Woods v Roberts No. Scgrg-96-2299 Judgment No. S6467

[1997] SASC 6467

WOODS  v  ROBERTS

Full Court
Coram:  Doyle CJ, Matheson and Bleby JJ

Bleby J

The appellant was the plaintiff in an action brought in the District Court in which he claimed damages for an injury sustained as a result of the alleged negligence of the respondent.  He was struck in the left eye by a golf ball hit by the respondent.  As a result he now has about 30% vision in his left eye.  The learned trial judge dismissed the action, and it is against this decision that the appellant now appeals.

The appellant was aged 38 at the time.  He was only about 5 feet 1 inch or 155cm tall, having been a professional jockey until 1983.  He was then injured in a riding accident and, as a result, suffered an 86% reduction in the total visual efficiency of his right eye.  The combined effect of both injuries is that the appellant is almost blind.

At all material times the appellant and the respondent were members of the Flagstaff Hill Golf Club (“the Club”).  At about 11am on 30 November 1992 the appellant, having completed the morning shift of his work as a stablehand, decided to play a round of golf at the Club.  He went to the Club alone, and there met Mr Fulton, who was a fellow member of the Club.  The two agreed to play together.  They completed the first three holes, and were in the course of playing the fourth when the accident occurred.  By all accounts neither the appellant nor Mr Fulton were particularly adept golfers, with the appellant giving evidence that he had a handicap of 29.

The respondent was aged 17 and a student.  He began a round of golf that day with his girl‑friend, Ms McKinney, a non‑golfer, who acted as his caddy.  The respondent saw Mr Fulton and the appellant as they were preparing to hit off from the first tee.  His evidence was that another single player then hit off before he did, but that by the time he had reached the third green this single player was no longer between him and the appellant and Mr Fulton.  He inferred that the appellant and Mr Fulton had allowed the single player to play through them before they had hit off from the fourth tee.  However, the appellant in his evidence did not recall that this had ever occurred.

After he had completed the third hole the respondent said that he noticed that the appellant and Fulton were still on the fourth tee, so he decided to take a few practice puts on the third green while they hit off and vacated the fourth tee.  The respondent and Ms McKinney duly made their way onto the fourth tee.  It was the respondent’s shot from this tee which injured the appellant.

Before I deal with the facts in any further detail, it is necessary to describe the layout of the fourth hole.  I take this description partly from evidence led at the trial and partly from further information contained in, and photographs exhibited to, two affidavits of Russell David Watkins, sworn after the judgment had been delivered in the District Court and received in evidence on the hearing of the appeal, in circumstances to which I will later refer.

The fourth hole was a par 5 hole of some 485 metres.  The width of the tee on the fourth hole was approximately 10 metres from left tee block to right tee block.  The green was not visible from the tee.  From the tee the fairway took a slight dogleg to the left, and there were some small man‑made mounds in the rough on the left‑hand side of the fairway extending to within about one metre of the left‑hand side of the fairway.  These mounds were located between approximately 150 and 200 metres from the tee block.

The fairway followed generally the line of a small creek to its left, and at a point near the mounds the creek was approximately 25 metres from the left‑hand edge of the fairway.  Along the line of the creek there were some substantial trees growing.  At the point near the mounds the trees were on either side of the creek.

At a point which I would estimate from an aerial photograph as being between 50 to 100 metres from the tee there were a number of young trees on the left‑hand side of the fairway and close to its edge.  I will refer to these as the “young trees”.  The foliage on the young trees, when viewed from the fourth tee, was quite dense and reasonably close to the ground, and from the left‑hand side of the tee block these trees effectively obscured any view of the mounds from the tee block.  From the right‑hand side of the tee block the mounds were partially visible.

The mounds were quite low, and were insufficiently high to conceal a person even of the appellant’s height, while standing, when viewed from a position at or near the tee block.

The appellant gave evidence at the trial that he hit off first from the fourth tee block and that he did this from about the mid‑point of the tee block.  His shot was a good one.  It travelled a distance of about 200 metres and landed close to the centre of the fairway, just beyond the mounds.  Mr Fulton hooked his first shot into some trees and tall grass over the creek.  He did not bother to retrieve that ball but teed off with another.  His second shot hit the upper foliage of the young trees and disappeared from sight.  The two men then made their way down the fairway.  Mr Fulton went off to the left to find his ball.  The appellant went to his ball in the centre of the fairway.  He turned to watch Mr Fulton take his second stroke but noticed that Mr Fulton was still looking for his ball.  He decided to go and assist him, leaving his golf clubs and buggy on the fairway close to his ball.  The appellant claimed that he was walking on the fairway in a direction towards Mr Fulton and about 30 metres from Fulton when he was hit by the respondent’s ball.  He had never at any stage noticed any other golfers on the fourth tee.  If the appellant was hit at the point where he said he was on the fairway, he was plainly visible from any point on the fourth tee.

The appellant in evidence denied that there had been any conversation between him and Mr Fulton as he was approaching Fulton.  He also denied that he had seen Fulton signalling to the respondent inviting him to play through because of the delay in finding Fulton’s ball.

The respondent said that when he arrived on the fourth tee he saw Mr Fulton towards the left‑hand edge of the fairway at a distance of about 150 metres from the tee block.  Apart from Mr Fulton he saw no other people on the fairway.  The respondent was a left‑handed player.  Because he tended to hit the ball with a slice, on this hole he teed up on the left‑hand side of the tee block to enable him to have more fairway to aim at.  He intended to aim towards the right‑hand side of the fairway in the hope that the ball would come back into the centre.  He was therefore standing to the left of centre of the tee block.  He said that he and Mr Fulton having seen each other, Mr Fulton raised his club in the air, an action recognised as being an invitation to play through.  He acknowledged that by raising his own club in the air.  He was aware that there were two players ahead of him, and he took the invitation to be on behalf of both of them.  That was not unexpected if there were some hold‑up with the group ahead, and was in accordance with universally accepted courtesy and with the Rules of Golf which were in evidence.  His shot was not a good one.  It kept low, passing just to the right of the young trees, and veered left towards the tree line by the creek, and disappeared out of sight.  It was that shot which hit the appellant.

There was no dispute that the appellant fell where he was hit, and was in that position when attended to by Mr Fulton and the respondent.  The respondent gave evidence that he found the appellant lying between the mounds, but at a distance from the edge of the fairway which varied at different points in his evidence.  At one stage he said that the respondent was “not more than five metres in from the tree line along the creek”, but as the trees were on both sides of the creek, that was a little unhelpful.  At another point in his evidence he described the position as “not far from the creek line”.  At another point in his evidence he described the position as being about a metre or so from the mown edge of the fairway, which would be at a point near the commencement of the mounds nearest the fairway.

Ms McKinney generally gave evidence which supported the respondent.  She placed the appellant between the mounds roughly midway between the tree line and the edge of the fairway.  When she indicated that position on one of the photographs comprising Exhibit P1, she agreed that it was a point which was not visible from another photograph taken from just behind the tee block to the right of centre of the tee block.

At the trial, there were therefore two major factual issues in contest.  The first was the position of the appellant at the time he was hit by the respondent’s golf ball.  The appellant claimed that he was well out on the fairway and visible from the tee block.  The respondent and Ms McKinney put the appellant off the fairway between the mounds, but certainly not closer than one metre to the mown edge of the fairway.  The second issue was whether or not Mr Fulton had waved the respondent through before the respondent hit his ball.

Resolution of both those issues would have been materially assisted by the evidence of Mr Fulton.  However, he died before the trial.  The appellant’s solicitor gave evidence of a conversation that he had had with Mr Fulton some seven months before the trial, and the learned trial judge admitted into evidence some handwritten notes of the conversation made by the solicitor.  Those notes were unhelpful in determining the position of the appellant, but the inference to be drawn from the handwritten note was that Fulton denied having called the respondent through.

There was also admitted into evidence a draft typed statement dated 26 March 1993 signed by the appellant containing some handwritten alterations (Exhibit D5) and a further typed statement incorporating those alterations dated 29 April 1993 also signed by the appellant (Exhibit D6).  These statements were based on information given by the appellant to a loss adjuster, Mr Christophersen, in the course of an interview conducted on 4 February 1993.  Mr Christophersen’s handwritten notes of that interview were also tendered (Exhibit D9).  Both the typed statements contain the following passage:

“I could see that he (Fulton) was in difficulty looking for his golf ball.  I left my buggy down on the fairway and walked back.  As I walked back to him he told me that he had called through two other players.  Keith thought it was Scott Nicholls and the other player who was with him, Matthew Roberts.  As I walked back towards Keith Fulton I was struck in the eye with a golf ball.”

The passage in italics was one of the additions made by the appellant to the first draft.  The reference to Mr Fulton having said that he called through the other players and to the appellant’s walking back towards Fulton when he was struck was supported by Christophersen’s handwritten notes.  This statement was inconsistent with the appellant’s evidence at trial.  When cross‑examined about the making of the statement the appellant said that he had “made a mistake with the statement” which due to an obvious oversight he had failed to correct upon subsequent readings of it, and that it should have read that he had been told of two players being called through after and not before he was hit by the ball.

Where there was a conflict between the evidence of the appellant and the respondent, the learned trial judge said that he preferred the evidence of the respondent.  Accordingly, he made the following relevant findings of fact:

“In particular, I find that the plaintiff was in the position described by the defendant, a distance of about 173m from the tee amidst the mounds, as measured by Mr Christophersen, when struck.  This position and distance is coincident with the evidence given by the defendant as to the whereabouts of Mr Fulton at about 150m from the tee and the plaintiff’s evidence that he was about 30m from Mr Fulton when struck even though he had Mr Fulton in a different position.  The defendant’s evidence is substantially supported by that of Miss McKinney, who was a good witness in relation to the majority of matters.

I find that the plaintiff was out of the sight of the defendant when the defendant struck the ball.  I find that when he realised that Mr Fulton was still searching for his ball, he walked from his buggy towards the mounds and creek line at about 200m from the tee intending to walk towards the tree line searching for the lost ball in about the line which he knew it had taken.  As the plaintiff was doing so, Mr Fulton must have realised his obligation under the Rules not to waste time and to call trailing players through and so as to fulfil that obligation walked from where he was searching to the fairway from where he could see the fourth tee.  He then gave the signal the defendant referred to.  I accept that the plaintiff did not see him do so.”

Not surprisingly, the appellant’s statement to Mr Christophersen had been the subject of substantial cross‑examination, in the light of the appellant’s inconsistent evidence given at the trial.  The learned trial judge was not satisfied with the appellant’s explanation for his earlier statement, in relation to which he made the following findings:

“When his statement so made was engrossed and he was asked to check it for errors and initial it, he did, as Mr Trim pointed out, pay particular attention to detail by alterations which he directed be made to the statement without in any way altering the statement to the effect that he had been so told by Mr Fulton prior to being struck.  Further, the amended statement was further engrossed by the insurance assessor, Mr Christophersen, and returned to the plaintiff who again read and signed it in the presence of a witness without making any further alteration.  So, as Mr Trim pointed out in his address, the plaintiff had on three occasions, much closer to the incident than the time of trial, failed to alter this statement which at trial he said was wrong.  In evidence he was able to give no adequate explanation for his oversight in not making an alteration to the statement so as to reflect what he now says is the true position.”

The learned trial judge concluded that it was more probable than not that what was set out in the statement in fact occurred, and that the plaintiff knew of Mr Fulton’s intention to call the respondent through as a matter of courtesy.  The trial judge observed that this was contrary to the inference to be drawn from the solicitor’s notes of the conversation with Mr Fulton, but he was not prepared to act on that statement and to reject the direct evidence of the respondent and Ms McKinney, supported as they were by the appellant’s statement to the loss adjuster.

Having made those findings, the question which the learned trial judge posed for himself was “whether the defendant, knowing that there were two players ahead of him and not having followed them by sight as they walked from the fourth tee and seeing one signalling player closer to him and a buggy further on, was obliged to wait further before hitting so that he could be satisfied that the unseen player, wherever he may be, was safely out of harm’s way”.  He held that, having been called through by Mr Fulton, the respondent was entitled in those circumstances to infer that the inviting player had told his partner of that fact, and that those players were in a safe position for the respondent to hit his ball, even though they were within range of being hit.  He gave judgment for the respondent.

The appellant’s principal ground of appeal related to the discovery by the appellant, after judgment, of the existence of another material witness - material at least to the position of the appellant at the time when he was struck by the golf ball.  At the time of the accident Mr Russell Watkins was employed as a casual greenkeeper by the Club.  He ceased his employment early in 1993.  He it was who, when the alarm was raised, drove a vehicle to the point where the appellant was lying, rendered assistance to the appellant and drove him back to the clubhouse from whence he was eventually driven to the Flinders Medical Centre by another employee.  Mr Watkins’ evidence as to where the appellant was when he arrived, and hence where he was when he had been hit, was therefore of crucial importance.  The appellant argued that the judgment should be set aside and a retrial ordered.

On the hearing of the appeal we admitted two affidavits of Mr Watkins.  The first one, sworn on 30 April 1997, besides containing some further description of the fourth hole, deposed to the fact that when he arrived at the scene the appellant “was seated level with the first mound or level with a point between the first and second mound... but he was on flat ground and was approximately one metre from the left‑hand edge of the fairway”.  On a copy of a photograph on which Ms McKinney had marked the position of the appellant, Mr Watkins marked an almost identical position.  In his second affidavit sworn on 6 August 1997 he gave some further description of the fourth hole, confirming that it was very similar to what he recalled of the hole (including tree growth) when he was employed there, and confirming that the young trees on the left‑hand side of the fairway provided some obstruction to the view of the mounds from the far left of the tee block.

A number of cases have specified the criteria which must be fulfilled before an appellate court will direct a new trial based on the discovery of fresh evidence.  This Court in Orchard v Orchard (1972) 3 SASR 89 and in Ventura v Sustek (1976) 14 SASR 395 adopted three rules laid down by Denning LJ as he then was in Ladd v Marshall [1954] 1 WLR 1489 at 1491:

“To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontravertible.”

No question in this case arose concerning the apparent credibility of Mr Watkins’ evidence.  There were questions about the appellant’s diligence in obtaining it.

The second condition referred to above has perhaps been described a little more stringently by the High Court in Orr v Holmes (1948) 76 CLR 632 and in Greater Wollongong Corporation v Cowan (1955) 93 CLR 435. In the latter case Dixon CJ said at p444, in a passage subsequently approved as a statement of general principle in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140:

“If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice.  The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well‑known conditions are fulfilled.  It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.  Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.”

The appellant, in this case, however, argued that the failure of the appellant and his advisers to ascertain the existence and evidence of Mr Watkins was brought about by a failure on the part of the respondent to make proper discovery.  A number of further affidavits were tendered before us
relating to that question.  The appellant argued that that failure constituted misconduct of a type which enabled him to rely on a lower threshold held to be applicable to such cases by the High Court in Commonwealth Bank of Australia v Quade (supra). In a joint judgment the members of the High Court said at pp142-143:

“It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict.  The most that can be said is that the answer to that question in such a case must depend upon the appellate court’s assessment of what will best serve the interests of justice, ‘either particularly in relation to the parties or generally in relation to the administration of justice’ (cf., e.g., McDonald v McDonald (1965), 113 C.L.R. , at pp.533, 542).  In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possibly competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party (cf. Southern Cross Exploration N.L. v. Fire & All Risks Insurance Co. Ltd. (1985), 2 N.S.W.L.R. 340, at p.357), any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non‑disclosed material had been made available. While it is not necessary that the appellate court be persuaded in such a case that it is ‘almost certain’ or ‘reasonably clear’ that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so.”

In the circumstances, it is not necessary for me to resolve the question as to whether the respondent was in breach of his obligations to make discovery.  I am content to resolve this ground of appeal by assuming that there was such a breach and that the appellant need only meet the lower threshold that there is a “real possibility” that an opposite result would have been produced, had the evidence been led.

In the respondent’s evidence, the description of the position of the appellant most favourable to the appellant was that he was “a metre or so” from the edge of the fairway in the vicinity of the mounds.  That is almost identical with the description given by Mr Watkins in his affidavit.  It is not insignificant that Mr Watkins’ description by reference to the point on the photograph coincides almost precisely with that of Ms McKinney, also to the left of the fairway, but perhaps a little further to the left than one metre.  It is difficult to tell.  What is important about Mr Watkins’ affidavits is that he does not support the appellant by describing the appellant’s position as being anywhere on the fairway proper.  The position of the appellant described by Mr Watkins was conceded by the appellant’s counsel to be not visible from the point on the tee where the respondent teed off on the fourth tee, owing to the presence of the young trees.  If one applies the lower threshold of Quade’s Case the question for us is whether there is a real possibility that an opposite result would be produced if that evidence had been led at trial.  Given the learned trial judge’s finding as to the position of the appellant when he was struck and to which I have already referred, I consider that there is no possibility of that finding being varied.  The fresh evidence of Mr Watkins would merely confirm the finding of the trial judge that the appellant was not visible to the respondent at the time the respondent teed off.  I would therefore not be prepared to order a retrial based on the discovery of Mr Watkins’ evidence.

The appellant argued, however, that even though he may not have been visible to the respondent at the time when he teed off, he was nevertheless negligent in not ensuring that the appellant was visible or otherwise satisfying himself that the appellant was aware of his intention to play through.

For the purpose of this argument I am prepared to accept, as would appear to be supported by the evidence, that the appellant would have been visible from a position at the right‑hand side of the fourth tee.  The argument of Mrs Shaw QC for the appellant was that the respondent knew that there were two players ahead of him; that he had seen the lone buggy on the fairway not close to Mr Fulton; that from the position at which he teed off he could not see to the left of the fairway; and that he knew that he was prone to slice the ball and that he was capable of hitting the ball past the mounds.  In particular, Mrs Shaw relied on the following question and answer as indicating complete lack of knowledge of and disregard for where the appellant might have been at the time:

“Q.... And you couldn’t see him anywhere else on the course, could you.

A.That doesn’t mean he was on the left‑hand side of the fairway.” (AB p166)

In those circumstances, it was argued that it could not be assumed that Mr Fulton was waving him through on behalf of anyone but himself, and that it behoved the respondent to satisfy himself that the appellant was not within range, or was aware of the fact that he intended to play through, or was aware of Fulton’s signal to him (the respondent) inviting him to play through.

In short, it was contended that in those circumstances the respondent should have moved to his right to look down the fairway.  Had he done so, he would have seen the appellant.

In my opinion, the heavy reliance upon the answer I have quoted is misplaced.  It must be remembered that it was given in the context of the appellant on the one hand maintaining that he was on the fairway proper when hit, albeit moving towards Mr Fulton, and the respondent, on the other hand, maintaining that he was not.  The answer is consistent with the respondent disagreeing that the appellant was on the left‑hand side of the fairway (where the appellant had maintained that he was).  The answer is also consistent with the respondent defending his inability to see the appellant, wherever he was, when the appellant had maintained, by his evidence, that he would have been visible.

The question remains, however, whether the respondent should have refrained from hitting the ball in the circumstances as they then were.  In the absence of being called through by Mr Fulton, there is no doubt that the respondent had a duty to ensure that the course ahead of him and within his striking range was clear of people who might be injured by his golf ball.  Here, however, the finding of the trial judge, which cannot be disturbed on appeal, is that Mr Fulton in fact waved the respondent through.  Mrs Shaw argued that notwithstanding the call, the respondent had a duty to ensure that the appellant had heeded Mr Fulton’s call or that the respondent had reasonable grounds for believing that it had been heeded by Mr Fulton’s partner.

The respondent in his evidence (AB 139) said that he understood that he was being called through on behalf of the group ahead of him.  The appellant in his evidence (AB 68-69) agreed that the following player, when called through, is being called through on behalf of the group.  Thus, as both parties conceded in their evidence, the respondent was entitled to infer, as the learned trial judge found, that the inviting player was doing so on behalf of his partner, and to infer that his partner was aware of the invitation.  He could therefore assume that Fulton and his partner would maintain an adequate lookout and be in a position to protect themselves should his ball approach one of them.  As was pointed out in argument, to hold otherwise would be to require the respondent, notwithstanding the accepted courtesy, to satisfy himself by one means or another that every person within his hitting range, whether visible or not, was aware of his intention to tee off.  That would render, in many circumstances, the operation of the convention on playing through quite impracticable.

In my opinion, having been waved through by Mr Fulton, the respondent was not under an obligation to move to his right on the tee to see if he could see where the appellant was.  It might have been different if there were something within his field of vision, or something within his field of attention arising out of other surrounding circumstances, which might reasonably have raised a suspicion in his mind that another player was unaware of the signal or of his intention to hit off.  However, such was not the case.  It is true that if he had walked to the right‑hand side of the tee block he probably would have seen the appellant.  What he saw of the appellant may or may not have alerted him to the appellant’s ignorance of his intention.  However, if it were to be held that in the circumstances he was obliged to take that precaution, it would be difficult to avoid the conclusion that, if he did not then see the appellant, he should have gone much further to ensure that he and anyone else within his possible hitting range was accounted for.  Even on a straight hole this might be impracticable in the presence of trees and foliage lining the fairway.  What we must do is examine the respondent’s conduct in the light of all the surrounding circumstances.  Taking those into account and in particular the invitation to play through and the parties’ understanding of the effect of that invitation, the respondent was entitled to proceed.

It does not matter if, on the appellant’s evidence, the appellant was not aware of Mr Fulton waving the respondent through or that he did not hear Fulton say that he would do so.  That might affect questions of contributory negligence on the part of the appellant, and it might affect the liability of Mr Fulton to the appellant if he were sued by the appellant.  However, that cannot affect the existence of a duty of care on the part of the defendant and whether, in the circumstances, that duty has been breached.

We were referred to a number of cases involving golfing accidents.  I find such cases unhelpful, as they each depend on their own particular circumstances, and are merely examples of the application of the general principles of tortious liability described by the High Court in Rootes v Shelton (1967) 116 CLR 383 especially per Kitto J at 387-388. In all the circumstances of this case I do not consider that the respondent was in breach of his duty of care to the appellant.

The appellant also attacked the use made by the learned trial judge of the appellant’s prior inconsistent statement to the loss adjuster.  In the first place it was said that the reference in that statement to Mr Fulton telling the appellant that he had called the respondent through could not be used to find that it was reasonable for the respondent to conclude that Mr Fulton had told the appellant of the invitation to play through.  The learned trial judge found that such a conversation occurred, but such a finding was not necessary for the decision as to whether the respondent was in breach of his duty of care.  On a proper reading of the trial judge’s reasons, it does not appear that he has drawn from that finding any inference that the respondent was aware of the communication.  The statement nevertheless tended to corroborate the evidence of the respondent and Ms McKinney, which was disputed by the appellant at the trial, that Mr Fulton had in fact invited the respondent to play through.  The statement was properly used for that purpose and in resolving the issue of credit on conflicting evidence between the appellant and the respondent.

It was also argued that the learned trial judge had misused the prior inconsistent statement by asserting that the appellant had told an independent person on three separate occasions that Mr Fulton had told him that he had called the respondent through.  In the first place it was suggested that there appeared to be some form of transposition of the order of the information contained in the handwritten notes of Mr Christophersen and that contained in the first draft of the statement.  It was said that that tended to support the appellant’s assertion that he was told of the calling through after he had been hit by the ball.  I do not see that any such inference can be drawn from Mr Christophersen’s notes.  Furthermore, he was not cross‑examined on the topic to suggest that the appellant in fact told him what he later asserted in evidence.

In the second place the appellant claimed in evidence that because of his failing sight he had difficulty in reading the statement when it was sent to him and had his wife read it to him.  In the course of that he missed the reference to calling through.  The actual finding of the learned trial judge as to the circumstances of making the statement has already been set out.  His Honour’s observation was that on three occasions, much closer to the incident than the time of trial, the appellant had failed to alter the statement which at trial he said was wrong.  Whilst it is technically correct that he did not have an opportunity to assent to or to alter Mr Christophersen’s notes, he did have the opportunity, whether the draft statement was read by him or to him, to make the correction if it was wrong, and indeed he made alterations to the draft including one very close to the point at which the statement referred to Fulton having called through the other players, and in relation to the same subject matter.  He had apparently checked the statement when it was re‑engrossed and had signed it as a correct statement.  I can see nothing improper in the use of the statement on that account.

Thirdly, it was argued that the statement could not be relied on to prove that in fact a call through was relayed to the appellant, particularly as that fact was disputed by the appellant in evidence and apparently by Mr Fulton in his conversation with the solicitor.  I have already noted that whether or not the conversation was relayed to the appellant is immaterial to the question of the respondent’s liability.  In my opinion nothing has been put which suggests that it was improper for the learned trial judge to use the prior inconsistent statement for the purposes for which it was used, namely to corroborate the evidence of the respondent and Ms McKinney that the invitation was given by Mr Fulton.

In my opinion none of the grounds of appeal which were argued have been made out, and I would dismiss the appellant’s appeal.

Doyle CJ

In my opinion the appeal should be dismissed.  I agree with the reasons of Bleby J for dismissing the appeal, and there is nothing that I wish to add to those reasons.

Matheson J

I would dismiss the appeal for the reasons given by Bleby J.