SMITH v WHITTINGTON [1993] NSWCA 248

SMITH v WHITTINGTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and Cripps JJA 10 February 1993, 18 February 1993

[1993] NSWCA 248

WATER SKIING ACCIDENT — plaintiff claims accident caused by driver of boat starting tow before tow rope taut and clear of water and so becoming entangled with plaintiff's right leg — conflict of evidence at trial — trial judge makes inconsistent findings of fact — one finding basic to case of plaintiff inconsistent with judgment for defendants — another finding basic to defendants' case and inconsistent with judgment for plaintiff — both findings based on demeanour and credibility — no way of resolving conflict on appeal — new trial necessary.

Priestley JA Mr N Smith brought proceedings as plaintiff in the Supreme Court seeking damages for injuries he suffered to his right leg in a water skiing accident on 27 January 1986 at Wyangala Dam. The defendants to the proceedings were Mr T Whittington who owned the boat towing the plaintiff when he was injured, Mrs Sheryl Whittington, who had been in the boat at the time, and Mr Peter Frey, who had been driving the boat.

The plaintiff had not water skied before 27 January 1986. When he asked to try it, Mrs Whittington and Mr Frey gave him some instruction about how to do it, and he made some unsuccessful attempts during the last of which he was injured. Because of a disability to his left leg, the attempts he made were by using his right leg and one ski only. He had previously skied on snow in this way.

The plaintiff claimed that the defendants had been negligent: in the way they had instructed him how to go about water skiing; in failing to ensure when he made his last attempt that the ski rope was taut so that it could not wrap around his leg prior to commencement of skiing; and in failing to keep a proper lookout. The latter two of these were the particulars of negligence relied on at the trial; the first, and some other particulars given, including breaches of statutory duty imposed by certain of the Water Traffic Regulations, were not pursued as the case developed.