MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD [1988] NSWCA 93

MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MCHUGH and CLARKE JJA 4 August 1988, 24 November 1988

[1988] NSWCA 93

NEGLIGENCE — diving operations — diver contracts "the bends" — sues employer in negligence — alleges unsafe system of work — particularises failure to give proper instructions — whether employee disobeyed instructions in ascending directly to the surface without stopping at the stages directed for the avoidance of "the bends" — whether inadequate system for the instruction of the employee — whether negligent direction given on behalf of employer — held; (McHugh JA and Clarke JA; Kirby P dissenting); (dismissing appeal from McGuire DCJ) In the way the plaintiff's case was conducted at the trial it was not open to him to rely on a ground of negligence which, although particularised, was not put to the defendant's witnesses and was not the basis of the plaintiff's case at the trial. Water Board v Moustakas (1987) 62 ALJR 209, 211 applied. APPEAL — rehearing — appellate court — whether limited by findings on credibility — primary judge holds that one version "more credible" — whether implies reliance upon impression of witnesses — held; Having regard to the reasons given, the trial judge did not disbelieve the appellant and accordingly was assessing the probabilities which could equally be done by the Court of Appeal on the evidence. Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 distinguished; Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207; Chambers v Jobling (1986) 7 NSWLR 1 referred to. JUDGES — reasons — judicial obligation to state reasons evaluation of probabilities between conflicting evidence of employee and employer's principal — trial judge states each version is "convincing" — concludes one version "more credible" — dismisses claim observations by Kirby P (dissenting) on whether such a statement of conclusion provided adequate reasons. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 applied; Apps v Pilet (1987) 11 NSWLR 350 considered. ORDERS (By majority) Appeal dismissed with costs.