TRIMEN v JANES [1988] NSWCA 161

TRIMEN v JANES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MCHuGH JJA 17 February 1988 [1988] NSWCA 161

APPEAL — credibility — acceptance of witness — difficulty in setting aside verdict — Iskanderian vy Iskanderian Bros Pty Ltd (Court of Appeal) (24.2.87) applied ORDER Appeal dismissed with costs.

McHugh JA This is an appeal by an unsuccessful plaintiff in a District Court action against a verdict for the defendant in an action for damages for personal injuries. The action was heard by Gallen DCJ without a jury. His Honour held that there was no negligence by the defendant in the control of a boat known as Battle Star which the plaintiff alleged had struck a reef known as Sow and Pigs while she was a passenger on it.

The incident which gave rise to the action occurred in the early afternoon of 25 March 1981. Battle Star was engaged in a race on Sydney Harbour on that afternoon. After leaving the Middle Harbour Yacht Club, the boat had gone in a general northeasterly direction to a marker near Inner South Head and then turned south and headed in a general southwesterly direction towards Chowder Bay. It is common ground that shortly thereafter the boat' collided with some object at a point on, as the plaintiff alleges, or in the vicinity of, as the defendant alleges, Sow and Pigs Reef.

The plaintiff's case was that the boat probably hit a large boulder which was part of the extended reef and which, at that time of the day, would have been covered by about six foot six inches of water.

On the southeastern corner of the reef is a beacon which stands eight metres high. Opposite, some distance away, is a beacon on what is called the Western Channel of the harbour.

Much of the evidence in the case was common ground, although there was a conflict concerning the crucial facts of the case. It was common ground that Sow & Pigs Reef consists of several small passages of rock extending in a northwesterly direction from the beacon for 108 or 109 metres. At low tide it is covered at varying depths of between 1.2 and 2.7 metres. About eighty-nine metres northwest of the Sow and Pigs Reef beacon is a large boulder covered by water which is alleged to have been covered by water on 25 March 1981.