Lets Go Adventures Pty Ltd v Barrett

1. [1]

   BASTEN and GLEESON JJA: The orders proposed by Adamson J should be made, for the reasons given by Adamson J, which deal with the case presented by the appellant in this Court. There were, however, additional problems with the manner in which the case was pleaded, run and determined below, which should not be left without comment.

2. [2]

   The plaintiff pleaded his claims primarily by reference to ss 60 and 61 of the Australian Consumer Law, wrongly identified as those sections in the Competition and Consumer Act 2010 (Cth). That pleading required that the plaintiff be a “consumer” as defined in s 3 of the Australian Consumer Law, and not, as pleaded, by reference to the definition in s 51ACA of the Competition and Consumer Act, dealing with industry codes. As limited attention was given to whether or not the plaintiff was a “consumer” acquiring services, pursuant to s 3(3) of the Australian Consumer Law, it would have been appropriate to refer to the presumption in s 3(10).

3. [3]

   The primary basis of claim turned on s 60 of the Australian Consumer Law which provides as follows:

4. [4]

   These provisions require careful attention to the “services” which were provided. The statement of claim identified them as “scuba diving” and stated that the services included “the provision of adequate and safe equipment and supervision during the provision of the services.” The failure to identify the services with precision caused difficulties in identifying what were relevant breaches of the s 60 guarantee and in demonstrating causation.

5. [5]

   The defendant relied upon ss 5G and 5H of the Civil Liability Act 2002 (NSW) (obvious risk), s 5I (inherent risk), s 5L (dangerous recreational activity), s 5M (risk warning) and s 5N (waiver). In dealing with the relationship between the Australian Consumer Law and the Civil Liability Act, the Court was invited (an invitation which was accepted) to apply the principles identified by Meagher JA in Motorcycling Events Group Australia Pty Ltd v Kelly. [1] That was not entirely helpful. That case turned in part on the operation of s 74(2A) of the Trade Practices Act 1974 (Cth), as then in force, which was not expressed in the terms of a guarantee but in the terms of an implied warranty incorporated into the contract between the supplier and the consumer. That section has been replaced by s 275 of the Australian Consumer Law. Further, the application of State law also depended on the operation of s 68B of the Trade Practices Act, which has been replaced by s 139A of the Competition and Consumer Act. Ultimately, this case did not turn on any contractual exclusion of liability. Because s 74(2A) dealt with breaches of an implied warranty, rather than failure to comply with a guarantee, to the extent that it saved the operation of the Civil Liability Act, it was necessary to have regard to the specific terms of the relevant provisions of the Civil Liability Act with respect to a course of action based on a statutory guarantee, rather than a contractual warranty.

6. [6]

   The plaintiff’s pleading assumed, no doubt correctly, that the standard set by the guarantee of “due care and skill” could properly be equated with the common law duty to take reasonable care, if the scope of the services was adequately identified. (Negligence was relied upon as an alternative cause of action.) However, a different analysis was required with respect to the guarantee of fitness for a particular purpose, language which was not addressed at the trial. [2] With respect to damages, attention should also be paid to s 267 of the Australian Consumer Law.

7. [7]

   In addition, it may be appropriate in some cases to proceed under the Fair Trading Act 1987 (NSW), Pt 3 of which picks up and applies as New South Wales law the Australian Consumer Law. [3] Under s 4(6) of the Fair Trading Act, the Civil Liability Act is “paramount legislation” and in the case of inconsistency prevails over that Act, but not the Australian Consumer Law (NSW). Accordingly, the relationship of the Australian Consumer Law (NSW) with the Civil Liability Act depends on the effect of s 275 of the Australian Consumer Law, operating as State law.

8. [8]

   There was also some confusion in the Court below as to the operation of the so-called “good samaritan” provisions in Pt 8 of the Civil Liability Act. Section 57 provides immunity from civil liability for one who “comes to the assistance of a person who is apparently injured or at risk of being injured.” [4] The reference to “good samaritan” appeared in a somewhat inarticulate paragraph in the statement of claim alleging a particular of breach of duty in so far as the defendant advised Mr Moore to dive down to alert the plaintiff of his, Mr Moore’s, difficulties, thus placing him at risk of injury “for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid”. The trial judge noted submissions that the plaintiff “may have been a good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive” but that “the plaintiff ceased to be a good Samaritan thereafter”. These submissions should have been dismissed as incoherent. Nobody had sued the plaintiff; it is a defendant who obtains immunity from liability for acting as a “good samaritan”. So far as the plaintiff was concerned, the provisions in Pt 8 of the Civil Liability Act were simply irrelevant.

9. [9]

   ADAMSON J: I have had the benefit of reading the joint judgment of Basten and Gleeson JJA in draft. As the matters raised by their Honours were not the subject of argument in this Court and did not require determination for the purposes of the appeal I would prefer not to express a view about them.

10. [10]

    By amended notice of appeal filed 6 July 2017, Lets Go Adventures Pty Ltd (the appellant, or the defendant), appealed against the orders for judgments in favour of Dean Barrett (the respondent, or the plaintiff) made by Gibson DCJ on 25 November 2016 and 16 December 2016. The grounds challenged the finding of liability and the assessment of damages, in so far as it related to damages for loss of earning capacity.

11. [11]

    The following narrative comprises agreed or incontrovertible facts, except where otherwise indicated.

12. [12]

    The plaintiff was an experienced commercial diver who had worked as a naval diver in the Royal Australian Navy (RAN) in his youth. He had been trained to observe and treat decompression illness. In cross-examination the plaintiff confirmed that he had been a qualified dive master since 2000; a qualified dive instructor since 2006; and a qualified scuba trainer and dive control specialist since 2010. He was also qualified as an emergency first response instructor, which qualified him to administer oxygen in emergencies.

13. [13]

    In 2005 he established a business which was conducted under the name Charlestown Diving, by a company, Frew Investment Holdings Pty Ltd (Frew Investments), of which he was an employee. For the first few years after 2005 the plaintiff continued to work as a commercial diver, including in Papua New Guinea. However, at some time prior to 2012 he began to work full time in the dive shop conducted by Frew Investments at Charlestown, near Newcastle in New South Wales.

14. [14]

    Individuals would engage the plaintiff to take them on dives and instruct them in diving on air and mixed gases, such as nitrox, a mixture of nitrogen and oxygen. The plaintiff would also arrange trips for clients in Australia, including Forster, Brisbane and Bulli, as well as overseas. Some of the dives would be shore dives which did not require a boat and which were arranged exclusively by the plaintiff’s business. As the plaintiff’s business did not own a boat, Frew Investments came to an arrangement with boat operators, such as the defendant, which permitted the plaintiff to take his clients on boat dives. The commercial arrangement between the plaintiff and the defendant was that the plaintiff would pay 20% of the fee he charged his clients to the defendant. In return, the defendant would take the plaintiff and his clients on the boat without charging a fee for the plaintiff to be on the boat.

15. [15]

    On 15 January 2012 the plaintiff arranged to take six clients, including Mark Moore, on a boat dive from the defendant’s boat, the Tomaree, to the SS Oakland, a wreck on the ocean floor, some 26m from the surface.

16. [16]

    The principals of the defendant were Adam Shorter and Emma Challen, who were business, as well as personal, partners. Mr Shorter drove the boat on 15 January 2012. Ms Challen was not on the boat that day. She was responsible for the maintenance and servicing of equipment on the boat. Her evidence was that there were two sources of oxygen on the boat on 15 January 2012: a “C” cylinder, which could be attached to an oxy viva unit, which had two outlets, and a “D” cylinder which could also be attached to breathing apparatus. Both sources could be used by two people at once. The cylinders had been serviced in late 2011 and were not due to be serviced again until 31 July 2012.

17. [17]

    The persons present on the boat for the dive on 15 January 2012 comprised the plaintiff and his six clients (including his then girlfriend, Karen Hetherington); Mr Shorter, a principal of the defendant, and Horatio Noble and Rowan Jeffs, who were both employees of the defendant. Mr Shorter did not dive as he was the skipper of the boat.

18. [18]

    In his evidence in chief the plaintiff gave the following version of what occurred on the boat dive. At times he referred to the transcript, which he had prepared from the audio recording made from the GoPro footage which was tendered. The GoPro footage derived from Mr Moore’s GoPro device which he turned on some time after he reached the bottom of the ocean. The footage went for about 43 minutes and covered the period from near the commencement of the dive until the boat was on its way back to the marina. From the evidence of the plaintiff’s dive computer it would appear that Mr Moore switched on the GoPro about 4 minutes after he commenced his descent from the boat.

19. [19]

    The front of the vessel was attached to the mooring above the wreck. The persons on the boat arranged themselves in pairs in accordance with the “buddy” system used for scuba diving, whereby scuba divers dive in pairs so that one can keep an eye on the other for safety reasons.

20. [20]

    The plaintiff normally preferred to go in last but, as it happened, he jumped in with Mr Moore who was, other than the plaintiff, the last diver to enter the water. They were each other’s “buddy” for the purposes of the buddy system. As far as the plaintiff could recall, he did not have any discussion with Mr Moore before jumping into the water on the port (left) side.

21. [21]

    Mr Moore was diving with twin tanks which were filled with a combination of nitrogen and oxygen (known as nitrox) which comprised 33% oxygen and 67% nitrogen. He also had what was described as a “pony bottle”, which was 50% oxygen and 50% nitrogen and provided an additional source of gas. Mr Moore was also wearing a dive computer on his wrist. Mr Moore was wearing a dry suit or a semi-dry wetsuit. Unlike a wet suit, which absorbs water, a dry suit can alter buoyancy by using the air from the tanks attached to it. Mr Moore also had a GoPro camera which was mounted onto his head, the footage of which has been referred to above.

22. [22]

    The plaintiff was diving with a single tank of air, which comprised 21% oxygen, with the balance being mainly nitrogen. He had a dive computer which was attached to his buoyancy control device (BCD). The computer logged the dive and produced a graph showing depth over time. According to the plaintiff, a dive computer sounded an alarm when the controls set by the computer for time of ascent were exceeded.

23. [23]

    After the plaintiff and Mr Moore got into the water, they “worked [their] way around to the front”. The plaintiff did not notice anything particular about Mr Moore. The water was choppy. When they reached the front of the boat, they gave each other the signal to go down. The plaintiff ducked his head under the water and waited for Mr Moore to begin his descent. He saw Mr Moore descend very fast next to him but he was not alarmed, although such a descent was not normal. The plaintiff followed Mr Moore. When they reached the bottom they found themselves about 10m away from, and in front of, the wreck.

24. [24]

    The plaintiff observed that Mr Moore was lying on his side “playing around” with his camera and his mask. The plaintiff helped him upright and they confirmed to each other that they were both “okay” to continue. Notwithstanding that Mr Moore had given the “okay” signal, he continued to “play” with his mask and camera again. Water entered the mask, which Mr Moore endeavoured to clear, without much success. The plaintiff’s initial impression was that Mr Moore was slightly unbalanced due to the quantity of gear, including the pony bottle which appeared to be making him fall to the right. The plaintiff noticed that Mr Moore’s hood was under the edge of his mask, which was letting water come into the mask. Mr Moore continued to signal to the plaintiff that he wished to continue the dive. After a few minutes, Mr Moore turned his GoPro camera on. The film depicts (and the plaintiff confirmed in his evidence in chief) that the plaintiff took the pony bottle from Mr Moore. The plaintiff said that he believed that this was what was causing Mr Moore to be unbalanced. The plaintiff dropped one of his weights when he was trying to connect Mr Moore’s pony bottle to his own gear. Mr Moore picked it up and returned it to him. Mr Moore continued to film the wreck but eventually, after about 15 minutes, he indicated that he wanted to finish the dive because he was having so many problems with his gear.

25. [25]

    As they were some distance from the anchor line, the plan was to ascend at a slight angle, following the contours of the wreck. They signalled to each other to confirm that they would head to the line, which was at the other end of the wreck. According to the plaintiff, when they reached the back of the wreck, Mr Moore was still having difficulties with his equipment and began a free (uncontrolled) ascent. The plaintiff grabbed Mr Moore to try to control his ascent. They conferred again by using hand signals and decided that they would go towards the line. On the way, Mr Moore started ascending more quickly and directly to the surface. The plaintiff followed him. The plaintiff’s computer sounded alarms to signify that he was ascending too quickly. It appears from the timer on the GoPro that Mr Moore surfaced about 13 minutes after activating the GoPro about 4 minutes into the dive.

26. [26]

    When the plaintiff reached the surface, Mr Moore was lying on the surface and did not respond to the plaintiff calling his name. The plaintiff turned him over so that he was facing the sky and towed him about 20m back to the boat. When they reached the boat, the plaintiff handed the equipment to Mr Shorter. The plaintiff opened Mr Moore’s airways and then he piggybacked Mr Moore up the steps onto the boat. Mr Shorter may have helped him and Mr Moore, who had regained consciousness, may also have been able to help himself by this stage although the plaintiff could not recall.

27. [27]

    Once they were on the boat, Mr Shorter attached Mr Moore to the oxygen supply in the “C” cylinder, using the oxy viva kit, which included a Hudson mask. The plaintiff was asked how long the oxygen supply from the “C” cylinder would last. He made a few guesses (30 minutes, then 10 minutes if two people were using it) and confirmed that there are calculations that can be performed as to how long a “C” cylinder filled with pure oxygen would last.

28. [28]

    The plaintiff’s evidence was that at some point after he returned to the boat he grabbed Mr Moore’s pony bottle which, as referred to above, was 50% air and 50% nitrogen. He said that he did so:

29. [29]

    The plaintiff said that he did not observe any other source of pure oxygen on the vessel. At some stage Mr Moore vomited into a bucket. The plaintiff advised him to keep breathing the pure oxygen from the “C” cylinder. It was about 23 minutes before they left the mooring to return to Port Stephens. According to the plaintiff’s evidence in chief, the oxygen ran out not long after they left the mooring. According to the plaintiff, it took about 1½ hours to return to the marina as they were also picking up Mr Moore’s equipment which was drifting. The plaintiff’s estimate was greatly in excess of estimates given by other witnesses.

30. [30]

    When they arrived at the marina, Mr Moore’s wife was waiting for them and she drove Mr Moore to the medical centre at Nelson Bay. The plaintiff followed them and accompanied them into the medical centre. He told the doctor what had happened on the dive. The doctor treated Mr Moore. There was no suggestion that the plaintiff thought that he required treatment and no suggestion that anyone else, including the doctor who examined Mr Moore, considered that he required treatment.

31. [31]

    The plaintiff said that he did not perceive that he had any symptoms until that evening when he started to get headaches, the like of which he had not experienced previously.

32. [32]

    The plaintiff said that a couple of weeks after the incident he visited Mr Moore, who told him that he had been hit on the head by the vessel before he commenced the dive. The plaintiff confirmed that he had not seen this occur on the day and had not been aware of it until Mr Moore told him about it a fortnight later. According to the plaintiff, Mr Moore told him that he had suffered a “near drowning”.

33. [33]

    The plaintiff was familiar with the oxy viva system and had his own kit in his shop. He knew that two people could use it simultaneously and that one person could be on the continuous supply outlet and the other could be on the demand outlet. He agreed that the “D” cylinder had a greater capacity than the “C” cylinder but said that he did not see the “D” cylinder on the boat on 15 January 2012. When it was put to him that there would be sufficient oxygen for two divers for the trip back to the marina from the dive site, the plaintiff said that he did not know that to be the case.

34. [34]

    The plaintiff accepted that he could have charged his clients any fee he liked for taking them on the boat dive with the defendant. He agreed that, of the people he brought onto the boat on 15 January 2012, he was the most qualified.

35. [35]

    The plaintiff did not recall Mr Moore saying anything to him about not proceeding with the dive or that he was feeling unwell before they descended. He confirmed that they went around to the front of the boat where the anchor line was before giving each other the thumbs down signal to descend.

36. [36]

    The plaintiff agreed that the print out from his dive computer indicated that it took about 2½ minutes for him to descend to the bottom; that he and Mr Moore were on the bottom at a depth of about 26m for approximately 12½ minutes; and that the ascent took about 2½ minutes.

37. [37]

    The plaintiff was asked about what he said to Mr Moore, which is recorded in his transcript of the GoPro recording at 28:13:

38. [38]

    The transcript recorded the plaintiff’s action after making that statement as follows:

39. [39]

    The plaintiff agreed that the transcript recorded (at 32:42) that Mr Shorter said: “We have plenty of air, plenty of O2”. The plaintiff agreed that the boat began its trip back to the marina at 36.21 on the GoPro recording. He agreed that he had a discussion with Mr Shorter, in the course of which Mr Shorter told him about the clinic which was open “24/7”. The transcript recorded the following exchange at about 36:51:

40. [40]

    Notwithstanding this evidence, the plaintiff did not agree that the “C” cylinder did not run out on the boat. When it was put to him that in the incident report he had recorded (as set out below): “Kept on O2 till arrival at hospital. (Nelson Bay)”, he said that it was a “typo” (although he had written it by hand) and that he should have written “nitrox” instead of “O2”. When it was put to the plaintiff that at no time had he asked Mr Shorter for any oxygen for himself, he responded, “It’s implied”. He agreed that he had confirmed to Mr Shorter that he was all right in response to Mr Shorter’s inquiry on the boat. The plaintiff accepted that he did not perceive any symptoms while he was on the vessel that he regarded as associated with decompression illness.

41. [41]

    The plaintiff agreed in cross-examination that the oxygen delivery from the “C” cylinder through the Hudson mask would be at a concentration of between 40-60% oxygen and that using a regulator to breathe through the pony bottle with its concentration of 50% oxygen and 50% nitrogen would be “about the same”.

42. [42]

    Mr Moore was suffering from an unrelated terminal illness at the time of the trial in June 2016. In 2015 he had prepared a statement with the assistance of his own solicitors for purposes unrelated to the present proceedings. The statement was produced on subpoena in October 2015 and access was granted to the parties. On 23 October 2015 the plaintiff uplifted the subpoenaed documents which included Mr Moore’s statement. The plaintiff became aware of the contents of the statement a few months before the trial commenced. Mr Moore could not be cross-examined because of his illness. The statement was marked by the trial judge as a “court exhibit” and admitted into evidence. In his statement, Mr Moore said, of present relevance:

43. [43]

    The log produced by the plaintiff’s dive computer indicated that after about 15 minutes at a depth of 26m, the plaintiff commenced his ascent to the surface. The GoPro camera, which was equipped with sound recording, continued to run on the way back to the marina. The GoPro recording indicated that on one or two occasions, the plaintiff coughed. Mr Shorter asked him at one point whether he was all right, to which the plaintiff responded that he was fine.

44. [44]

    The transcript of the GoPro recording indicated that at 33:29, when the boat was on its way back to the marina, the plaintiff took Mr Moore’s nitrox pony bottle and said to him:

45. [45]

    At 39:17, the plaintiff’s transcript indicated that the plaintiff said to Mr Shorter, referring to the “C” cylinder:

46. [46]

    The plaintiff’s transcript indicated that at 39:45, the plaintiff said to Mr Moore, while he was sucking on the pony bottle:

47. [47]

    Ms Hetherington was the plaintiff’s girlfriend at the time of the dive and his wife by the time the trial commenced. She was one of the six on the boat who were associated with the plaintiff. She gave evidence that it took about half an hour to get from the marina to the dive site on 15 January 2012. She recalled seeing that Mr Moore was tilted to the right side while they were underwater. When she came up after the dive she saw the plaintiff inside the door of the wheelhouse on the boat, sucking on a nitrox bottle. He told her that they had come up without decompressing. She did not see any other sources of oxygen in the wheelhouse. In cross-examination Ms Hetherington said that the man who had remained on the boat (who was accepted to be Mr Shorter) had helped the divers with their gear and with getting back onto the boat after the dive.

48. [48]

    Two days later, the plaintiff filled in an incident report form concerning Mr Moore and submitted it to the Professional Association of Diving Instructors (PADI). He identified the extent of injury as “near drowning”. His narrative of the incident is reproduced in full below because of its significance as a contemporaneous document prepared by the plaintiff about the dive:

49. [49]

    According to the plaintiff’s evidence in chief, although he continued to operate his business after the dive he “had a lot of days off sick” and “couldn’t function”. But for the dive, he was intending to continue to operate his business, which was “going gangbusters” and provided “a great lifestyle”. He said that he did “a couple of dives” after the incident on 15 January 2012. In mid-2012, the plaintiff was certified unfit to dive. He lodged a workers compensation claim, liability for which was accepted by Frew Investments’ insurer. He also obtained compensation from the Department of Veterans’ Affairs (DVA) arising from his work for the RAN. The conditions accepted did not include decompression illness.

50. [50]

    The plaintiff said in chief that his ability to manage his affairs deteriorated after the incident on 15 January 2012 such that he could no longer manage his business. He said that he “closed the doors” on 30 June 2012. He sold the business name and stock for $80,000.

51. [51]

    The plaintiff said that his continuing symptoms as a result of decompression illness included headaches for which he took Panadol and Panadeine. He also gave evidence of problems with his left arm and elbow as well as shoulder pain, which he attributed to having to get Mr Moore out of the water as well as decompression illness. He said he had neck pain which required his attendance at a chiropractor every fortnight, for which the DVA pays. The plaintiff gave evidence that he had had a number of falls, including a serious one at home in October 2013 as a result of which he injured his right shoulder. He attributed his difficulties with balance to the incident on 15 January 2012.

52. [52]

    The plaintiff accepted that in May 2013 he made a claim, which was resolved, against the Commonwealth for injuries sustained while working with the RAN, including to his left shoulder and possibly his left elbow.

53. [53]

    The plaintiff accepted that the only income for Frew Investments was derived from the Charlestown dive business while it was operational. He confirmed that it was his intention to keep the dive business operational and said that it was “more than likely” that if the incident had not occurred he would have continued to run the dive business in the same way. He accepted that the only income he received from Frew Investments was received as an employee and not as a director. The plaintiff accepted that the gross income for the company for the year ending 30 June 2011 was $130,000 less than for the previous financial year, as shown in the tax returns.

54. [54]

    The plaintiff admitted in cross-examination that he had performed 15 to 20 dives between 15 January 2012 and mid-2012, some of which had been overseas. His passenger movement records showed that he had travelled by air to the Maldives and Indonesia, and described his occupation as “commercial diver” on those forms.

55. [55]

    The plaintiff agreed that, in order to maintain his qualification as an instructor, he had to be examined every year and certified fit for that role. In such an examination, tests would be conducted for hearing, eyesight and balance. He was cross-examined about attending two doctors, Drs Plumb and Cooke, at the Appletree Medical Centre on 6 March 2012 for his annual certificate. It was put to the plaintiff that no abnormality was detected on the examination of blood pressure, urine test, blood test, hearing and balance. It was also put that he made no complaint about headaches, balance, hearing, vision, tinnitus, neck problems or elbow problems. Indeed it was put that he made no complaint whatsoever in these examinations and did not inform the doctors of what had occurred on 15 January 2012. The plaintiff said that he could not recall the examination. The defendant relied on the clinical notes to establish these propositions. When it was put to the plaintiff that, if he had been experiencing severe headaches at the time of the examination, he would have told the doctors, the plaintiff said:

56. [56]

    The first time the plaintiff reported symptoms of decompression which he attributed to the dive in January 2012 was when he saw his general practitioner, Dr Cooke, on 4 May 2012. Dr Cooke recorded in his clinical notes that the plaintiff reported that he had a “slight headache that night”. The plaintiff told Dr Cooke that he had dived:

57. [57]

    In the course of the examination, Dr Cooke performed a Sharpened Romberg test, which is designed to test balance. The patient is required to try to stand unsupported with one foot in a heel to toe position in front of the other for 30 seconds. The test was performed three times. The plaintiff could not maintain his balance for more than 15 seconds. As a result of the consultation and examination, Dr Cooke made a provisional diagnosis of decompression illness.

58. [58]

    On 3 September 2015, at the request of his solicitors, the plaintiff saw Dr Fitzsimons, a neurologist, who recorded the following history in her report dated 3 September 2015:

The defendant’s witnesses

1. [59]

   The defendant called Ms Challen, Mr Shorter, Horatio Noble and Rowan Jeffs as lay witnesses in its case. It is not necessary to address the evidence of either Mr Noble or Mr Jeffs, neither of whom was cross-examined. However, because of the challenge made to the trial judge’s rejection of the evidence of Ms Challen and Mr Shorter, it is necessary to set out their evidence in some detail and to extract some passages from the cross-examination of them by Mr Hart who appeared for the plaintiff at trial and in this Court.

2. [60]

   Ms Challen gave evidence about the defendant’s business. She became a dive instructor in 2005 and a staff instructor in 2007, which meant that she was qualified to assist in teaching instructors. She became a master instructor in 2008. In 2006 she became qualified to teach a nitrox course. She was also qualified as a technical deep diving instructor. All her qualifications were issued by PADI except for her qualification as an instructor trainer, which was issued by Scuba Schools International (SSI). In addition to the Tomaree the defendant’s business operated another boat, the Dive Away.

3. [61]

   Ms Challen’s evidence was that there was an oxy viva set with a “C” cylinder attached to it as well as a “D” cylinder and a regulator to go with it on the Tomaree in January 2012. She said that the “D” cylinder was kept in the wheelhouse (also known as the cabin or cab) on top of a bench on a red backpack. Ms Challen explained that each of the cylinders could provide oxygen to two people at once. Ms Challen was not on the boat that day as she was working in the shop.

4. [62]

   As far as she could recall the plaintiff had been on the Tomaree about 50 times. Ms Challen confirmed that Mr Shorter’s role that day was as coxswain and skipper of the boat. The two other employees of the defendant on the boat, Mr Jeffs and Mr Noble, were both dive masters. Ms Challen estimated that it would take, on average, 20 minutes to get from the marina to the dive site and, at most, 30 minutes if the boat was going into the swell and wind.

5. [63]

   Ms Challen received a phone call from Mr Shorter while the boat was still out at sea, as a result of which she telephoned Mrs Moore. When the plaintiff came back to shore she spoke to him briefly in the shop and asked him whether he was all right, to which he responded, “Yeah, yeah, I’m fine.” She said that she first became aware that the plaintiff alleged that he had suffered injuries on 15 January 2012 when the defendant was served with the statement of claim.

6. [64]

   The way in which the cross-examination of Ms Challen and Mr Shorter was conducted at trial was the subject of criticism by Mr Cavanagh in this Court. In order to appreciate the tenor of Ms Challen’s and Mr Shorter’s cross-examination it is necessary to extract portions of it.

7. [65]

   Ms Challen was asked about whether Mr Moore was suspected of suffering from decompression illness in the following passages.

8. [66]

   Ms Challen was cross-examined about whether she submitted a PADI incident report form in respect of the incident on 15 January 2012. She was asked to look at the PADI General Standards and Procedures – Administrative Procedures:

9. [67]

   Ms Challen was asked about the diving log, which did not record “in”, “out” or “BT” (bottom time) times for either Mr Moore or the plaintiff but did contain an entry in the column entitled “Comments” beside the plaintiff’s name which read “19 minutes (post dive)”.

10. [68]

    The cross-examination included the following exchanges:

11. [69]

    Ms Challen was also asked about the photographs of the equipment in the following exchanges:

12. [70]

    In re-examination, Ms Challen confirmed that the “in”, “out” and bottom times are to be filled in on the boat. Mr Reynolds, who appeared at trial for the defendant, endeavoured to ask Ms Challen why she did not fill in an incident report form and submit it to PADI. As appears from the following passages in the transcript, he was prevented from doing so.

13. [71]

    Mr Shorter gave evidence in chief to the effect that he checked the oxygen on the vessel before it departed and confirmed that it included the “C” cylinder, the oxy viva unit and the “D” cylinder with a regulator, and that these items where located in their usual locations. He checked that both cylinders were full. He said that it took about 20 minutes to go from the marina to the dive site on 15 January 2012.

14. [72]

    Mr Shorter said that he helped Mr Moore put on his dive gear. While this was occurring Mr Moore told Mr Shorter that he was not comfortable about doing the dive, to which Mr Shorter responded that he did not have to dive if he did not want to. Once the plaintiff and Mr Moore got into the water, Mr Shorter was the only person left on the boat. Mr Shorter said that he then played some music on his phone in the wheelhouse and scanned the horizon. Later he saw the plaintiff and Mr Moore on the surface. When they reached the boat Mr Shorter held Mr Moore by the twin tank valves to keep him up out of the water. He saw the plaintiff help Mr Moore up the ladder. Mr Shorter said that he sat Mr Moore down and connected him to the oxy viva system which was attached to the “C” cylinder. At that stage there were only the three of them on the boat as the other divers had not yet returned from the dive.

15. [73]

    After Mr Moore was connected to oxygen, Mr Shorter drove the vessel to collect Mr Moore’s gear which had been removed before Mr Moore was helped onto the boat after the dive and was floating behind the vessel. Mr Shorter rang Ms Challen on her mobile phone to tell her what had happened. Mr Shorter noticed that Mr Moore had improved since coming onto the boat. He observed that the plaintiff looked fine and did not show any signs that anything was wrong. Mr Shorter estimated that it took about 15 minutes to get back to the marina as he had the vessel at full speed. Throughout this period, Mr Moore remained connected to the oxy viva unit which was attached to the “C” cylinder. Mr Shorter confirmed that he did not have anything to do with completing the dive log for the dive. He was asked about record-keeping in the following exchange:

16. [74]

    In the early stages of his cross-examination Mr Hart asked Mr Shorter when he was first asked to recall the circumstances of the incident. He had difficulty understanding the question which may be explained by the way it was phrased. Mr Hart then asked him whether he was tired, to which he answered “no”. Mr Hart then asked him whether he did shift work, to which he answered “yes”. He was asked whether he had had conversations about the case with Ms Challen. He denied that he had had “lots” of conversations about the case. This line of questioning included the following exchange:

17. [75]

    Subsequently, he was asked about Mr Moore’s statement in the following exchanges:

18. [76]

    It was subsequently put to Mr Shorter that the plaintiff’s coughing after the dive was an indication of breathing distress. Mr Shorter agreed that it “might be”. He denied that coughing necessarily indicates potential decompression illness.

19. [77]

    Mr Shorter was also cross-examined about the “D” cylinder by reference to the GoPro footage in the following exchange:

20. [78]

    Mr Hart did not take the opportunity to press Mr Shorter to indicate where the “D” cylinder could be seen on the GoPro footage. I reject his submission in this Court that one could infer from the GoPro footage that there was no “D” cylinder on the boat, when Mr Shorter identified it in the passage set out above.

The expert evidence

1. [79]

   The plaintiff relied on the report of Chris Coxon, an expert in diving safety and standards. Mr Coxon’s report revealed that he was asked to opine based on the following assumptions:

2. [80]

   The plaintiff could not recall whether he had given that version to Mr Coxon. Mr Coxon confirmed that his opinion that the oxygen supply on the boat was inadequate was based on two assumptions: first, that there was only one “C” cylinder on the boat; and, second, that it ran out before the boat returned to the marina. Mr Coxon agreed that the “D” cylinder would have between three and four times the capacity of the “C” cylinder. He accepted that if both “C” and “D” cylinders were full and available on the vessel there would be an adequate volume of oxygen on the boat in accordance with the standards.

3. [81]

   Associate Professor Michael Bennett is an expert in diving and hyperbaric medicine. There was no challenge to his expertise. He was not cross-examined. He was given a history that the plaintiff went diving on 15 January 2012 and came up quickly from 16m, after having been at a depth of 26m for 17 minutes. The history included that the plaintiff had suffered headaches that evening and that they continued thereafter. He noted that the plaintiff did not seek recompression treatment and had dived 15-20 times “over the next few weeks” after the dive on 15 January 2012 which “may have exacerbated his injury”. Associate Professor Bennett opined:

4. [82]

   Associate Professor Bennett did not give any opinion about what difference, if any, oxygen therapy would have made to the outcome.

5. [83]

   Associate Professor Simon Mitchell was an accepted expert in diving and hyperbaric medicine. He opined that oxygen therapy was not definitively indicated for the plaintiff on 15 January 2012 and said in his report:

6. [84]

   Although he accepted that the decompression sickness was a possible consequence of the dive, he considered the risk to be “small”. Associate Professor Mitchell analysed the data relating to the symptom latency (time between incident and reporting of symptoms) and opined:

7. [85]

   On the question of causation, Associate Professor Mitchell addressed the following question concerning the difference oxygen therapy would have made to the plaintiff:

8. [86]

   Associate Professor Mitchell also considered the relative benefit of the nitrox which the plaintiff was inhaling compared with the oxygen which was administered to Mr Moore as follows:

9. [87]

   Associate Professor Mitchell was also asked to opine about Mr Moore’s condition. Mr Hart put to Associate Professor Mitchell in cross-examination that the symptoms Mr Moore exhibited on the dive, as depicted in the GoPro film, were consistent with concussion. While he could not completely exclude concussion, he said “On the balance of probabilities this was not concussion”.

The plaintiff’s case at trial

1. [88]

   On appeal in this Court Mr Hart confirmed the appellant’s analysis that, in substance, the plaintiff formulated his case against the defendant at trial in the following three ways:

   1. (1)

      As a result of Mr Shorter directing Mr Moore to inform the plaintiff that he wanted to abort the dive, when he knew that Mr Moore had hit his head, the defendant was responsible for all the consequences of the dive, including the decompression illness caused by the fast ascent at its conclusion (the Moore Head Injury Case).

   2. (2)

      The plaintiff suffered physical injury when he helped Mr Moore get back into the boat on the ladder after the dive, which could have been averted if alternative means had been used (the Lifting Case).

   3. (3)

      Because the defendant did not have an oxygen supply on the boat which was available to the plaintiff when he came back from the dive, the decompression illness which the plaintiff suffered as a result of the dive was not cured, as it would have been had the oxygen been available (the Oxygen Supply Case).

2. [89]

   The plaintiff pleaded these three cases on two bases: the tort of negligence; and breach of the guarantee implied by s 60 of the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), to exercise care and skill in the provision of services. The case in (1) above was included by way of amendment to the statement of claim that was proposed on 15 June 2016, the fourth day of the hearing. The amendment added the following particular of negligence to the allegation at [12] of the pleading:

The decision of the trial judge on liability

1. [90]

   The trial judge found for the plaintiff under the ACL for breach of the statutory guarantee that services be rendered with due care and skill. The effect of her Honour’s finding that the plaintiff was a “consumer” was to base the defendant’s liability on the ACL rather than the tort of negligence. It followed from this finding that the waiver signed by the plaintiff was rendered inoperative (s 64 of the ACL) and ss 5M (no duty of care for recreational activity where risk warning) and 5N (waiver of contractual duty of care for recreational activities) of the Civil Liability Act did not apply. Although there may be differences in the expression of the standard of proof or the requirement of causation between the Civil Liability Act and an action against the supplier of services pursuant to s 267 of the ACL, it was not suggested that the differences were material in the present case. No issue arose as to whether the provisions of the Civil Liability Act or the ACL were more favourable to the plaintiff: cf. Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; (2015) 324 ALR 355 at [72] (Macfarlan JA, Simpson JA agreeing).

2. [91]

   It was common ground that s 5L of the Civil Liability Act (no liability for harm suffered from obvious risks of dangerous recreational activities) could, as a matter of law, apply in the present case to exclude the defendant’s liability for breach of the statutory guarantee created by s 60 of the ACL: s 275 of the ACL.

3. [92]

   The trial judge’s essential findings were as follows:

4. [93]

   Although it is not particularly clear, one can infer from the trial judge’s findings and the judgment entered that her Honour accepted all three cases put on behalf of the plaintiff: the Oxygen Supply Case, the Moore Head Injury Case and also the Lifting Case, at least in terms of a finding of negligence or failure to render “services” with due care and skill. The breach was not clearly found and the “services” were not identified. Moreover, any finding of causation must be implied because it does not appear expressly. Whatever inadequacies in the reasons, neither party asked this Court to order a re-trial.

5. [94]

   The trial judge was satisfied that the plaintiff was a “good samaritan” within the meaning of Part 8 of the Civil Liability Act, which protects good samaritans from liability in negligence. Her Honour relevantly found as follows:

6. [95]

   Her Honour found that there was no contributory negligence as follows:

7. [96]

   The trial judge rejected the allegation that the plaintiff had failed to mitigate his loss in the following terms:

8. [97]

   The trial judge also rejected the defendant’s argument that any liability was excluded by s 5L of the Civil Liability Act in the following terms:

Matters which were not the subject of challenge

1. [98]

   Before turning to the appellant’s challenges to the trial judge’s findings I propose to record the matters which were not challenged. The matters which were not challenged were:

   1. (1)

      The finding that the plaintiff was a “consumer” within the meaning of the ACL;

   2. (2)

      The finding that the defendant could not rely on the defences under ss 5M or 5N of the Civil Liability Act;

   3. (3)

      The finding that the waiver signed by the plaintiff did not have the effect of excluding liability in tort or under the ACL;

   4. (4)

      The finding that no deduction to the plaintiff’s damages pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) ought be made;

   5. (5)

      The finding that no reduction in the plaintiff’s damages ought be made on the basis of contributory negligence; and

   6. (6)

      The assessment of damages other than damages for loss of earning capacity.

2. [99]

   The respondent accepted that, as a matter of law, s 5L of the Civil Liability Act could apply to the present case but contended that there was no error in the trial judge’s finding that it was not made out.

3. [100]

   In these circumstances it is not necessary to consider whether there is a material difference between the statutory civil cause of action conferred by s 60 of the Competition and Consumer Act 2010 when read with s 267, and the warranty implied by s 74 of the Trade Practices Act 1974 (Cth) for the purposes of determining whether provisions of the Civil Liability Act are picked up by s 275 of the ACL or s 80 of the Judiciary Act 1903 (Cth): cf. Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55. Nor were these matters the subject of argument.

The appellant’s challenge to the finding of liability by reference to the various formulations of the plaintiff’s case

1. [101]

   The appellant challenged several findings in its amended notice of appeal. However, for the purposes of the appeal, Mr Cavanagh SC, who appeared for the appellant with Ms Curtin, challenged the following findings since they formed the basis of her Honour’s finding of liability:

   1. (1)

      That the defendant ought to have known that the plaintiff needed oxygen;

   2. (2)

      That the plaintiff was “coughing and exhausted” on the boat; and

   3. (3)

      That there was insufficient oxygen on board.

2. [102]

   The appellant submitted that the finding that the defendant ought to have known that the plaintiff needed oxygen was incorrect having regard to the following evidence. First, the plaintiff accepted in cross-examination that Mr Shorter asked him on more than one occasion whether he was all right and on each occasion he confirmed that he was. Secondly, he accepted that apart from telling Mr Moore that he felt that he might need to be monitored, he did not tell anyone on the boat that he was unwell. The plaintiff admitted that he did not perceive any symptoms while he was on the boat although he did recall that he coughed, as is recorded on the GoPro. As far as the evidence revealed, the plaintiff was by far the most experienced diver on the boat, had experienced decompression illness previously and was familiar with its causes, effects and treatment, both in terms of first-aid (oxygen therapy) and the cure (recompression in a hyperbaric chamber).

3. [103]

   Mr Cavanagh submitted that given that the plaintiff did not complain to anyone on the boat, confirmed that he was all right to Mr Shorter, did not perceive that he had any symptoms that would require oxygen therapy and did not request any oxygen therapy, the finding that Mr Shorter ought to have known that the plaintiff needed oxygen and was required to supply it to him was incorrect. Moreover, not only did the plaintiff not complain on the boat, but when he accompanied Mr Moore to the clinic and thereafter to the hospital, he did not ask for treatment or recompression for himself.

4. [104]

   Mr Hart relied on the plaintiff’s evidence that his request for oxygen was “implied” by the circumstance that he was coughing. Further, he relied on the fact that Mr Shorter saw the plaintiff sucking on Mr Moore’s nitrox bottle. Mr Hart submitted that the only available inference was that Mr Shorter was aware that the plaintiff had a condition which required some form of oxygen. He contended that the defendant ought not to have accepted the plaintiff’s assurance that he was all right but, rather, Mr Shorter should have demanded the plaintiff’s dive computer, ascertained that the ascent had been too fast and required him to have pure oxygen therapy.

5. [105]

   I am satisfied that the trial judge’s finding that the defendant ought to have been aware that the plaintiff needed oxygen was erroneous, having regard to the evidence referred to above. The plaintiff was an experienced diver; he was an adult; he was running a dive business; and as far as the evidence revealed, no one on the boat had greater expertise in diving and decompression illness than he did. To require the defendant to countermand the plaintiff’s own assessment in circumstances where (as the plaintiff admitted in the incident report form) the dive did not require a decompression stop and no symptoms were apparent would, in my view, be to elevate the standard of care required to a higher level than reasonable care. If anyone had a responsibility to review the plaintiff’s dive computer, it was the plaintiff himself. He was aware that he had come up quickly and took precautions himself by breathing nitrox when on board.

6. [106]

   In [246] of the reasons of the trial judge (set out above), her Honour found that the plaintiff was coughing and exhausted by the exertion of getting Mr Moore on board. There was no evidence that the plaintiff was exhausted. He had played a part, with others, in getting Mr Moore back onto the boat. Once Mr Moore was on board, the evidence was that Mr Shorter connected him to the oxygen and monitored him while the plaintiff wandered around the boat and returned to check on him from time to time. He was heard to cough on at least two occasions which were recorded on the GoPro. He did not associate his coughing with decompression illness, as is evident from the admission referred to above. Nor could the coughing be associated with exhaustion, as there was no evidence that he was exhausted. This finding was erroneous.

7. [107]

   It was common ground that the regulations required two sources of oxygen. It was the defendant’s case at trial that the Tomaree had on board both a “C” cylinder and a “D” cylinder. The plaintiff’s case was that the “D” cylinder was not on the boat. The plaintiff’s evidence was that he did not see the “D” cylinder. The defendant’s evidence came from a number of sources. It relied on the evidence of Mr Shorter that the “D” cylinder was on the boat on 15 January 2012. It also relied on the evidence of Ms Challen (who was not on the boat for that trip, but who had seen it on the boat not long before) that it was on the boat. The defendant also tendered documentary evidence of the acquisition of both cylinders and that the cylinders had been serviced in November 2011. It does not follow from the evidence that neither the plaintiff nor Ms Hetherington saw the “D” cylinder on the vessel that day that it was not there. This evidence was not sufficient, in light of the documentary evidence, to discharge the plaintiff’s onus of proving, on the balance of probabilities, that the “D” cylinder was not on the vessel on 15 January 2012. I reject Mr Hart’s submission that the defendant bore the onus of proving that the “D” cylinder was on the boat.

8. [108]

   It was common ground that, if both the “C” and the “D” cylinders were on board, there was sufficient oxygen available. The plaintiff accepted that the “C” cylinder was on board. He failed to prove that the “D” cylinder was not on the boat. Accordingly, the trial judge’s finding that there was insufficient oxygen on board was erroneous.

9. [109]

   Mr Coxon’s evidence did not assist the plaintiff to prove that the oxygen was insufficient since his opinion was based on two unproved assumptions: first, that there was no “D” cylinder on the boat; and secondly, that the plaintiff had asked for oxygen therapy. Although the defendant did not directly challenge Mr Coxon, it challenged the assumptions on which his opinion was based, thereby rendering the opinion of no forensic value: Ramsay v Watson (1961) 108 CLR 642 at 649 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ).

10. [110]

    Further, Mr Cavanagh submitted that the plaintiff could not prove his case on liability irrespective of whether the “D” cylinder was on the boat on 15 January 2012. He relied on the evidence that the “C” cylinder was capable of accommodating two divers simultaneously, one on the continuous supply valve and the other on the demand supply valve. He submitted that the plaintiff had failed to prove that there was insufficient oxygen in the “C” cylinder for both Mr Moore and the plaintiff. To that extent, he argued that the presence or absence of the “D” cylinder on the boat was irrelevant.

11. [111]

    Mr Cavanagh contended that the statement by the plaintiff to Mr Shorter that he was going to take the cylinder with him so that Mr Moore could have the benefit of the oxygen when he travelled to the clinic amounted to an admission that the “C” cylinder still had oxygen in it when the boat was already on the way back to the marina. Mr Cavanagh also relied on the plaintiff’s admission in the incident report form he filled in on 17 January 2012 that the plaintiff was “Kept on O2 till arrival at hospital (Nelson Bay)”. As no other source of pure oxygen was identified by the plaintiff, the source of O2 must have been the “C” cylinder, notwithstanding the plaintiff’s rather implausible suggestion in cross-examination that the “O2” in the incident report form which he had filled in by hand was a “typo”. Mr Cavanagh also relied on the circumstance that there was no support in Mr Moore’s statement for the proposition that the oxygen had run out. Her Honour did not deal with the alternative way in which the defence case was put. In light of the plaintiff’s request of Mr Shorter that he borrow the “C” cylinder and his admission that oxygen was supplied to Mr Moore until he arrived at Nelson Bay hospital I do not regard the plaintiff as having discharged the onus of proving that the “C” cylinder did not have sufficient oxygen which could have been supplied to the plaintiff had he asked for it.

12. [112]

    Since the plaintiff failed to prove that there was insufficient oxygen on board the boat, the plaintiff has failed to prove breach with respect to the Oxygen Supply Case. In so far as the finding of liability rested on this case, it must be set aside.

13. [113]

    The trial judge’s rejection of the evidence of both Mr Shorter and Ms Challen is largely irrelevant to the appellant’s challenge to the finding that there was insufficient oxygen on board as the “D” cylinder was not on board. As Mr Cavanagh put it, in his oral submissions:

14. [114]

    As referred to above, the plaintiff’s evidence, that he did not see the “D” cylinder on board that day, was insufficient to discharge his onus to the requisite standard in any event. However, Mr Cavanagh relied on the trial judge’s rejection of the evidence of Mr Shorter and Ms Challen as providing some indication of the way in which the trial was conducted, and of the ways in which he contended her Honour had misused the advantage she enjoyed as trial judge of hearing and seeing the witnesses.

15. [115]

    Her Honour found:

16. [116]

    The matters referred to in [187] included her Honour’s observation (at [174]) that Mr Shorter’s demeanour changed at a particular point in the cross-examination. That point was when it was put to him that he was lying when he denied that Mr Moore had told him that he wanted to abort the dive because he had hit his head. Her Honour’s adverse credit findings against Mr Shorter and Ms Challen appear to have been largely based on the circumstance that neither had made a written record of what had happened on the day and neither had filled in an incident report form (such as the one that was completed by the plaintiff which is set out above). Her Honour did not make a finding about whether she accepted their evidence about the equipment.

17. [117]

    Mr Shorter and Ms Challen accepted that they had not filled out an incident report form. Mr Shorter explained that he was not obliged to because he was not the diver concerned. Ms Challen was not given the opportunity to explain why she did not fill in an incident report form, but it can reasonably be inferred that her response would have been similar. Her situation was different from Mr Shorter’s since she was not even on the boat at the relevant time. She was on shore, in the dive shop.

18. [118]

    Although Mr Shorter’s evidence that the “D” cylinder was on the boat was corroborated by Ms Challen and by the invoices tendered regarding their acquisition and maintenance, her Honour did not accept it. As referred to above, Mr Shorter’s evidence in chief was that the “D” cylinder was kept on the bench seat next to the first aid kit and that there was a regulator for it which was also on the bench seat. He was cross-examined at length by Mr Hart, as can be seen from the passages from the transcript extracted above.

19. [119]

    The principal challenges made by Mr Hart at trial to the credibility of Mr Shorter were, first, that he had spoken with Ms Challen about the case; secondly, that he had not filled in an incident report form in respect of 15 January 2012 or made any other written record of what happened; thirdly, that he could not remember whether Mr Moore was wearing a dry suit or a wet suit on 15 January 2012; fourthly, that his evidence that he had not read the statement of Mr Moore before giving evidence was “incredible”; fifthly, that he was lying when he denied that Mr Moore had told him that he wanted to abort the dive because he had hit his head; and, sixthly, that he ought to have realised that the plaintiff needed oxygen therapy because he saw him sucking on Mr Moore’s nitrox bottle when Mr Moore was breathing from the “C” cylinder.

20. [120]

    No transcript is adequate to convey the tone of the voices of the persons whose exchanges are transcribed for the court record: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [198]. Nonetheless, in the present case, the content of Mr Hart’s questions, his comments to Mr Shorter and Ms Challen (many of them gratuitous and supercilious) and his inappropriate rebukes to them, make their responses, in so far as they can be discerned from the transcript, understandable.

21. [121]

    The statement of Mr Moore did not provide a basis for Mr Hart to put to Mr Shorter that Mr Moore had told him that he wanted to abort the dive because he had hit his head. There was no basis in the evidence for the proposition that Mr Moore told Mr Shorter, or anyone else on the day, that he had hit his head. Mr Hart was entitled, if it was relevant, to put to Mr Shorter that Mr Moore had told him that he wanted to abort the dive (since Mr Moore’s statement provided a sufficient foundation for this matter), but he was not entitled to put to him that Mr Moore had told him that he had hit his head. A barrister is obliged to take care to ensure that allegations or suggestions made in court against any person are reasonably justified by the material then available to the barrister: Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 61(a). The only relevant material available to Mr Hart was the statement of Mr Moore. It did not support the proposition. By the time Mr Shorter was cross-examined, the plaintiff had given evidence and Mr Moore’s statement had been tendered. Her Honour was privy to Mr Moore’s statement as it was tendered and was therefore in a position to make the assessment that there was no basis to suggest that Mr Shorter was lying. Far from providing a basis to reject the evidence of Mr Shorter, the allegation that he was lying when he denied that Mr Moore told him that he had hit his head was plainly unwarranted and apparently in breach of counsel’s professional obligations. As appears from the transcript Mr Shorter took umbrage at the suggestion that he was lying, which resulted in a change to his demeanour which reflected his understandable outrage at a baseless accusation.

22. [122]

    A trial judge has an obligation to ensure that litigation is conducted in a civil way and that practitioners adhere to their professional responsibilities. It is always a matter of judgment as to whether it is necessary to intervene in cross-examination to protect a witness from unfair questioning. However, I regard the present case as one where judicial intervention was required. Mr Reynolds, on behalf of the defendant objected to the proposition being put that Mr Shorter was lying. Her Honour’s error in failing to uphold Mr Reynolds’ objection had consequences for the trial. It is hardly surprising that a witness such as Mr Shorter would become uncommunicative after having been accused of lying when there was no basis for the allegation to be put.

23. [123]

    Her Honour’s failure to control Mr Hart’s cross-examination of witnesses generally had ramifications for the trial beyond the baseless allegation of lying, which her Honour allowed to be put, referred to above. Procedural fairness requires more than merely giving each party an opportunity to be heard. It also requires that each witness be permitted to answer questions without being abused in the process. This is not to say that cross-examination cannot be robust, but it must be fair. The latitude commonly afforded to cross-examiners does not amount to a licence to offend, ridicule or vilify. Fairness requires that no proposition, particularly one which is damaging to the witness, be put without a basis. It also requires that questions be asked one at a time and that cross-examination not be peppered with gratuitous and, as in the present case, insulting, commentary to the witness. It requires that the witness be permitted to finish his or her answer and not be cut off or needlessly interrupted. Where a trial judge fails to intervene to stop such egregious conduct, an impression can be created that the judge is endorsing, or even collaborating, in such conduct. It is possible that encouragement, whether tacit or explicit, to such conduct could give rise to an apprehension of bias which is inimical to the proper administration of justice. The advantage that a trial judge enjoys of seeing and hearing the witnesses ought not be misused.

24. [124]

    Mr Cavanagh postulated in his submissions that the trial judge:

25. [125]

    I am persuaded by Mr Cavanagh’s submissions that the trial judge in the present case misused her advantage and, in doing so, deprived both Ms Challen and Mr Shorter of a fair opportunity of giving their evidence. Whether her Honour did so for the reason postulated by Mr Cavanagh need not be determined. It is sufficient to say that tribunals of fact, whether judges or juries, are to decide cases on the evidence and act impartially and dispassionately. They must not let sympathy or emotion affect their judgment.

26. [126]

    Because of the way the appellant conducted the appeal it is unnecessary for this Court either to form an assessment of Ms Challen’s and Mr Shorter’s credit from the objective facts and documents and the objective probabilities, even if it were possible to do so; or to order a retrial. It is sufficient for present purposes to say that the trial judge’s assessment of Mr Challen’s and Mr Shorter’s credit was tainted by the errors outlined above and was, accordingly, unsound. It ought not be assumed that credit findings made at trial cannot be impugned because of the so-called Abalos advantage (after Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179; [1990] HCA 47): see Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483; [1993] HCA 78; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [26].

27. [127]

    Mr Cavanagh submitted that, even if breach with respect to the Oxygen Supply Case were established, there would be insufficient evidence to establish causation to the requisite standard. What the plaintiff was required to prove with respect to the Oxygen Supply Case was that, on the balance of probabilities, he would not have suffered decompression illness if oxygen had been supplied to him on the boat. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 the High Court said at [45] and [104] that in order to prove causation, in a case of breach of duty of care by failing to take a particular step (in the present case, by failing to provide oxygen therapy to the plaintiff on the boat), the plaintiff must prove that the taking of such step would, more probably than not, have prevented or minimised the illness which was in fact suffered (in the present case, decompression illness). A defendant who negligently exposes a plaintiff to risk of injury or damage, will not be liable unless the plaintiff can persuade the trier of fact that it was probable the risk ensued: s 5D of the Civil Liability Act; see also Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 318.

28. [128]

    The only evidence on the question of causation came from Associate Professor Mitchell, who was the only witness who gave evidence about the effect of oxygen therapy on decompression illness. Accordingly, it was necessary for the plaintiff to rely on his evidence to prove causation. The trial judge found his evidence to be of limited value and did not accept it in so far as there was any difference of opinion between him and Associate Professor Bennett or Mr Coxon. Associate Professor Mitchell’s evidence was that, although pure oxygen therapy was a recommended first-aid treatment for decompression, the only cure for decompression was recompression. He referred to the 2007 study in his report set out above in support of his opinion that oxygen therapy would not have made any difference in the present case. He said of the 2007 study:

29. [129]

    By the time the plaintiff eventually sought medical treatment for decompression illness from his general practitioner, Dr Cooke, on 4 May 2012, it was too late for recompression. Thus, the only evidence of causation, that of Associate Professor Mitchell, taken at its highest, was insufficient to prove factual causation within the meaning of s 5D(1)(a) of the Civil Liability Act 2002 (NSW) (for negligence) or causation under the ACL for breach of the statutory guarantee. The plaintiff did not prove that the failure to provide oxygen therapy on the boat was a necessary condition of the decompression illness. Proof on the balance of probabilities was required. This was not a case such as Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538; [1940] HCA 45 where causation could be inferred from the sequence of events. The plaintiff admitted to Dr Bennett that had dived 15-20 times after the incident on 15 January 2012. He was examined by two medical practitioners in March 2012 who certified that he was fit to be a diving instructor for the following year. The plaintiff did not report symptoms which he associated with the dive on 15 January 2012 or attributed to decompression illness until 4 May 2012.

30. [130]

    For these reasons, even if, contrary to my view that breach was not established, the plaintiff’s Oxygen Supply Case was not made out as the plaintiff failed to prove causation.

31. [131]

    I note for completeness that the evidence adduced by the defendant appears to have been sufficient to disprove causation in any event. As set out above, Associate Professor Mitchell said:

32. [132]

    Associate Professor Mitchell’s opinion was consistent with the plaintiff’s own admissions in cross-examination (set out above) that the oxygen delivery from the “C” cylinder through the Hudson mask would be at a concentration of between 40-60% of oxygen and that using a regulator to breathe through the pony bottle with its concentration of 50% oxygen and 50% nitrogen would be “about the same”. The effect of this evidence was that the plaintiff could not prove that the result would have been different if he had been given the “C” cylinder with the Hudson mask than it was as a result of his breathing from Mr Moore’s pony bottle using a regulator. This evidence would appear to answer Mr Hart’s submission that the plaintiff, by not requesting pure oxygen from Mr Shorter, was sacrificing himself for Mr Moore.

33. [133]

    In so far as the trial judge’s reasons ought be read as including a finding that the Lifting Case was made out, the appellant contended that the evidence in support of the Lifting Case was not sufficient to discharge the plaintiff’s onus of proof. Mr Cavanagh relied on the evidence that the plaintiff first complained to Dr Cooke, his regular general practitioner, that he had suffered a physical injury as a result of lifting Mr Moore onto the boat three years after the event. On 16 March 2015 Dr Cooke (who had seen the plaintiff many times in the past three years) reported that the plaintiff told him that he “had to exert and carry pt [patient, Mr Moore]” and that he suffered “pain neck L shoulder and elbow”. At this time the workers compensation insurer had stopped paying compensation and he was consulting solicitors for the purposes of the present claim. His solicitors referred him to Dr Mastroianni, an occupational physician, to whom the plaintiff gave a history that he hurt himself because of having to carry Mr Moore.

34. [134]

    The finding that the physical problems suffered by the plaintiff were the result of his having to lift Mr Moore was, in light of the delay in, and circumstances of, their reporting, glaringly improbable. Moreover there was no express finding of negligence per se of failure to render services with due care and skill since there was no identification of what the defendant ought to have done to avert the risk of harm and whether, had the defendant done what it is alleged it ought to have done, the harm would not have been suffered. In these circumstances, if her Honour found the Lifting Case to be made out, she was in error.

35. [135]

    The appellant challenged several findings in its amended notice of appeal. However, for the purposes of the appeal, Mr Cavanagh challenged the following findings since they formed the basis of her Honour’s finding of liability:

    1. (1)

       When the plaintiff was already in the water, Mr Moore told Mr Shorter that he had hit his head on the boat, was injured and wanted to abort the dive;

    2. (2)

       Mr Shorter, knowing of Mr Moore’s head injury, told him that he should inform the plaintiff, who was already in the water, that he wanted to abort the dive;

    3. (3)

       In doing so, Mr Shorter (and therefore the defendant) was negligent and was, accordingly, responsible for all the consequences of Mr Moore’s dive, which included the plaintiff having to come up to the surface quickly and having to lift Mr Moore onto the boat.

36. [136]

    Mr Cavanagh referred to the only source of evidence for this finding, Mr Moore’s statement, in which Mr Moore said:

37. [137]

    It was accepted by Mr Cavanagh that, although Mr Moore did not name Mr Shorter as being the “staff on the boat”, it could reasonably be inferred that he was, since he was the skipper and remained on the boat throughout the dive and that everyone else was in the water. However, Mr Moore’s statement provides no basis for the proposition that Mr Moore told Mr Shorter that he had hit his head on the boat. Mr Shorter denied that he knew that Mr Moore had hit his head and denied being told by Mr Moore that this had happened. In these circumstances, there was no evidence that Mr Moore told Mr Shorter that he hit his head on the boat or that Mr Shorter was otherwise aware of it. The present is not one of those rare cases where it is open to the tribunal of fact to infer the opposite from a witness’ denial: Steinberg v Commissioner of Taxation of the Commonwealth of Australia (1975) 134 CLR 640 at 694 (Gibbs J); [1975] HCA 63. For this reason, her Honour’s finding that Mr Moore told Mr Shorter that he had hit his head on the boat and was injured was erroneous.

38. [138]

    This finding must also fail as there was no evidence that Mr Shorter knew of the head injury. It was not suggested that there was anything unreasonable in Mr Shorter telling Mr Moore to inform the plaintiff that he was aborting the dive, if Mr Shorter did not know that Mr Moore had hit his head. Further, because of the way the cross-examination was conducted, it was not actually put to Mr Shorter that he had told Mr Moore to tell the plaintiff that he was aborting the dive. The flaws in the cross-examination of Mr Shorter have been addressed above.

39. [139]

    Although the trial judge did not specifically find that the defendant was liable to the plaintiff for the consequences of the dive because Mr Shorter had told Mr Moore to tell the plaintiff that he was aborting the dive, it appears that her Honour determined the defendant’s liability at least in part on that basis. This conclusion cannot stand in light of the flaw in the first premise (that Mr Shorter was aware that Mr Moore had suffered a head injury).

40. [140]

    However, in any event, it is difficult to discern any basis on which the defendant could be responsible for the dive in light of the events which happened. As set out above, the plaintiff’s evidence was that he and Mr Moore made their way around to the front of the boat on the surface before descending. Before they commenced their descent they made mutual signs to signify that they were both ready and willing to descend. Whatever reservations Mr Moore may have had about the dive earlier, they were no longer operative at this point as her Honour accepted at [76] when she found:

41. [141]

    In these circumstances, even if Mr Shorter had told Mr Moore that he need not tell the plaintiff that he wanted to abort the dive, it would appear that Mr Moore would have changed his mind anyway and gone on the dive. Thus, even apart from the question of negligence, factual causation was not established either under s 5D(1)(a) of the Civil Liability Act or the ACL.

42. [142]

    On the second day of the hearing of the appeal Mr Hart sought leave to file a notice of contention in the following terms:

43. [143]

    The Court did not, before it reserved its decision, determine whether leave to rely on the notice of contention ought be granted. As is apparent from its terms the first ground of the notice of contention relates to the alleged failure to make an inquiry; and the second relates to the failure to make records.

44. [144]

    In respect of the first ground, Mr Hart was unable to articulate why it was unreasonable for the defendant to accept the plaintiff’s assessment of his own condition and the assurances given by the plaintiff to Mr Shorter that he was all right.

45. [145]

    Mr Hart relied on the transcript (Briggs v State of New South Wales [2017] HCA Trans 109) of an application for special leave to appeal to the High Court against the decision of this Court in State of New South Wales v Briggs [2016] NSWCA 344. In State of New South Wales v Briggs this Court allowed an appeal against a judgment in favour of the respondent police officer against the State of New South Wales for damages in negligence for injury alleged to have been suffered in the course of his duties. A relevant matter in State of New South Wales v Briggs was whether it was unreasonable for the State to accept the police officer’s non-disclosure of difficulties which he suffered as a result of his exposure to traumatic events in his service as a police officer or whether reasonable care required a more substantial inquiry. It is undesirable and inappropriate to attempt to predict the result of an appeal from the transcript of a special leave application. In any event, questions of duty and breach in the law of torts depend on circumstances. I discern no relevant comparison between the present case and State of New South Wales v Briggs where the appellant was, in effect, the respondent’s employer who owed him a non-delegable duty to take reasonable care to provide him with a safe system of work. In the present case, the evidence established that the plaintiff’s experience and expertise relating to diving and decompression illness was substantial. The evidence did not establish that anyone else on the boat had expertise on these topics which was superior to the plaintiff’s.

46. [146]

    Moreover, even if the proposition in the respondent’s notice of contention, that the defendant was obliged to make an enquiry of the plaintiff as to his physical and mental state, were made out, the evidence established that such an enquiry was in fact made by Mr Shorter.

47. [147]

    The second ground in the notice of contention was bound to fail. There was no conceivable connection between the failure to make a record and the injury suffered. Further, there was no explanation as to how the making of a record was part of the duty of care owed to the plaintiff. Mr Hart was invited on several occasions to identify the “accepted regulatory and/or voluntary codes” relied upon but was unable to do so.

48. [148]

    In these circumstances, I would refuse leave to the respondent to file and rely on the notice of contention as I consider both grounds to be hopeless. Neither of the matters alleged in the notice of contention provides any basis to support the trial judge’s finding that the defendant was liable to the plaintiff.

49. [149]

    The defendant alleged at trial that the plaintiff had failed to mitigate his loss. As set out above her Honour found that no deduction ought be made to the plaintiff’s damages on the grounds of contributory negligence and therefore did not need to consider the effect of s 56 of the Civil Liability Act on any defence of contributory negligence.

50. [150]

    As to her Honour’s findings of failure to mitigate (set out above), Mr Cavanagh contended that her Honour had failed to address the defendant’s submission that the plaintiff, by failing to seek recompression until it was too late, failed to mitigate his loss. As appears from her Honour’s reasons, her Honour addressed only the plaintiff’s conduct on board the boat and at the clinic which he attended to accompany Mr Moore. The trial judge failed to address the proposition that the plaintiff ought reasonably to have sought recompression after he suffered headaches on the night of the incident or shortly afterwards when recompression would have been effective to cure any decompression illness he had suffered as a result of the dive on 15 January 2012. I am satisfied that the defendant established a failure to mitigate on this basis. The expert evidence of Associate Professors Mitchell and Bennett and the plaintiff’s own evidence, established that recompression is the cure for decompression illness but it must be given soon after the dive which caused the illness. The plaintiff was well aware of the urgency of seeking recompression in circumstances where decompression illness was suspected.

51. [151]

    Section 5L of the Civil Liability Act provides that a defendant is not liable in negligence for harm suffered by a plaintiff as the result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Section 5L is contained in Part 1A of the Civil Liability Act. Section 5A(1) provides that Part 1A applies to any claim for damages for harm resulting from negligence regardless of whether the claim is brought in tort, in contract, under statute or otherwise. As the basis for the plaintiff’s claim under ACL is statute, but the harm was alleged to result from negligence, s 5L is relevant, if otherwise applicable. As referred to above, it was common ground that it was applicable as a matter of law.

52. [152]

    The defendant submitted that scuba diving is a dangerous recreational activity and that the risk of decompression sickness is a well-known and obvious risk of that activity. Whether s 5L of the Civil Liability Act operates to exclude liability depends on the allegations of negligence made. Thus, s 5L of the Civil Liability Act would not operate to exclude liability for negligence in the Lifting Case, had it been made out. It is not necessary to determine whether, had the plaintiff established liability under either of the other two formulations of his case, the defence under s 5L of the Civil Liability Act would have been made out, in light of my conclusion that he has failed to establish that the defendant was liable on any basis argued.

53. [153]

    For the reasons given above, none of the cases sought to be made out by the plaintiff, either at trial or in the notice of contention, was made out. Accordingly, the judgment in favour of the plaintiff ought be set aside and replaced by a judgment in favour of the defendant. In these circumstances it is unnecessary to address the appeal in so far as it relates to the appellant’s challenge to the assessment of economic loss. However, it is convenient to deal with the submissions in these reasons.

The appeal against quantum of damages

1. [154]

   The trial judge’s findings on damages were relevantly as follows:

2. [155]

   The trial judge entered judgment for the plaintiff on 16 December 2016 in the sum of $638,144. In assessing damages for loss of earning capacity, the trial judge accepted the plaintiff’s submissions as to how such loss ought be assessed. The trial judge found that the plaintiff would never be able to work as a diving instructor again, presumably on the basis that he will continue to suffer the long term effects of decompression illness for the rest of his life. Her Honour accepted Mr Hart’s submission that the plaintiff ought be compensated for loss of earning capacity by calculating past loss on the basis of the plaintiff’s claim of 70% of Average Weekly Earnings (AWE) of $812 net from the day of the accident, 15 January 2012 to the date of judgment and thereafter “for the rest of his working life” on the basis of a figure of $1,112, which was the AWE at the time of trial. There was an allowance of 30% for vicissitudes in accordance with the plaintiff’s submission at trial.

3. [156]

   Following the ordering of judgment for the plaintiff on 25 November 2016, the trial judge invited the parties to prepare short minutes for the damages figure in accordance with her Honour’s reasons. As referred to above, her Honour quantified the judgment sum on 16 December 2016. The amount for past economic loss (not including past superannuation and the Fox v Wood component: Fox v Wood (1981) 148 CLR 438; [1981] HCA 41) was $142,760 and the amount for future economic loss (not including superannuation) was $389,200.

4. [157]

   The plaintiff claimed that he earned $1,000 a week. The plaintiff’s wage records as at 20 January 2012 showed year-to-date earnings of $24,000. The same records as at 11 May 2012 showed year-to-date earnings of $40,000. Accordingly, the plaintiff’s wages were $16,000 between 20 January 2012 (immediately post-accident) and May 2012. On this basis, the plaintiff must have worked every weekend between 20 January 2012 and 11 May 2012.

5. [158]

   The wage reimbursement form prepared by the plaintiff’s workers compensation insurer showed that for the weekly pay periods commencing 16 January 2012 the plaintiff claimed and was awarded $1,000 per week, being an amount said to be equivalent to his pre-injury earnings. The claim of $1,000 per week was inconsistent with the plaintiff’s wage records and also inconsistent with his earnings as shown in those records for the period to May 2012. His claim was also inconsistent with his admission to Associate Professor Bennett that he had undertaken 15-20 dives in that period and the passenger movement cards referred to above.

6. [159]

   The plaintiff’s tax returns for the year ended 30 June 2011 showed that he earned $440 net per week. His income tax return for the year ended 30 June 2013 showed that he was paid $18,000 by Frew Investments. If one accepts that he generally earned $1,000 per week, it follows that he worked for 18 weeks after 1 July 2012.

7. [160]

   The appellant submitted that if account is taken of the $16,000 which the plaintiff was paid by Frew Investments after the accident and before 30 June 2012 and the $18,000 which he was paid by Frew Investments from 1 July 2012 to 30 June 2013, the plaintiff’s claim for past economic loss was overstated by $34,000, even if it was accepted that he should be compensated on the basis of $1,000 per week.

8. [161]

   The appellant contended that, as the plaintiff had tendered his tax returns and had not given evidence to suggest that they were incorrect or to explain why the figures in them ought be used, his damages ought be assessed by reference to them. Mr Cavanagh submitted that damages, if awarded, ought be awarded on the basis of $440 net per week and that damages for past economic loss ought be reduced by the amount of the payments received after the accident.

9. [162]

   Mr Hart submitted that it was open to the plaintiff to put his claim for damages on the basis of AWE and that there was no need for him to explain the figures in his tax returns.

10. [163]

    Her Honour found that the plaintiff was a consumer and that the defendant had breached the statutory guarantee in s 60 of the ACL that the “services” would be rendered with due care and skill. Although her Honour did not specify what the services were, I am prepared to assume for present purposes that, if the Oxygen Supply Case had been made out, the “services” would have been the provision of oxygen therapy. In these circumstances, the plaintiff would have been entitled to have his damages assessed by reference to s 267 of the ACL. Section 267(4) of the ACL relevantly provides that the consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

11. [164]

    Although there may be differences between damages under s 267 of the ACL, damages at common law and damages under the Civil Liability Act, what is common to any such assessment of damages is that the plaintiff prove what his position would have been but for the defendant’s conduct: see Gates v The City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 14-15 (Mason, Wilson and Dawson JJ); [1986] HCA 3. The plaintiff’s unchallenged evidence was that, but for the events of 15 January 2012, he would have continued to run his business. In these circumstances, his damages ought to have been assessed by reference to the amount he could be expected to have earned from that business from the date of the accident and into the future, with allowance for any actual earnings in that period. There was no justification for her Honour to assess the plaintiff’s damages on the basis of AWE when there was no evidence to suggest that the plaintiff would have sought employment rather than run his own business.

12. [165]

    In the absence of evidence by the plaintiff to explain how the different, and inconsistent, figures in the documents he tendered in his case could be reconciled or explained, I consider that, had the defendant been liable to the plaintiff, damages ought to have been assessed on the basis of $440 net per week, with a deduction for the amounts shown to have been earned after the accident. It is not necessary, having regard to my view that the appeal against liability ought be allowed and the judgment set aside, for such damages to be calculated by this Court.

Proposed orders

1. [166]

   I propose the following orders:

   1. (1)

      Refuse leave to the respondent to file the notice of contention dated 1 September 2017.

   2. (2)

      Allow the appeal.

   3. (3)

      Set aside the judgments of Gibson DCJ dated 25 November 2016 and 16 December 2016 and the costs order made on 22 December 2016.

   4. (4)

      In lieu thereof,

   5. (5)

      Order that the respondent pay the appellant’s costs of the appeal.