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. At the trial, before Newman J, the plaintiff's case was that when he asked Mr Frey and Mrs Whittington to let him try water skiing they were reluctant, because the boat was getting low on fuel and they wanted to take it to where it could be refuelled, but agreed to let him have a limited number of tries. On each try he was towed for a little way and then had to let go of the rope. This included the last attempt. At this stage Mr Frey was driving the boat, Mrs Whittington was the observer and Miss Mallaby, who later married the plaintiff and was then his fiancee, was also in the boat. The plaintiff's description of what happened on this occasion after he took hold of the handles attached to the rope was: "... we took off again and the next thing I knew I was being dragged along. I raised my arm straight away. Then I realised I was under water and there was a terrific strain on my leg. My first thought was: Gee, this will bruise, and then I heard a crack and I realised my leg had broken. It seemed like quite a long time. 2 UNREPORTED JUDGMENTS Q. After you took off, what was it that you noticed? A. Well, I felt a sideways motion, so I immediately let go of the handles and then found myself being towed along under water. So even though I had let go of the handles, I continued to move. What was it that was moving you? Well, the rope was connected to my leg, just fractionally below the knee. Which leg was that? My right leg. . What do you mean it was connected to your leg? . Well, it had somehow become entangled around my right leg...... . For approximately how long were you being towed along in this manner that you can recall. A. Four to five seconds. Q. Did you notice something as this was happening? A. Well, I noticed a terrific strain on my leg. Q. Then eventually what happened? A. Some seconds after that I heard a crack and realised that it had broken." (Transcript at 10, 11, Appeal Book 23B 24E) Miss Mallaby gave evidence in the plaintiff's case. In chief, it was consistent with that of the plaintiff. Additionally, she had had experience herself of water skiing and was able to give the following evidence: "GROSS: Have you made observations during the period of your water skiing experience of the position of the rope and the visibility of the rope before the boat takes off? A. Yes. When the observer yells out 'Are you ready?' and the skier says, 'Yes' there is a period of slow acceleration until the rope is taut and visible and then a much faster acceleration to pull the skier out of the water. Q. When you say visible, you mean visible from where? A. From the boat and the skier himself. Q. When you say taut and visible, what do you mean? A. The rope is free from the skier to the boat. Q. What do you men by free, would you just explain that a little more? A. Elevated above the water. " (T at 57, AB 72J) In cross examination she was asked questions indicating what the defendants' case would be, and the following evidence emerged: "Q. When Sheryl asked if everything was all right to commence on this last run your husband said yes? A. Yes. Q. When that was said between the two of them you were watching, weren't you? A. Yes. Q. When you were watching you did not watch anything out of the ordinary or anything unusual, did you? A. No. Q. As far as you ere concerned it was all clear to commence this last final pull out of the water? A. Yes. Q. When the pull commenced it was exactly the same as the previous ones? A. Yes. Q. When the boat started to accelerate there was no difference? A. No." (T at 65,66; AB 80W-81F) OPOPO>O URJ SMITH v WHITTINGTON (Priestley JA) 3 Mrs Whittington's evidence both in chief and in the course of a thorough cross examination, was that the plaintiff had made three attempts to water ski behind the boat and that the same procedure was followed each time. This was that the plaintiff would first position himself in the water, standing on his left leg, his right foot strapped into the water ski and holding the handles at his end of the line attached to the boat; the boat would then take up the slack in the line and upon a signal being given would gradually accelerate. On each occasion the plaintiff failed to get into a balanced position on the ski. Mrs Whittington's evidence also was that on each occasion she had a clear view of the rope from the boat to the handles held by the plaintiff after the slack had been taken up before the signal to move off was given. The procedure which Mrs Whittington thus described was in accordance with what Miss Mallaby had said was the practice. Other evidence given in the plaintiff's case was to the same effect, namely that the procedure always adopted by those in control of a boat towing a water skier is that "of moving the boat slowly along until the rope is taut and visible above the water between the boat and the skier's hands..." (evidence of Mr G Barton, an experienced water skier, at T at 76, AB 90K). Mrs Whittington accepted that this procedure was correct (T at 103, AB 116N). It seems clear it was common ground at the trial that it was the duty of Mrs Whittington as observer to follow this practice. She said that she did follow it on each occasion; in regard to the plaintiff's final attempt she said: "T would not have said to Peter that it was right to go if I couldn't have had a clear vision of that rope." (T at 98, AB 111Q) Indeed, the main issue of fact between the plaintiff and Miss Mallaby on the one side and Mrs Whittington and other witnesses on the other was whether at the time when the final run was attempted, the rope had been taut and visible between the boat and the plaintiff or whether it had been partly submerged with sufficient slack in it for it to be coiled in the vicinity of the plaintiff so that when the boat started to tow him onto the dam his right leg became entangled in the rope, with the result that he was being towed by the leg rather than through his holding of the handles attached to his end of the rope. It was about this issue that the opposing cases turned at the trial. The plaintiff contended that he had been dragged by the rope around his right leg; it followed from this that the rope could not have been taut and visible to Mrs Whittington at the time when the signal was given to Mr Frey to commence the tow. For the defendants it was said that since Mrs Whittington had seen the rope extending from the boat to the handles held by the plaintiff, and that it was taut, it was impossible for him to have been dragged by the rope around his leg. If the plaintiff's case were accepted, he would succeed, at least against Mrs Whittington; if the defendant's case were accepted, then the plaintiff would have proved no negligence. The plaintiff's case necessarily involved the assertion that Mr Frey had started the tow before the rope was taut and visible and while it still had at least sufficient slack to permit coiling around the plaintiff. Newman J noted: "This was hotly denied by both Mrs Whittington and Frey, who claimed that the orthodox procedure was followed." (Judgment at 4, AB 304D) Newman J then proceeded to the following finding: 4 UNREPORTED JUDGMENTS "Tn this regard I prefer the evidence of the defendants. Both were experienced waterskiers. The likelihood of them following a foolhardy mode of dealing with an inexperienced (and disabled) skier seems to be very remote indeed. Accordingly I find, as a fact, the orthodox method of getting a skier into motion was followed here." (Jt at 4, AB 304F) In light of Mrs Whittington's evidence, and particularly the whole tenor of what she said in a very lengthy cross examination (see for example the passages in which her answer at T at 128, AB 41V occurs) the only way I can read the foregoing paragraph is that it is a statement by Newman J of his acceptance of Mrs Whittington's evidence that at the time when the tow began, she had seen the rope taut between the boat and the handles held by the plaintiff. This understanding of the paragraph seems to me to be required by the context of Newman J's reasons in which at this point he is explicitly stating the basic issue between the parties and making a direct finding on that issue in favour of the defendants. I reach this view of the paragraph independently of what Newman J said two paragraphs later, which was that in general he preferred the evidence given by Mrs Whittington and Mr Frey to that given by the plaintiff and his wife. In understanding this statement by his Honour it is relevant to bear in mind also that he thought the evidence given by all eye witnesses to the accident was in many ways unreliable, but also that all the witnesses were honourable people. The finding by Newman J that the orthodox method of getting a skier into motion was followed in the abortive tow in which the plaintiff was injured might have been expected, in view of the way the case was conducted, to have decided the cause in favour of the defendants. However, later in his reasons, his Honour made a further finding as follows: "As I have said I found the plaintiff to be an honourable man and while his recollection of the evidence in general is somewhat vague, his specific recollection of the rope being caught around his leg is a recollection of an event which one who experienced such an occurrence would be unlikely to forget. Accordingly, I find that the plaintiff did suffer a fractured leg when the tow rope became entwined around it when the final attempt to ski was made." (Jt at 6, AB 306R) Having made that finding, Newman J took the view that the question for him to determine was whether Mr Frey or Mrs Whittington were in breach of a duty of care to the plaintiff by not observing that the rope was likely to entwine itself around the plaintiff's leg once the boat was under way. On this, he held that there was no evidence that it was possible to see that the tow rope had been in a position of hazard prior to the last attempt. From that position, he continued: "Tt was common ground that the plaintiff was positioned in the water at the time when he gave the signal to proceed in the manner depicted in Exhibit E. I draw the inference that the rope must have been well under water at that time, in terms of its proximate position to the plaintiff's leg from the depiction and the description given by all eye witnesses. If there was a failure to make an observation that the rope was in a position where it could cause injury to the plaintiff during an attempt to ski, I find that failure was that of the plaintiff alone. The evidence adduced falls well short of persuading me, on a balance of probabilities, that either of them ought to have seen the rope in its proximity to the plaintiff's leg at the time when the plaintiff signalled to them that all was in readiness for him to make his last attempt to ski." (Jt at 12, AB 312V to Jt at 13, AB 313K) URJ SMITH v WHITTINGTON (Priestley JA) 5 Newman J then concluded that there had been no breach of duty by either Mr Frey or Mrs Whittington. (There was never any question of any case having been made out against Mr Whittington, the owner of the boat, who was not present when the accident happened.) He entered judgment for the defendants and the plaintiff appealed. The plaintiff's principal submission on appeal lost nothing by being short and simple. The submission was that it followed from the judge's acceptance of the plaintiff's account of his leg having been entangled with the rope that the rope could not have been taut and fully visible to Mrs Whittington at the time when the tow commenced; that it was common ground that she had been watching at that time and that it was her duty to see to it that the tow did not commence until the rope was taut and visible; and that therefore she was in breach of duty. The problem with this argument is that it necessarily involves rejection of Mrs Whittington's evidence of the rope having been taut and visible at the relevant time. Not only did Newman J make no finding to this effect, for reasons I have indicated earlier the paragraph from his reasons which ended with his finding as a fact that the orthodox method of getting a skier into motion was followed (see at 6 above), in my opinion embodies intentional acceptance by him of Mrs Whittington's contrary evidence on the point. There seem to me to be only two possible explanations of the apparent inconsistency. One is that the trial judge did not notice that he had made findings in different parts of his reasons which could not be reconciled, or that contrary to the view have already expressed, notwithstanding his general acceptance of Mrs Whittington and his finding that the orthodox method was used on the last attempted run, he had in mind that the orthodox method had not been used on that occasion and Mrs Whittington had either not been watching or had seen that the rope was not taut and visible between boat and plaintiff, and in either case had negligently failed to make known to Mr Frey that it was too soon for him to start the tow. On my reading of the materials, the probabilities seem to me to indicate very strongly that the first of the above possibilities represents what actually happened. I cannot fit what is explicitly stated in the reasons with the second possibility. Counsel for the defendants contended that there was a third possible explanation which the court should accept, that the position had been that at the time when the tow began the plaintiff had been holding the rope handles, that the rope was not then stretching forwards towards the boat but down coiling around the plaintiff under water, but surfacing not very far in front of the plaintiff and thus being visible and apparently taut from that point to the boat; such a position, it was submitted, was consistent with his Honour's finding about the orthodox procedure having been adopted. The different positions for which the parties were contending at the trial did not include this possibility, which was therefore never explored. In any event, it seems to me to be inconsistent with my understanding of his Honour's factual findings. It further seems to me to be inconsistent with the physical facts of the situation as illustrated by the Exhibit E which Newman J referred to in and also attached as an appendix to his reasons. Counsel for the defendants, confessing that his was the hand which had drawn Exhibit E, asserted it could not be regarded as sufficiently accurate to base any conclusions on: however, he had 6 UNREPORTED JUDGMENTS obtained from the plaintiff in cross examination the plaintiff's agreement that the sketch showed the plaintiff's position at the commencement of the tow with reasonable accuracy. On my view of the structure of the trial judge's reasons, they contained inconsistent findings of fact, one of which would lead to judgment for the plaintiff, the other judgment for the defendants. The inconsistency was not resolved by the trial judge and I do not see any way in which this court can resolve it, because each finding was based on demeanour and the judge's view of credibility of witnesses, and there are no facts standing independent of credibility assessment which justify preferring either of the findings of fact to the other. In my opinion the judgment entered by Newman J cannot stand, because the finding about the entanglement of the plaintiff's foot with the rope is, in the circumstances of the case, inconsistent with it. The judgment could only be left undisturbed if the court, as defendants' counsel said we should, reversed the judge's entanglement finding. It was submitted there was a powerful factual case for doing this. However I do not think the court should reverse the finding below, based as it is directly on the judge's considered observation of a witness whom this court has not seen. The court cannot enter judgment for the plaintiff either, because it would contradict the judge's other factual finding, in the defendants' favour. In the circumstances I can see no alternative to a new trial. The orders I propose are: 1. Judgment set aside, 2. New trial to be had; 3. Defendants to bear plaintiff's costs of appeal, and to have a Suitor's Fund Certificate; 4. Costs of the first trial to follow the event of the new trial. Handley JA I agree with Priestley JA. Cripps JA I agree with Priestley JA. 1. Judgment set aside; 2. New trial to be had; 3. Defendants to bear plaintiff's costs of appeal, and to have a Suitor's Fund Certificate; 4. Costs of the first trial to follow the event of the new trial. Counsel for the Appellant: B GROSS QC, P SEMMLER QC, T BOYD QC Solicitors for the Appellant: MATHEWS WILLIAMS, FORBES Counsel for the Respondent: J POULOS QC, JS GLEESON Solicitors for the Respondent: ABBOTT TOUT RUSSELL KENNEDY