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. Kirby P I differ in my conclusion from the other members of the Court. I must therefore state why. In doing so, I will offer comments on four points only. The bar of witness credibility The first relates to whether this Court is entitled to pass by the Suggested finding by the trial judge (McGuire DCJ) concerning the appellant's credibility and to enter into its own assessment of the probabilities on the basis of the evidence. Does an apparent finding on witness credibility effectively terminate the utility of the appeal? Many cases refer to the nature, origin and extent of the suggested disadvantage which appellate judges have in reviewing facts, where questions concerning the credibility of witnesses are important for the resolution of the controversy before the court. The locus classicus of the statement of disadvantage is to be found in the well known words of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37, 47, when he said; "....not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing 2 UNREPORTED JUDGMENTS conclusions so arrived at, merely on the result of their own comparisons and criticisms of witnesses and of their own view of the probabilities of the case." Since those words were spoken, doubt has been cast upon the extent and nature of the suggested advantage. Lord Atkin, when a member of the English Court of Appeal, warned that; "The lynx-eyed Judge who can discern the truth teller from the liar by looking at him, is more often found in fiction or in appellate judgments than on the Bench". See Soc d'Avances Commerciales v Merchants' Marine Insurance Co (1924) 20 LILR 140, 152. These were typically prescient warnings, which have since been reinforced by numerous observations of high authority and by psychological research, demonstrating the fallibility of human perception of truth telling. This fallibility is, perhaps even more likely to affect decision making when perceived from the impression which witnesses give in the artificial circumstances of a courtroom witness stand. However that may be, the High Court of Australia has accepted the principle stated in Hontestroom on a number of occasions. See eg Paterson v Paterson (1953) 89 CLR 212 at 222; Warren v Coombes (1978-79) 142 CLR 531 at 537; Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842, 844 and Baumgartner v Baumgartner (1987) 62 ALJR 29, 32-33. It is the duty of this Court to conform to the instruction of the High Court of Australia. It does so. See eg Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207, 209; Rama Furniture Pty Ltd v QBE Insurance Ltd unreported, CA, 20 June 1986; (1986) NSWJB 132; Metropolitan Water Sewerage and Drainage Board v Nash unreported CA, 8 October 1987; (1987) NSWJB 221. In the course of doing so, the Court has acknowledged other relevant advantages which trial judges enjoy, quite apart from the suggested advantage derived from their observations of witnesses. Chief amongst these is the advantage of hearing the evidence in its entirety and in sequence and of having the time and opportunity to reflect upon that evidence as it unfolds and to reach a final conclusion derived from that position of advantage. For my own part, I have always considered this to be the principal advantage of the trial judge, when compared to the appellate judge, who typically has less time to absorb the facts and must normally do so under the competing stimuli of the reading of selected passages, thought to advantage the respective parties to the appeal. Accepting to the full the instruction of the High Court, and allowing for the other advantages of trial judges (mentioned by me in Zemlicka ibid at 209-210), these do not bring to an end the appellate function of this Court, provided, as it is by Parliament, to be conducted by way of rehearing. Least of all do they do so because a judge, in the course of reasons for judgment, uses a well worn formula about the impression which witnesses have made, as it affects the assessment of that witness's credibility. So much is shown by what the Court did in Chambers v Jobling (1986) 7 NSWLR 1. As the High Court pointed out in Brunskill, the question is not whether a particular formula as to credibility is used. It is not even whether the judge has entirely omitted to refer to the credibility of a vital witness. It is whether, expressly or by implication, the primary judge has reached a conclusion based upon the view which he or she has formed of the credibility of important witnesses. In an appellate court, conducting an appeal by way of rehearing, therefore, the search is not for a formula of words but for an understanding of the process of reasoning which led the primary judge to the conclusion under challenge. In the event that it is concluded that that reasoning includes, within it, a step necessarily based upon the impression made by a witness or witnesses, it is then open to the appellate court to reach a different URJ MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (Kirby P) 3 conclusion without seeing that witness or those witnesses only if, as it is variously stated, the conclusion of the primary judge is "glaringly improbable". In approaching this appeal, therefore, the first question is whether, either by the words used or by the stated or apparent process of reasoning to his conclusions, McGuire DCJ relied upon an impression which he had reached concerning the credibility, ie truth telling, of the appellant. It must be acknowledged that there are two indications that he did. The first is that he gave no other substantial reasons by reference to any analysis of the evidence, in order to derive his conclusions from a logical assessment of the probabilities based upon the whole of the evidence. This suggests that, in the end, his Honour's conclusion may have been reached in reliance upon the impression which the witnesses made upon him. He had, after all, to make a critical choice between the version of important facts which he preferred. Was it the testimony offered by the appellant or by Mr Riley? The second reason suggesting such a conclusion is that, at the end of his reasons for judgment where his Honour approached the conclusion which he reached, he used the word "credibility". The word appears in the following passage; I am not persuaded by the evidence of the plaintiffs expert, Lieutenant-Commander Anderson, that the sixth dive was a hazardous venture. However, I am persuaded that the sudden ascent, described by the defendant, accounted for the plaintiff's misfortune. Both the plaintiff and defendant, per Mr Riley, have given convincing versions of events. However, it is clear that the memory of one of them is faulty. I cannot accept the accuracy of both versions and I find the defendant's account to be more credible". The Macquarie Dictionary gives the definitions of "credible" as "capable of being believed; believable; worthy of belief or confidence; trustworthy". The synonyms offered by the Shorter Oxford Dictionary are virtually identical. In terms of the habits of the profession, a reference to "credible" will frequently be taken to signal to an appellate court the fact that the trial judge's conclusion was being based upon the impression he had received about whether the relevant witness was capable of being believed. But is this a correct analysis of what his Honour concluded in this case? If it is, it confines this Court's review of his general conclusions on the facts to accepting that finding or to reviewing it in the very limited circumstances allowed by the principles adopted by the High Court of Australia and re-stated in Brunskill. For three reasons, I do not believe the Court is, in this case, so limited by a finding of credibility. First McGuire DCJ acknowledged that the appellant, alike with Mr Riley, had given a "convincing version of events". Evidence which is not believed, or is regarded as untrustworthy, is scarcely likely to qualify for a description that it is "convincing". Accordingly, this passage in his Honour's judgment suggests that the word "credible" was used in another sense. It implies that his Honour accepted that the appellant's evidence was truthful, ie credible, in the normal sense. Secondly, McGuire DCJ refers in his judgment to the "versions" and "accounts" of the happening of the accident. These words imply that, as he approached his ultimate conclusion, he was weighing the competing "versions" and "accounts" in order to decide between them as to which was more probable. This, in turn, implies that his decision, though expressed with the use of the word "credible", was actually a decision reached upon his analysis of the probabilities. 4 UNREPORTED JUDGMENTS Thirdly, McGuire DCJ expresses his opinion about the account of events which is "more credible". The word "more" implies that each "version" or "account" was credible, including that of the appellant, although Mr Riley was "more credible". The word implies that each account was believed by his Honour. He simply had to evaluate, without disbelieving either witness, which was the more probable or likely account. In this, he was performing the normal function of a judge deciding between the Probabilities disclosed by the evidence given by different witnesses. For these reasons, I consider that McGuire DCJ, in his judgment, used the word "credible" in an atypical sense, to mean probable". His conclusion was not based, either in the language used or in the necessary implication from it, upon a disbelief of the appellant derived from the impression which he made in the witness box. If this is so, this Court is not barred by a finding of credibility, in the normal way, from conducting an appellate review of all the facts. On the contrary it must do so in the manner laid down by the High Court of Australia in Warren v Coombes (above). If the Court is not barred from doing so, either by an express or necessary reliance of McGuire DCJ upon the impression made by witnesses as to their truthfulness, this Court can just as readily as his Honour did, review the facts and reach its own conclusions upon the probabilities Indeed, that is the whole point of providing appellate review, by way of rehearing. Entitlement to reasons This conclusion brings me to my second comment. McGuire DCJ's description of the circumstances in which the appellant met his injury is admirable for its clarity and brevity. However, it is inherent in what I have stated above that I have come to the conclusion that his Honour reached his decision upon his assessment of the probabilities in this case. Yet, doing so, his Honour did little more than to state a conclusion. He did not proffer reasons for reaching the conclusion thus stated. In a series of decisions this Court has stressed the obligation of judges to give reasons for their conclusions. At least they must do so where such conclusions are subject to appellate review. The starting point of the relevant authorities is Pettitt v Dunkley [1971] 1 NSWLR 376. That decision has been applied in this Court in many decisions. It has been followed elsewhere In Australia and indeed overseas. The principle stated in the case was referred to with approval in the High Court of Australia in Public Service Board of New South Wales v Osmond (1985-86) 159 CLR 656, 666. It provides the standard accepted as binding on the judiciary of this State. It is a rigorous and a high standard. Qualifications to the obligation to give reasons have been noted in various decisions. Reasons may not be required, depending upon the circumstances, in routine decisions of practice and procedure. See eg discussion in Housing Commission (NSW) v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378, 386 and Hooker Corporation Ltd v Darling Harbour Authority, unreported, CA, 17 November 1988. However, even this exception is not an inflexible one. Thus, in Apps v Pilet (1987) 11 NSWLR 350, a decision of a single Judge of the Supreme Court refusing without reasons to expedite the hearing of an application was unanimously reversed. The Court held that, in the circumstances of the case, reasons were required because the refusal of expedition effectively disposed, in practical terms, of the controversy between the parties. URJ MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (Kirby P) 5 Further and different rules may apply to appeals which are limited to points of law only. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270, 281. In that case McHugh JA pointed out (ibid 280) that "more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies". His Honour explained that in the first class of case, "unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal". I agree with these observations. To them I would add once again, a reference to the well chosen words of Chilwell J in Connell v Auckland City Council [1977] 1 NZLR 630, 634. There, his Honour pointed out that the failure of a court to afford reasons in such a case could, in a modern community, result in a litigant who is not only "disappointed" by the adverse result but also "disturbed". That party is entitled to know why the trial judge reached a conclusion adverse to his claim. Such an entitlement is derived in a case such as the present from the judicial role and from a trial which took place over two days and involved evidence which occupies 140 pages of transcript. For that litigant it is not convincing or satisfying to have a bald statement that another witness's evidence was preferred to his own. When the trial system moved from unaccountable decisions on facts by juries providing a general verdict to reasoned decisions of judges sitting alone, which were subject to appellate review, it accepted a different, and in some ways, higher standard. This is not to say that lengthy reasons, any more than tedious recitation of the facts, is obligatory. Nor is it to say that reasons should be manufactured to justify what is essentially an impressionistic conclusion. Nor is it to overlook the fact that, in some cases, the decision maker has no objective means of choosing between competing versions of the same facts. But insofar as there are reasons which point to the conclusion that one version is more probable than the other, it is nowadays expected that judges will provide at least some analysis of those indications. They do so, as required by Pettit, confirmed by Osmond, in order to facilitate the very function in which this Court has been engaged; namely to perform the analysis of the probabilities which is required by the very function of a "rehearing". But in social terms, they do so in order, especially, that the litigant who loses the case will understand why his or her case has not prevailed. In the present case, the reasons given by McGuire DCJ would reasonably have left the appellant in a state of uncertainty as to why he had lost. The judge described his version as "convincing", yet rejected it. He even described it as "credible" and so he did not, by inference, reject it because he thought the appellant was telling lies. There were indicia available to unravel the probabilities, as the members of this Court have shown (although reaching opposite conclusions). However briefly, I consider that it is the duty of trial judges to offer such reasons. By doing so, they may not convince the losing party. But they will at least explain why that party has lost. I say this with respect to his Honour for in many other ways, his reasons are a model of clarity and provide an accurate and brief statement of the controversy which was before him. A different case on appeal? Having concluded that this Court is not barred by a closed gate marked "Credibility - appellate judges keep out!", it is then the Court's duty to consider for itself the probabilities to which the facts, proved before McGuire DCJ, point. Upon these I respectfully differ from the opinions expressed by the other members of the Court. This brings me, therefore, to my third comment. 6 UNREPORTED JUDGMENTS I acknowledge the force of what McHugh and Clarke JJA have written about the way the appellant presented his case at the trial, especially by his oral evidence. In reviewing the facts, this Court must be careful to conform to what the High Court said in Water Board v Moustakas (1987) 62 ALJR 209, 211. A passage from the judgment in that case is set out in Clarke JA's judgment. In its essence, that instruction is simply to ensure the observance of procedural fairness. A party should not have to meet, on appeal and for the first time, a new case on the facts which is different from that pleaded, particularized and fought below. But that is not the case here. In my view it was open to McGuire DCJ to find, and I should have found on the facts, that Mr Riley's instructions to the appellant, accepting his evidence to the full, were inadequate. I believe that it was negligent for Mr Riley, in such a dangerous phase of an inherently dangerous operation, to give the unembroidered instruction which he did to "leave the bottom now". Furthermore I consider that it was negligent of him to give no further instruction to the appellant, eg specifically to go first to the nine metre mark. Speculation about what Mr Riley might have said if these propositions had been put to him, in terms in cross examination, is not convincing. He would not be permitted by the law of evidence to state what in his opinion the appellant already knew. He would not have said that he did give the instruction to proceed in stages, because he had already been taxed about exactly what he had said. And his evidence on that matter is quite specific. It is recorded in McHugh JA's judgment. Nor is it at all likely that Mr Riley would have said that he had told the appellant, whilst on the bottom, to ascend to the nine metre mark only. He had more than ample opportunity to do so in examination in chief and cross examination, both of which were clearly addressed to this issue. He adhered to his statement that he simply said "Leave the bottom now". In my view that was a dangerous instruction in the circumstances. Complaint about that instruction was within the appellant's pleading. It was also within his particulars of; Failing to give...proper instructions as to the time he was to spend at each stage of his return to the surface from his final dive. The respondent was therefore on notice of the alternative ways in which the appellant brought his case. The fact that his case was presented in one way does not impose a straight jacket on the appellant on appeal. Fairness to the respondent does not preclude the appellant's advancing his case before us in this way. The process of reasoning which I prefer may, it is true, involve a new interpretation of the facts. Indeed it may be one different to that asserted by the appellant himself at the trial. But it accepts to the full the version of the respondent's witness, Mr Riley. And it then asks whether, accepting that version as the more probable, it is, on its face and without more, proof of negligence for which the respondent is liable. The respondent's witness, Mr Riley, knew the case of the appellant when he gave his evidence. So did the respondent's counsel. There were, in my view, no new facts which could have been introduced to answer that case, which the respondent did not have a full chance to explore at the trial. In fact, there were two quite different versions of the relevant events. Like the other members of the Court I would, on the probabilities, prefer that of Mr Riley. I do so not because of any conclusion about witness credibility, but because of the inherent likelihood of the events, duly examined. Between the two versions there was no room for URJ MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (Kirby P) 7 relevant compromise. No evidence could be suggested by the respondent's counsel to this Court which would have altered the evidentiary position. In these circumstances, there is no procedural unfairness in this Court's saying; We prefer the version of events given by the respondent's witness to that given by the appellant. But on that version, negligence is established. In deciding the ultimate issue, this Court is not confined to the evidence of the appellant or to his case. At the end of the evidence, and considering the whole of it, the Court must reach its own conclusion. It is not unique for negligence to be proved from the defendant's case. That is what happened here. The employer's negligence by the modern standard The basic question which then arises in this appeal is whether, when the appellant was directed to leave the bottom, he should have been instructed at the time to go to the nine metre mark. The extent of the duty of care owed by an employer to an employee was stated once again by the High Court of Australia in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. At 308-9 Mason, Wilson and Dawson JJ said; .. What reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. insofar as legislative requirements touching industrial safety have become more demanding upon employers. This must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v Tedman (1985) 155 CLR 306 at 313; "Accident prevention is unquestionably one of the modern responsibilities of an employer". However, it would be wrong to exaggerate the recency of the tragedy in this regard. It has long been required of an employer that in the case of repetitive work under strain you take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee... Here the appellant was working on the bottom of the harbour tying a large mattress to the perimeter wire and anchor block. He had been on the harbour floor for a long period. He had made five previous dives in which he had ascended directly to the surface. The appellant was dependent upon Mr Riley to inform him when his time on the bottom had expired and to calculate the number, depths and duration of the stops required. Any error on the part of Mr Riley had enormous potential consequences for the appellant. As is commonplace, brain damage, death or paralysis are frequent consequences of decompression illness. The failure to give the appellant adequate instructions therefore gave rise to the risk of grave injury to him. Having regard to the risk involved and the circumstances of the case, a reasonably prudent employer was bound to take into consideration the possibility that, by inadvertence, the appellant might come directly to the surface. The appellant had already disobeyed an earlier instruction to leave the bottom. Whether his disobedience was the result of deliberate act or forgetfulness is for this purpose irrelevant. Moreover, Mr Riley was well aware that commercial divers sometimes forget to make decompression stops. He was asked; Q. In all of your years as a diver have you seen a diver knowing that he has to make decompression stops, a commercial diver say, of some two years experience, especially 8 UNREPORTED JUDGMENTS as the plaintiff was, how often have you seen a commercial diver just come straight to the surface? A. On a number of occasions, and I have it recorded, and in particular, on that job with John Briggs. Having regard to the risk to the appellant if, by inadvertence, he should come directly to the surface, his coming directly to the surface on the five previous dives, the repetitive nature of his work, and the lapse of thirty six minutes or more since the instructions about ascent were last given, reasonable care required that the appellant be given a reminder to proceed to the nine metre mark. While the risk of the appellant's coming directly to the surface instead of going to the nine metre mark might be regarded as small, it was nevertheless a real risk. As Lord Reid said in "The Wagon Mound" [No 2] [1967] 1 AC 617 at 643-644; If a real risk is one which would occur to the mind of a reasonable man in the position of the Defendant's servant and which he would not brush aside as far fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate presented no difficulty, involved no disadvantage, and required no expense. In my opinion the respondent was in breach of the duty of care which it owed to the appellant. The appeal should be allowed. Judgment should be entered in the action for the appellant/plaintiff. Contributory negligence of the worker The respondent raises contributory negligence. This brings me to consider the fourth point in the appeal. It cannot be suggested that the appellant's neglect to go the nine metre mark was the product of a deliberate act with full appreciation of the danger. So much was not even suggested by the respondent. His omission was, at worst, the result of thoughtlessness or inadvertence on his part. In determining whether an employee is guilty of contributory negligence, a line must be drawn as to where "mere thoughtlessness or inadvertence or forgetfulness ceases and where negligence begins" Caswell v Powell Duffyryn Collieries [1940] AC 152 at 176. However, as the High Court pointed out in Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 33, 37, negligence and inadvertence are not mutually exclusive categories. An inadvertent act is frequently a negligent act. Even in the case of an employee, inadvertence will amount to negligence when it falls below the standard of care which can reasonably be expected of an employee in the circumstances of the case. Notwithstanding that the appellant had made a series of dives, was engaged on repetitive work and had been on the bottom for a long period, I consider that his omission to go to the nine metre mark does constitute negligence on his part. His omission was not a heedless act done in a moment. After he left the bottom of the harbour, he had to ascend fifteen metres to get to the nine metre mark. However, he continued right to the surface. In the circumstances I think that the appellant was guilty of contributory negligence. Nevertheless, the greater share of the responsibility for the damage which he suffered must lie with his employer. It had control of the operation and of the appellant. He was in a specially vulnerable and dependent position, reliant as he was on Mr Riley who was supervising the operation. An apportionment of twenty percent responsibility to the appellant is just and equitable in the circumstances of the case. That is what I would order. URJ MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (McHugh JA) 9 Orders The appeal should be allowed. The judgment for the defendant should be set aside. In lieu thereof, judgment should be entered for the plaintiff. The matter should be remitted to the District Court for the assessment of damages consistent with an apportionment of 20% for the appellant's contributory negligence. The appellant should have the costs of the trial and of the appeal. The respondent should have, if so qualified, a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal. McHugh JA Christopher Frances Matthews, the plaintiff in an action for damagesin the District Court of New South Wales, has appealed against an order dismissing his action. The action was heard by McGuire DCJ sitting without a jury. The plaintiff alleged that, while engaged in diving work for Riley Marine Constructions Pty Ltd (the defendant), he sustained injury on 26 August 1983 when he suffered an episode of decompression sickness. The plaintiff alleged that the defendant was negligent in that it failed to provide a safe system of work for him, failed to give him proper instructions concerning the manner of his ascent to the surface from a dive, and failed to provide him with the means by which he could measure the depths of the stages of his ascent. The plaintiff relied on his own evidence to prove the primary facts of his case although a fellow employee gave evidence which supported some aspects of his case. However, the learned judge accepted the evidence of Mr Peter Riley, the managing director of the defendant. Mr Riley asserted that the plaintiff had disobeyed instructions and had ascended straight to the surface without stopping at any of three directed depths. His Honour accepted that it was the sudden ascent to the surface by the plaintiff which accounted for his injury. The issues in the appeal are whether his Honour was correct in preferring Mr Riley's evidence to that of the plaintiff and alternatively whether the evidence of Mr Riley established negligence on the part of the defendant. The issue of credibility His Honour said that both the plaintiff and Mr Riley had given a "convincing version of events". However, his Honour said that he found "the Defendant's account to be more credible". I read his Honour's judgment as indicating that nothing in the demeanour of the witnesses inclined him to prefer one version of the facts to the other. I take his Honour to have used the words "more credible" in the sense of more probable. Accordingly, although I bear in mind what the High Court said in Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 at 844 concerning the findings of trial judges who make no express findings on credibility or demeanour, I think that this Court is entitled to examine the evidence and determine for itself which of the two accounts is the more probable. This Court is entitled to do so because his Honour did not rely on the advantage he had in observing the witnesses when he preferred the evidence of Mr Riley to that of the plaintiff. Before dealing with the submissions of the parties concerning which evidence should be accepted, it is necessary to refer to some facts which are common ground. The defendant had employed the plaintiff as a casual diver for approximately two years. There is little evidence as to the diving experience of the plaintiff either generally or while in the employment of the defendant. However, the evidence established that in the months of July and August 1983 the plaintiff had made thirteen dives at depths between 21 and 27 metres. Thus on 26 August 1983 10 UNREPORTED JUDGMENTS he was not without experience as a diver. On that day the defendant was engaged in carrying out work on behalf of Telecom Australia in connection with underwater cables. The work consisted in tying a nylon mattress of considerable size to cables on the bottom of Middle Harbour. The area in which the work was being carried out was marked by buoys in a rectangular area of 100m x 5Om. A six metre chain was connected to each buoy and the chain was secured by a rope to a concrete block on the harbour bottom. Between 9.44 am and 12.00 noon on 26 August the plaintiff made six dives. They were supervised by Mr Riley who was in continuous radio contact with the plaintiff. The depth of the dives was between 24 and 27 metres. The first dive took approximately fifteen minutes, the second dive a minute, the third and fourth dives two minutes and the fifth dive five minutes. On the sixth dive the plaintiff was to stay on the bottom for thirty five minutes. Because of the short time taken up by each of the first five dives, the plaintiff was involved in no danger in coming directly to the surface without stopping on the way up. But the cumulative length of the dives made it necessary that on the sixth dive he should come to the surface in stages to avoid decompression sickness or, as it is popularly known, "the bends". A staged ascent is necessary because as a diver goes deeper, the pressure increases and the body soaks up the nitrogen component in the air which he breathes. As the diver leaves the depths and ascends, time must elapse to allow the absorbed nitrogen to be excreted through the lungs. If this is not done, bubbling tends to occur in the tissues of the body and causes a neurological condition with a variety of symptoms. Both the plaintiff and Mr Riley were aware of the dangers of decompression sickness and the necessity to make stops in the course of the ascent from the sixth dive. The disputed evidence The plaintiff's account The plaintiff said that at the expiration of the time for the sixth dive Mr Riley told him to "leave the bottom". He asked Mr Riley whether he would use the cage which was suspended in the water by a rope or cable attached to the boat. The cage was used by a diver who had to make decompression stops. The plaintiff claimed that Mr Riley told him to go up a buoy rope and to stop at nine metres. He asserted that there were no markings on the buoy ropes to assist him in determining where the nine metre mark was. He said that he stopped at the point he thought was the nine metre mark. After a period he felt a sharp pain in his right shoulder joint. He informed Mr Riley who told him to continue with the decompression schedule. Mr Riley also said that he was bringing the boat and cage over to him. When the boat moved over, he noticed the cage was one to two metres below him. The inference to be drawn from this evidence of the plaintiff is that he had ascended higher than nine metres. The plaintiff said that he then got into the cage. When it was hauled up to the six metre level, he started to feel twinges in his knee joint. When the cage was taken up to the three metre mark the knee pains became worse. When his decompression time was finished, he got out of the cage and swam the last three metres to the surface. At that stage his knees were feeling worse and he was dizzy. He informed Mr Riley who instructed him to go back to the three metres depth. When he was again brought to the boat, his knees were a little bit worse but he was no longer dizzy. Oxygen was given to him. Later he was taken to the decompression unit at HMAS Penguin. URJ MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (McHugh JA) 11 Mr Riley's account Mr Riley gave evidence that he had planned the number and duration of the dives of the plaintiff. He had also planned that, before the plaintiff came to the surface on his final dive, he would have to stop at nine metres, six metres and three metres for various periods. These decompression stops were worked out An accordance with Tables issued by the Royal Australian Navy. Before the last dive had taken place, Mr Riley said that he informed the plaintiff that he wanted him to go down and secure the mattress to the perimeter wire and anchor block. He told him that his remaining dive time was thirty five minutes on the bottom. He said to the plaintiff that this "will then give you 5 minutes at 9 metres, 5 minutes at 6 metres and 20 minutes at 3 metres". Mr Riley asserted that the buoy chains and ropes were marked with rope at three, six and nine metres. He himself had used the markings. Mr Riley said that three minutes, two minutes and one minute before the thirty five minute period of the sixth dive expired, he informed the plaintiff of the time left and that with ten seconds to go he started a countdown. At the end of the thirty five minutes he told the plaintiff to leave "the bottom now". The plaintiff acknowledged the instruction. After a minute, Mr Riley said that he became aware that the plaintiff was still on the bottom. He said to the plaintiff, "Chris, leave the bottom now"; the plaintiff replied, "Roger, leaving now". Mr Riley then referred to a manual to calculate new decompression times because the plaintiff had overstayed his time on the bottom. As he was reading the manual, the plaintiff came to the surface. Mr Riley asserted that the plaintiff surfaced on the starboard side of the boat and that he said to him, "Chris, go back down". The plaintiff went back down. The cage was then moved over to the plaintiff at the nine metre depth. The plaintiff and Mr Riley were in radio contact. Mr Riley increased the time for the plaintiff to stay at the nine metre depth to ten minutes. After a few minutes the plaintiff mentioned that he had a pain in his shoulder which he thought might be a muscular complaint. The plaintiff was then decompressed at the six metre mark for a ten minute period. The plaintiff had no other complaints at that stage. Mr Riley then held him at the three metre mark for twenty seven minutes. During this period the plaintiff said that he thought that his shoulder problem was muscular. Mr Riley then instructed him to come to the surface. When the plaintiff came on board, he said that he felt dizzy. Mr Riley placed him on oxygen for five to ten minutes. He then decided to put the plaintiff back in the water at the three metre depth for a further ten minutes. When the plaintiff came to the surface, he said he had some "niggles" in his knees. Mr Riley then had the plaintiff conveyed to the decompression unit at HMAS Penguin. Mr Riley's evidence should be accepted The plaintiff submitted that his Honour erred in finding that Mr Riley's account was the more credible version of the two accounts. The plaintiff submitted that his Honour had overlooked three matters. First, Mr Riley conceded that at no time had he criticized the plaintiff for disobeying his instruction and coming directly to the surface. Secondly, Mr Riley had prepared a document for HMAS Penguin profiling the six dives of the plaintiff, but the document had made no reference to the plaintiff coming directly to the surface on the sixth dive. Thirdly, a fellow employee, Mr Briggs, gave evidence that the plaintiff had come to the surface only once. 12 UNREPORTED JUDGMENTS These matters are entitled to weight. But an explanation exists in respect of each of them. Moreover, their persuasive force is outweighed in my opinion by matters in the defendant's case to which I will later refer. Mr Riley explained his lack of criticism of the plaintiff on the ground that he did not believe in abusing people and that the plaintiff knew he had done the wrong thing. He explained his failure to inform the "people at Penguin" of the plaintiff coming directly to the surface on the sixth dive on the ground that he assumed that the plaintiff and the person who took him to HMAS Penguin would give "a detailed briefing of what happened". Finally, the evidence of Mr Briggs, is not necessarily inconsistent with Mr Riley's evidence. Mr Riley said that when the plaintiff came straight to the surface he was on the starboard side of the vessel. Mr Briggs said that, when the plaintiff came to the surface and got on the boat, he was on the port side. Mr Riley was not asked on which side of the boat the plaintiff surfaced on the final occasion after he was sent back down. It is quite possible that Mr Briggs simply failed to see the plaintiff come up on the starboard side on the first occasion of which Mr Riley spoke. However, the probabilities are in favour of Mr Riley's version. If the plaintiff's account is correct, his decompression sickness must have been brought about either by him rising one or two metres higher than the nine metre mark or because of the duration of the six dives. But it seems unlikely that the first matter would have brought on the onset of his decompression sickness. There was no evidence that being raised to seven or eight metres instead of nine metres would cause the illness. There was, however, evidence which supported the duration theory. The plaintiff called a medical expert, Dr Anderson, who said in answer to a leading question that in his opinion "for safety's sake the sixth dive should not have been done". In other parts of his evidence, Dr Anderson said: ...this particular series of dives, it is a whole load of short dives done fairly rapidly one after the other. Now in the normal practice of adding up the aggregate time and calculating your decompression stops the planned decompression stops that were in fact planned would coincide with what we were doing in the Navy but the actual practice of doing a series of dives of this rapidity continually ascents and descents is one perhaps that we would not do. Q. And why would you not do it? A. The reason why we do not like rapid ascents and descents is that this type of dive carries a much higher incidence of decompression sickness than had the whole dive been conducted in one dive with a total aggregate time on the bottom followed by the ascent with the planned decompression stops. The doctor said he would not like to have seen "all these particular series of dives done", but that in any event an allowance should have been made in calculating the decompression stops either by having more stops and/or by longer periods of decompression at those stops. The basis of the doctor's opinion, however, seems open to doubt. The opinion was based on a document which contained a "profile" of the plaintiff's six dives. But the first five dives which totalled twenty five minutes were carried out over a period of approximately 100 minutes. They do not seem to constitute "rapid ascents and descents". Moreover, I think that Dr Anderson's evidence can not be used to support the duration theory. In his judgment, McGuire DCJ said, "I am not persuaded by the evidence of the Plaintiff's expert, Lieutenant Commander Anderson, that the sixth dive was a hazardous venture." His Honour made no express findings concerning the credibility of Dr Anderson. But the principle expressed in URJ MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (McHugh JA) 13 Brunskill's case makes it difficult to see how this Court can accept the evidence of Dr Anderson that the sixth dive was hazardous. On the other hand, Mr Riley's account gives a ready explanation for the onset of decompression sickness. On that account the plaintiff came straight to the surface without making any stops. Further, the nature of the instructions given to the plaintiff on that day and his direct ascents in the first five dives explain why he might have come straight to the surface on the sixth dive. The plaintiff had made five dives in which he came straight to the top. On Mr Riley's evidence the only instruction issued to the plaintiff to stop at the nine metre mark was given before he made the last dive. The plaintiff was on the bottom for thirty five minutes. He overstayed his time a further minute. He was instructed for a second time to "leave the bottom". It seems inherently likely that, having gotten into the habit of coming straight to the top and being under some pressure to leave the bottom because he had overstayed, the plaintiff inadvertently came to the surface without stopping. Like the learned District Court judge, I am of opinion that the Mr Riley's account is the more probable explanation of what occurred that day. Moreover, there is one other matter which throws doubt on the general reliability of the plaintiff's recollection. He conceded that Mr Riley was a person who took care to give instructions to his divers and who was concerned with safety matters. The plaintiff conceded that Mr Riley would not let him dive when he could not "equalise the pressure on my ears because I had a sinus blocked nose". Yet according to the plaintiff there were no markings at the nine metre, six metre and three metre depths, and Mr Riley left him to judge these depths without assistance and in the first instance without the cage. Mr Riley swore that not only were these markings there but that he and the other divers had used them. It seems more likely that the evidence of the plaintiff on this matter was incorrect rather than that Mr Riley invented the evidence about the existence and use of the markings. Accordingly, I am of opinion that the learned judge was correct in accepting the evidence of Mr Riley in preference to that of the plaintiff. Negligence However, the question arises as to whether Mr Riley's evidence establishes that the defendant was negligent. were the instructions given to the plaintiff to go to the nine metre mark adequate? Can the plaintiff rely on any inadequacy in Mr Riley's instructions? There appears to have been no specific issue at the trial as to whether Mr Riley at the conclusion of the sixth dive had given the plaintiff instructions to go to the nine metre mark. The plaintiff alleged that Mr Riley did give this instruction and that he had gone to the nine metre mark. On Mr Riley's evidence, however, the instruction to go to the nine metre mark was given before the plaintiff descended for the sixth dive. At the conclusion of the dive, he simply instructed the plaintiff to leave the bottom. Since at the trial the plaintiff did not seek to make a case of negligence based on the failure of Mr Riley to give an instruction to go to the nine metre mark when he instructed the plaintiff to leave the bottom, the plaintiff can not now rely on that lack of instruction if by any possibility the defendant could call further evidence which might alter the present evidence on the subject: Water Board v Moustakas (1988) 62 ALJR 209. In the circumstances of the case, I think that the plaintiff cannot rely on the lack of a further instruction to go to the nine metre mark because it is possible that the evidentiary position would have been changed if this issue had been litigated at the trial. If Mr Riley had been asked about the matter, he could have 14 UNREPORTED JUDGMENTS given at least three answers. First, he might have said that the reason he did not give the plaintiff any instruction to go to the nine metre depth when he told him to leave the bottom was because the plaintiff already knew that he had to do it. This would have raised the question of negligence. Secondly, it is possible that, if the point had been raised at the trial, Mr Riley might have said that he did in fact give that instruction at that time. It seems unlikely that this would have been the case. Mr Riley was asked: Q. What was the next thing said? A. 10, 9, 8, 7, 6, 5, 4, 3, 2, 1, leave the bottom now. Q. You counted down? A. I counted down. Q. When you said "Leave the bottom now" did he say anything? A. Roger. Q. Was anything else said between you and he while you were in radio contact with him under water? A. Not until about a minute or so later. Q. What was said a minute or so later? A. Well, I had observed that he had not left the bottom by the diver's hose. Q. How did you observe that? A. I can look out the cabin and see the attendant pulling up the hose. Q. What did you say? A. I said, "Chris, leave the bottom now" and he said "Roger, leaving now", then the hose started to come up. Q. What did you next hear or see? A. At that time I started referring back to my manual for the change of decompression because he overstayed his stop. Q. So you were reading your manual? A. I was reading the manual as he came to the surface. Q. Apart from the manual what did you see on the surface? A. Very shortly after I observed the diver's hat was on the surface. It is not easy to believe that, notwithstanding this evidence, Mr Riley would now assert that in addition to instructing the plaintiff to leave the bottom he also told him to go to the nine metre mark. Yet I do not think that it can be ruled out as a possibility. It is true that the probabilities point to no such direction being given. As I have pointed out, the most likely explanation of the plaintiff's illness is that he came direct to the surface because the instruction was over thirty six minutes old. But I do not think that the Court can be confident that Mr Riley might not have asserted, if asked, that he instructed the plaintiff to go to the nine metre mark when he told him to leave the bottom. The third answer that Mr Riley might have given was that he mentioned the need to go to the nine metre mark at some other time during the plaintiff's stay on the bottom on the last dive. This possibility also cannot be rejected. In these circumstances I am of opinion that as the defendant might have led evidence which would have changed the evidentiary picture, it is not open to the plaintiff to rely on an allegation that Mr Riley failed to instruct him to go to the nine metre mark when he told him to leave the bottom. Order The appeal should be dismissed with costs. Clarke JA In this matter I have had the advantage of reading the judgment of McHugh JA. I agree with his conclusion that the appellant has failed to demonstrate that the trial judge erred in accepting the evidence of the defendant's witness, Mr Riley. I would add the observation that once the trial judge accepted that the sudden ascent which Riley described accounted for the appellant's misfortune there was no basis for a finding that his episode of decompression sickness was caused simply by undertaking the sixth dive. URJ = MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (Clarke JA) 15 Whether or not, therefore, the evidence of Lt Cmdr Anderson to the effect that the sixth dive was dangerous was accepted could not have affected the outcome of the case. There simply was no basis for a conclusion that the illness was caused by undertaking the sixth dive. T also agree with McHugh JA that the appeal should not be upheld by reason of the suggested failure of Riley expressly to instruct the appellant immediately before he left the bottom as to the manner of his ascent. It seems clear to me that this issue was not litigated before McGuire DCJ and I am of the opinion that the case does not fall within that exceptional class in which an appellant is entitled to succeed in an appeal on an issue not litigated at the trial. It is true that the particulars of negligence originally relied upon were wide enough to enable the appellant to have raised this issue at the trial. Paragraph 4(c) of the statement of claim, which was one of the particulars of negligence, read as follows: (c) Failing to give the plaintiff proper instructions as to the time he was to spend at each stage of his return to the surface from his final dive. The plaintiff, however, did not support that particular in his evidence. He said that Riley instructed him to "leave the bottom and to proceed to the nine metres first decompression stop". In cross-examination it was put to him that he had come directly to the surface and had not stopped at decompression stages. He denied this saying that he had stopped at the nine metre mark in accordance with a direction which had been given to him by radio at the time he was told to leave the bottom. Accordingly, a finding that Riley had failed to give him explicit instructions to stop at the nine metre mark immediately before he commenced his ascent was totally inconsistent with his case. He contended that he was given that instruction and that he obeyed it. That does not mean, of course, that he could not rely on evidence of negligence which emerged from the defendant's case. In order, however, for him to do this it was necessary for him to raise the precise issue during the trial so that the respondent could deal with it. A perusal of the trial judge's reasons for judgment discloses that the appellant relied on three breaches by the respondent of the duty to take reasonable care. They were: (a) Requiring the appellant to dive on the sixth occasion; (b) Failing to provide the appellant with means accurately to determine the nine metre mark; and (c) Returning the appellant to the water when he complained of symptoms consistent with decompression sickness. According to the trial judge those were the only issues which confronted the respondent at the trial and there is nothing in the transcript of evidence, nor indeed the notice of appeal, to suggest that the issues were wider. The principles which should guide the court in determining whether to consider on appeal a point which had not been taken at the trial are well established and have recently been restated in Water Board v Moustakas, 62 ALJR 209. In that case the majority of the court said, at 211: More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.....In deciding 16 UNREPORTED JUDGMENTS whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised the particulars should be amended to reflect the actual conduct of the proceedings. It is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at trial, especially where a particular is equivocal. In this case an examination of the transcript of evidence and the reasons of judgment of the trial judge, which sets out the particulars of negligence relied upon at the trial, discloses that the point now in issue was not taken at trial. In these circumstances it is necessary to consider whether the tests enabling the point to be raised have been satisfied. It would, I apprehend, be a rare case in which an appeal court could be satisfied that all the facts relevant to the point sought to be taken for the first time on appeal had been established beyond controversy in the trial which concerned different issues. This, in my opinion, is not one of those cases in which I can be satisfied that all the facts have been established beyond controversy and I do not think that it is open to this court to allow the appeal on the new ground. It is true that Riley did say that he simply told the appellant to come to the surface but his attention was not directed at any stage to the appellant's statement that at the time he was instructed to come to the surface Riley told him to stop at nine metres. It may be that if his attention had been directed to that evidence he may have recalled that in fact he did give that instruction. In addition he gave evidence that he was in radio contact with the appellant during the whole of the time during which the appellant was working beneath the surface. He was not asked in examination, or in cross-examination, whether he had reminded the appellant of the schedule for his ascent during that time. It may be that, if asked, he would have said that he didn't but the simple fact is that the court does not know what his answer would have been. It is possible that if he had given evidence to that effect the chances that the trial judge would accept his evidence that the appellant ascended directly may have been less. That is because that judge may have thought it improbable that the appellant would have ascended directly to the surface if he had been warned immediately, or shortly, before leaving the bottom to remember his decompression stops. But that factor does not entitle this court to discount the possibility that that evidence might have been given by him. In addition other evidence might have been given as to reasons for any failure to give a warning immediately before the diver ascended or, alternatively, Lt Commander Anderson might have been cross-examined as to the practice which should have been followed. Of course this is speculation but it serves to demonstrate, in my opinion, that it is not open to conclude that all the facts, relevant to the new issue, had been established beyond controversy at the trial. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs (by majority). Counsel for the Appellant: RJ Desiatnik Solicitors for the Appellant: Bingham, Finlay and Turnell Counsel for the Respondent: PD Kennedy-Smith URJ = MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD (Clarke JA) 17 Solicitors for the Respondent: Government Insurance Office of New South Wales