:
“To succeed in a claim for damages founded on the negligence of the respondent (defendant), the applicant (plaintiff) must show that
·the respondent owed the applicant a duty, recognised by law, requiring the respondent to adhere to a certain standard of conduct
·the respondent breached that duty
·the applicant suffered loss
·the loss was caused by the respondent’s breach of duty
·the loss suffered by the applicant was not too remote — that is, on the principle laid down in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The “Wagon Mound”) No 1 [1961] AC 388, the injury complained of was not only caused by the alleged negligence, but was also an injury of a class or character which was reasonably foreseeable as a possible result of the negligent act or omission.”
In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 475 and 476 Kirby J set out the following more expansive set of questions:
“1.    Is a duty of care established? (The duty of care issue.)
2.     If so, what is the measure or scope of that duty in the circumstances? (The scope of duty issue.)
3.     Has it been proved that the defendant is in breach of the duty so defined? (The breach issue.)
4.     If so, was the breach the cause of the plaintiff’s damage? (The causation issue.)
5.     (Where relevant.) Were the defaults alleged on the part of the public authority within the area of the authority’s legitimate discretion on questions of policy and allocation of resources so that there was no duty of care owed to the plaintiff? Or was any suggested breach a matter left by law to the authority whose decision the courts would respect and uphold against the plaintiff’s complaints? (The policy/operations issue.)
6.     (Where relevant.) Has contributory negligence on the part of the plaintiff been proved and, if so, with what consequence? (The contributory negligence issue.)”
(See also Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183 per Kirby J at 227 [229]).
Notwithstanding a number of significant developments in the law of negligence in the last decade, as seen in a series of recent High Court decisions, the principles discussed in Wyong Shire Council v Shirt (1980) 146 CLR 40 repeatedly are referred to with approval by the High Court Justices (see Graham Barclay Oysters (supra) per Mason CJ at 194 [47] per McHugh J at 205 [106, 107] Gummow and Hayne JJ at 221 [193]; see also Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 per Mason CJ at 472 [397] per McHugh J at 482 [72, 74] per Kirby J at 493 [109] per Hayne J at 502 [137, 138]).
So the two time-honoured propositions of Mason J, as he then was, in Wyong Shire Council v Shirt (supra) are still relevant and important:
As to the existence of a duty of care Mason J said:
“According to Lord Atkin’s statement of principle in Donoghue v. Stevenson [1932] AC 562 at p580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v. Dorset Yacht Co. Ltd [1970] AC 1004 at pp1027, 1034, 1054, 1060; Anns v. Merton London Borough Council [1978] AC 728 at pp751-752).”
(44)
As to whether there is a breach of the duty Mason J said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
(47, 48)
Foreseeability of harm alone is not sufficient to indicate the existence of a duty of care (see Sullivan v Moody (2001) 207 CLR 562 at 67 [42]; Graham Barclay Oysters (supra) per Gleeson CJ at 187[0]; Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 per Gleeson CJ at 268 [35] per Hayne J at 288, 289 [100, 101]). However, foreseeability together with other considerations is still relevant to the enquiry as to whether a duty of care exists (see Modbury Triangle (supra) per Gleeson CJ at 267 [30]).
A number of factors have emerged from the recent authorities which, together with foreseeability, are relevant to the question of whether a duty exists. Though some of the factors set out below have emerged in the context of deciding whether a public authority owes a duty of care, I would suggest they are of general application.
·Power of the defendant to control
(see Graham Barclay Oysters (supra) at [20], [90-95] and [149-152]; see also Modbury Triangle (supra) per Gleeson CJ at 264 [21])
·Vulnerability of plaintiff to harm
(see Perre v Apand Pty Ltd (1997) 198 CLR 180; see also Graham Barclay Oysters (supra) per McHugh J at 200 [84]; see also Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1)
·Reliance
(see Modbury Triangle (supra) per Gleeson CJ at 264 [22]).

I turn to examine three cases referred to in argument.
The case of Woods v Multi-Sport Holdings Pty Ltd (supra) is factually similar to this case. Woods lost the sight in an eye as a result of being struck in the eye whilst batting in a game of indoor cricket at the defendant’s arena in Belmont, a suburb of Perth. He attempted to pull a full toss and the ball ricocheted from his bat into his eye. The plaintiff contended that the defendant was negligent in two respects, namely by:
·failing to provide any warning or install any warning signs of the dangers of indoor cricket, in particular the risk of eye injury; and
·failing to provide any or any proper eye protection or guarding while playing indoor cricket.
There was no dispute that the defendant owed a duty of care to the plaintiff. The content of the duty and, in particular, whether there was a breach was the issue. The trial judge French J found:
·that the practice of playing indoor cricket without a helmet was not an unreasonable disregard for the safety of players such as the plaintiff;
·that being hit by the ball during the course of play was an inherent or obvious risk known to the plaintiff as opposed to an unusual or hidden danger; and
·that the risk of being hit by the ball was such an obvious risk there was no duty to warn of the specific risk of serious eye injury.
Accordingly, the trial judge found no negligence. The Full Court of the Supreme Court of Western Australia agreed. On appeal to the High Court the High Court by a majority affirmed the decision of the Supreme Court of Western Australia (Full Court).
Mason CJ said, inter alia, of the applicable principles:
“Because the concept of foreseeability in the law of negligence has been taken to embrace risks which are quite unlikely to occur, and to mean only that a risk is not one that is far-fetched or fanciful, many of the cases which discuss the approach to be taken by a tribunal of fact in deciding whether there has been a breach of a duty of care speak in terms of balancing the magnitude of the risk with the cost or inconvenience of preventing it. But, as Mason J pointed out in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, ultimately the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk.
In some cases, of which the present is an example, a court is not confronted with a risk that is quite unlikely to occur; it is dealing with an activity which carries with it the possibility of injury, including serious injury, in a number of different forms. The appellant was not a child, and he was not being compelled to play the game. He was an adult who chose, for his personal enjoyment, to play. That the activity is risky is plain to anyone who understands what it involves, including the respondent. The respondent carried on the business of providing facilities for persons such as the appellant to play the game. The question for the tribunal of fact was what reasonableness required by way of response from the respondent, having regard to the respects in which the respondent was alleged to have been negligent.
Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say “may”, because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case.”
(472-473 [39-41])
Accordingly, Mason CJ held the view that there was no basis for interfering with the trial judge’s conclusion that it was not reasonable to expect the respondent to provide players, such as the appellant, with some protective head gear bearing in mind:
·that there was none designed for the game;
·that none were worn generally in the game;
·that the rules did not provide for head gear; and
·that there were considerations of safety and convenience which dictated against it.
Further, Mason CJ detected no error in the trial judge’s conclusion that no warning was necessary given the obviousness of the risk of injury – a risk which was well known to the appellant.
Justices Hayne and Callinan agreed with the Chief Justice.
At 503 and 504 Hayne J said in relation to the question of obviousness:
“The obviousness of the risk that a player participating in an indoor cricket match may be hit by the ball (whether on the head or elsewhere) bore upon whether the respondent had acted unreasonably in not warning the appellant of this danger or in not providing protective helmets.
The trial judge found that the risk of being hit (by the ball, by a bat, or by another player) was an obvious risk of the sport. When one of the recognised techniques of the sport is to bowl the ball at the player who is batting at such a speed that it cannot be hit, the risk of being hit by the ball when batting is indeed obvious. It is no less obvious that the risk of injury would vary according to the part of the body that is hit, according to the force of the blow, and according to what it was that struck the blow -- the ball, the bat, or another player. And in a fast moving and energetic game like indoor cricket, a collision with any of the equipment used in the game or with another player may be very serious indeed. A blow to the head or to the region of the eye could well cause very serious injury -- more serious than a similar blow to some other part of the body. That a player could suffer serious injury, even permanent and disabling injury, by playing this sport was evident to all participants in it. Reasonable care did not require the respondent to warn participants of that. Nor was there any reason to single out one form of injury and warn of that. There is, therefore, no reason to disagree with the trial judge’s conclusion that reasonable care did not require the respondent to warn of the specific risk of eye injury.”
On the other hand the minority Justices, McHugh and Kirby, held that in at least the two respects, the respondent was negligent.
I was referred to a Supreme Court of Queensland decision of McElwee & Anor v Ansett Transport Industries (Operations) Pty Ltd [1997] QSC 164. In that case, the plaintiff, who had no experience of sailing, hired a catamaran at a tourist resort operated by the defendant on South Molle Island in the Whitsunday Passage. He, his wife and child set off on the catamaran without any tuition at all. In the course of attempting to turn the vessel around the boom struck first his wife and them himself in the back of the head. He sustained injuries and sued the defendant, firstly, for breach of duty arising from the contractual relationship and, secondly, for breach of duty in tort. In the Queensland Supreme Court Williams J held that the defendant was under a clear duty to warn guests, such as the plaintiff, of the risks associated with the use of the catamaran and give appropriate instructions as to its safe use. Neither the plaintiff nor his wife were given any instruction. The trial judge was satisfied that the plaintiff did not by reason of his inexperience appreciate the risk of sailing the catamaran and concluded that he would not have attempted to do so without tuition if warned of those risks. At page 8 of the unreported decision Williams J said:
“The defendant breached the duty it owed the plaintiffs in failing to warn the first plaintiff of the risks involved in sailing the catamaran and in permitting him to take out the catamaran without ascertaining his experience and without ascertaining whether or not he had attended a lesson in handling catamarans”.
Finally, I was referred to a Victorian Court of Appeal decision of Mountain Cattlemen’s Association of Victoria Inc v Barron (1998) 3 VR 302. In that case the plaintiff, an experienced horsewoman, attended a “get together” of the Mountain Cattlemen’s Association of Victoria. Upon arrival she led her horse to the waters edge of a river so that it could drink and cool down after the journey. The horse slipped on a rock, lost its balance and fell onto the plaintiff, breaking her leg. She sued the Mountain Cattlemen’s Association for damages. The claim of the plaintiff (respondent) was originally framed, inter alia, in common law negligence. At trial, however, she was treated as relying on s14B of the Wrongs Act 1958 (Victoria) and upon a contractual term. The trial judge found that the plaintiff’s injuries were caused by the breach of the duty of care imposed by the statute. He did not deal with the claim in contract. The Court of Appeal, by a majority, allowed the defendant’s appeal and set aside the judgment. I consider the case is of minimal guidance, given that it is primarily concerned with the interpretation of the Victorian statute.
I now apply the above principles to the facts as found by me.
Conclusion
Liability of first defendant – High Bentham Pty Ltd
Firstly, the allegation that the first defendant failed to ensure that the diving instructor responsible for the dive was properly qualified and skilled, fails on the findings of fact as made by me. That is, I do not accept that the plaintiff required or the defendant promised that an instructor would accompany the plaintiff on the dive. Accordingly, it cannot be a term of any contract, nor, for the reasons which follow, can the failure of the first defendant to have an instructor accompany the plaintiff constitute a breach of duty or ground of negligence.
The other two grounds of negligence and/or breach of duty, namely that the first defendant:
·failed to instruct the plaintiff as to the proper use of the diving equipment hired to her; and
·failed to advise the plaintiff as to the risks and dangers associated with the dive,
are subsumed under the more general argument that the first defendant, Adelaide Skin Diving Centre, by its servant or agents, well knowing that the plaintiff was a novice, should neither have hired diving equipment to her nor made arrangements for her to embark upon an open water recreational dive without insisting on her undergoing more tuition.
The first defendant plainly owes a duty of care to the plaintiff. The relationship of proximity is that of hirer and hiree. Adelaide Skin Diving Centre ought not to hire scuba diving equipment which is not fit for its purpose and nor should it hire equipment to a person who was not qualified to scuba dive. The issue is whether the scope or content of the duty extends so far as requiring that any hire of equipment and consequential referral for a dive be contingent upon the first defendant being reasonably satisfied that the person hiring the equipment is not only qualified but also does not need further instruction or a refreshing of diving skills.
The witness Alexander Szabo in 1997 was the sole proprietor of Adelaide Skin Diving Centre. He said that the procedure followed in 1997 when hiring scuba diving equipment to the public was firstly, to require the production of the diver’s qualifications and then secondly, require the hirer to assemble the equipment which in his experience was some indication of the level of competence. He described in evidence the apparently complex tasks necessary to properly assemble the equipment (522-524). He said also that divers would be offered free use of the diving tank to enable them to refresh their skills; such refreshment of skills was encouraged (525, 526). The witness Adrian Hunt knew the plaintiff’s history but still he required her to assemble the equipment.
I have some doubt about whether the first defendant needed to go that far. The plaintiff’s contention was necessarily more far-reaching. Effectively it was a contention that Adelaide Skin Diving Centre had to be alert to whether or not a customer hiring equipment was not only qualified but also had sufficient experience to contend with the risks associated with scuba diving.
Scuba diving plainly has some risks associated with it. For instance, the evidence satisfies me that until the diver has completed a number of dives – Dr Acott suggests between 20 and 50 (296) – he or she could not be regarded as experienced. Therefore, for novice divers, such as the plaintiff, lung pressure injuries as a result of rapid ascent provoked by, for instance, panic, are foreseeable. However, that does not, without more, give rise to a duty of care. Adelaide Skin Diving Centre could no doubt decline to hire equipment to inexperienced albeit qualified divers. However, to fix Adelaide Skin Diving Centre with such an ill-defined obligation is not reasonably required by way of response to that risk.
Counsel for the plaintiff, Mr Martin, argued that the defendant’s knowledge of the fact that the plaintiff had not dived for some time justified the imposition of such a duty. I do not agree. She understood the risks. She was qualified to dive and, moreover, had refreshed her skills once before and declined to do so again. Reasonableness would not demand that Adelaide Skin Diving Centre embark on some form of enquiry overt or otherwise designed to test whether a properly qualified diver should or should not hire equipment and be told or not of forthcoming dives.
In the relationship, the first defendant was not empowered to control the plaintiff in the same way as, for instance, exists in the relationship of teacher and student and employer and employees. Further, the plaintiff was not especially vulnerable to harm bearing in mind her qualification and a smattering of experience. She was not, on my findings, reliant on the first defendant. She contemplated refreshing her skills but ultimately declined to do so. She was, to use the language of Gleeson CJ in Woods at 472, “not a child”.
So these factors and indeed the entirety of the relationship does not indicate the existence of a duty of care of the scope or content contended for by the plaintiff. If any such duty of care existed it was discharged by the Adelaide Skin Diving Centre requiring the production of scuba diving qualifications together with the demonstration of competence conveyed by assembling the equipment, and the provision of an opportunity to perform a tank dive.
So too, I reject the contention that Adelaide Skin Diving Centre when hiring equipment was obliged to warn persons, such as the plaintiff, of the risks of injury involved in scuba diving. The risks were obvious to the plaintiff. The content of her tuition included warnings against the dangers of rapid ascents (see Instruction Manual Exhibit D8). The comments of Gleeson CJ and Hayne J in Woods about the obviousness of the risk of harm are apposite (see Woods (supra) per Mason CJ at 473, 474, per Hayne J at 503, 504). This case is plainly distinguishable from McElwee. The plaintiff in that case hired the catamaran and set off with no enquiry being made of his expertise, no tuition given to him and no warning given, in particular, as to the movement of the boom across the vessel when it changed direction.
In my view, therefore, the first defendant, Adelaide Skin Diving Centre, did not owe to the plaintiff a duty of care, the scope and content of which was as argued for by the plaintiff. The duty of care did not extend to declining to hire equipment and declining to recommend opportunities for diving to persons in the plaintiff’s situation unless and until they refreshed their diving skills, nor did it extend to warning such person of the dangers of scuba diving.
Accordingly, the plaintiff has not established against the first defendant either breaches of implied contractual terms or negligence.
Liability of the third defendant – Anthony Leggatt
I turn now to the claim against the third defendant, Anthony Leggatt.
On the basis of my findings Anthony Leggatt knew:
·that the plaintiff, a certified open water scuba diver, was joining his group;
·that she had not done many dives; and
·that she was nonetheless confident in the water
The claim against him that he undertook the supervision of the dive without appropriate qualifications and skill is disposed of by my factual finding that there was no arrangement between the plaintiff and Adelaide Skin Diving Centre or with him that he, in some way, take charge of and supervise the plaintiff’s dive as would an instructor engaged for the purposes of instructing.
The second ground of negligence was that Leggatt failed to advise the plaintiff of the risks of the dive. That argument was not prosecuted, at least not in those terms. In the end, counsel for the plaintiff, Mr Martin, contended that Leggatt ought to have ensured that the plaintiff had on each occasion adjusted her buoyancy vest so as to achieve neutral buoyancy. The third ground of negligence, namely that he failed to ensure that the plaintiff knew how to use the diving equipment correctly is embraced by that general contention.
These claims against Anthony Leggatt call into question the duty of care owed by one buddy to another. I say at the outset that I am hesitant to say categorically that the law should impose a legally sanctioned duty of care on the buddy system which is apparently used so effectively by the scuba diving community, particularly, bearing in mind that scuba diving is an entirely voluntary non-commercial and recreational activity. Buddying with another diver can be a “dive by dive” proposition and is not easily given to any formal structuring. So, I query whether the buddy relationship should be made the subject of the strictures of the law of negligence. In this connection I have in mind the laws reluctance, for good policy reasons, to intrude into the relationship between parent and child (see Hahn v Conley (1971) 126 CLR 276; Robertson v Swincer (1989) 52 SASR 356; Towart v Adler (1989) 52 SASR 373).
However, in the light of my ultimate decision it is not necessary for me to explore such reservations. I will proceed on the basis that the common law of negligence applies to this relationship.
There was very little evidence given about the “buddy system”. Of course the standards imposed by the sport are not necessarily binding on me. The ultimate question is not so much whether Anthony Leggatt’s conduct conforms with the system, but whether it conforms to the standard of care demanded by the law. However, the starting place is the system. What is required by the system may decide the issue of negligence (see F v R (1983) 33 SASR 189 per King CJ at 194).
Clearly the role of a buddy is not that of an instructor, even if the experience of one buddy markedly outweighs that of the other. At p 80 of the FAUI Scuba Diver’s Course Notes (Exhibit D8) some parameters of the buddy system are listed as follows:
“The Buddy System
·Never dive alone.
·Never leave your buddy.
·Ensure adequate training and fitness for the planned dive.
·Know each other’s hand signals.
·Return hand signals to ensure understanding.
·Know the “lost buddy procedure” i.e. circle 360 degrees, ascent 3-5 metres, circle 360 degrees again, if no contact, surface.
·Ensure adequate skill with buddy-breathing and octopus breathing.
·Have knowledge of diving ailments, first aid and rescue techniques.
“Be The Buddy You Wish To Dive With””
There is no other evidence about the buddy’s obligations, save that Dr Acott in his reports confirms that a buddy is required to be watchful as to whether his fellow diver is, for instance, suffering any lung pressure illness symptoms.

So in my view, if common law principles of negligence apply Anthony Leggatt’s duty is to take all reasonable care to avoid acts or omissions which he could reasonably foresee would be likely to cause harm to the plaintiff (see Donoghue v Stevenson (supra) at 580 per Lord Atkin).
The argument of the plaintiff is predicated upon the plaintiff being unable to achieve neutral buoyancy as opposed to her simply panicking and, as it were, fleeing to the surface. I have accepted in my findings that the plaintiff could have had problems achieving neutral buoyancy. I note for instance that she complained to Dr Robertson about problems with buoyancy. I will proceed on the basis that she did have problems achieving neutral buoyancy and that precipitated the panic which she disclosed to her fellow divers.
I do not accept that it ought to be the function of the buddy to attend to his diving companion’s buoyancy. The evidence discloses that achieving neutral buoyancy is a rudimentary function of a scuba diver. It is rather a matter personal to the diver as he or she adjusts his or her buoyancy vest to achieve that feeling of almost weightlessness. Nick Clifford said that buoyancy is the individual’s own responsibility (505). Leggatt said the same (461). All the diving evidence in the case indicates that achieving neutral buoyancy is a basic requirement and a part of tuition leading to certification. However, if the plaintiff was having obvious difficulties with buoyancy then Leggatt as her buddy ought reasonably to have assisted her. I note that he did so to an extent on the second descent. However, I accept Leggatt when he said that on the two occasions when the trio paused at the bottom he saw no sign that the plaintiff was having difficulties and moreover on each occasion she gave him the okay signal prior to the trio moving off to the reef. Further, the other novice diver, Nick Clifford, said that he did not see the plaintiff having any buoyancy problems (505). He insisted that he had the plaintiff within his view and if she had been bouncing on the bottom, as she claimed, he would have noticed it and bought it to the attention of Anthony Leggatt (507, 508). He insisted also that they did not head off until the okay signal had been given (504).
So in my view, though Anthony Leggatt, as the plaintiff’s experienced buddy, owed the plaintiff a duty of care, namely to ensure that she was comfortable and ready to move along the ocean floor to the reef, and if necessary to assist her achieve neutral buoyancy in all the circumstances he did all that was reasonable to comply with that duty and therefore was not in breach.
Accordingly, the plaintiff has not established against the third defendant that he was negligent.
Final Orders
In respect of the plaintiff’s claims against the first defendant, High Bentham Pty Ltd (Adelaide Skin Diving Centre) there will be judgment for the defendant.
As indicated, there was no evidence of neglect or breach of duty adduced against the second defendant, Glenelg Scuba Diving Club Incorporated. Indeed, as indicated, counsel for the plaintiff accepted that there could be no judgment against that body. Accordingly, there will be judgment in favour of the second defendant, Glenelg Scuba Diving Club Incorporated.
So too, the plaintiff has failed to prove negligence against the third defendant, Anthony Leggatt, and there will be judgment in his favour.
I will now hear the parties as to costs.