MOORE v WOODFORTH [2003] NSWCA 9

Reported Decision : (2003) Aust Torts Reports 81-686

New South Wales Court of Appeal

CITATION : MOORE v WOODFORTH [2003] NSWCA 9 HEARING DATE(S) : 2, 3, 4 December 2002 JUDGMENT DATE : 6 February 2003

JUDGMENT OF : Mason P at 1; Meagher JA at 114; Heydon JA at 115 DECISION : See par 113

CATCHWORDS : Negligence - snorkeller hit by motorboat - contributory negligence - volenti non fit injuria - lost earning capacity (ND) PARTIES : RODERICK MOORE v REECE WOODFORTH FILE NUMBER(S) : CA 40111/2002 COUNSEL : Appellant: F McAlary QC/ S McCarthy Respondent: J Sharpe SOLICITORS : Appellant: Benjamin & Khoury Respondent: Ebsworth & Ebsworth

LOWER COURT District Court JURISDICTION : LOWER COURT DC 3137/2000 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40111/02

MASON P MEAGHER JA HEYDON JA

Thursday 6 February 2003

Robert Allan MOORE v Reece Gordon WOODFORTH JUDGMENT 1 MASON P: On 3 January 1998 the appellant was injured when struck by the propeller of a motor boat owned and driven by the respondent. The appellant was snorkelling in the Swansea Channel at the entrance to Lake Macquarie. 2 The appellant was partially successful in the District Court. The respondent was found to have been negligent. A defence of volenti non fit injuria was rejected, but damages were reduced by 40% for contributory negligence. General damages were assessed at $150,000 and various items of special damages were agreed or assessed, making a total verdict of $216,570. 3 In his cross appeal the respondent challenges (1) the finding of negligence and (2) the rejection of the defence of volenti non fit injuria. 4 In his appeal the appellant challenges (1) the finding of contributory negligence and some of the specific findings upon which it was based, (2) the assessment of general damages and (3) the assessment of damages for economic loss. 5 The following extract from the reasons of Sorby DCJ sets the scene for the contested issues in the appeal: The plaintiff was dressed in a half-wetsuit, goggles and a snorkel. He had a weight belt strapped to his body and was wearing a pair of fins. Fins, snorkel and goggles of a similar type were in evidence. Attached to the plaintiff's weight belt was a 10 metre length of orange nylon rope. At the end of the rope was a white plastic buoy about 8"-10" in diameter. Attached to the buoy in addition to the orange cord was a piece of "S" shaped wire on which speared fish were attached if caught. The plaintiff carried a hand spear with a rubber sling used to propel the spear towards the fish. The entrance to the Swansea Channel, as depicted on the map (PX1) is borded at its entrance by two breakwalls – one at Blacksmith's Point (north) and one at Reid Mistakes Head (south), the latter known as Lucy's Breakwall. Tucked around the corner and directly south of Lucy's Breakwall is a small beach unnamed on the map, but known colloquially as "Stinky's Beach". It was at this beach that the plaintiff first entered the sea for the purpose of looking for fish to spear and "snorkelling, swimming and having a good time" (T30). He outlined his approximate course off the beach on the map that was tendered. The plaintiff was accompanied by a longtime friend Mr J "Blackie" Blackman. Neither the plaintiff nor Mr Blackman caught any fish off the beach or near the breakwater. After a period in the water both men found themselves around the end of Lucy's Breakwall and in the Swansea Channel. It was the evidence of the plaintiff that he was taken around the end of the Breakwall by the current (T30). Mr Blackman said that he "came down by the breakwall" having been "sucked in by the tide" although it is accepted that at this time of that particular day in 1998 the tide was on the ebb. There was a discussion between the men and Mr Blackman decided to get out by swimming along the breakwall, occasionally diving for fisherman's lures, before finding a break among the fishermen on the seawall (T491). Mr Blackman said that he and the plaintiff swam along the wall, although the plaintiff was 20 metres further out as he "did not like to be too close to the wall" because of the fishermen who "throw things at you". After Mr Blackman left the sea he did not see the plaintiff again until he saw the plaintiff in an injured state at the RSL Club on the south-western corner of the Channel. Another relevant feature of the Channel was the location of marker buoys along the northern and southern entrance to the Channel. The buoys on the southern side of the Channel are relevant in this case, in particular the second buoy located directly opposite the Coast Guard base (PX1 and PX4). It is the location of the plaintiff, in relation to this buoy that is one of the key questions that I have to determine in this matter. The accident It was the plaintiff's evidence that he was face down in the water near the second marker buoy, which I identified earlier, but on its southern or land side (T141), when he heard the sound of a boat engine. He lifted his head and saw what turned out to be the defendant's boat – a 6.8 metre cabin runabout – heading straight towards him somewhere between 30-50 metres away. He said 50 metres in the witness box but 30-40 metres in documentary evidence (DX2). He said the boat was raised "very high" in the water when he first saw it but came down "onto the plane" just before he was hit (T142). By "on the plane" as I understand it, it was meant that even though the boat is at speed, the boat body is more or less parallel to the sea (DX13). The speed of the boat, it is common evidence, was 12-15 knots. As the boat approached him, the plaintiff decided to dive under the boat and as he did so he felt a "thump". On surfacing he realised that he had been hit by the boat's propeller and suffered severe injury to his right and left legs and feet, particularly the right foot. 6 I shall hereafter refer to the appellant as the plaintiff and the respondent/cross appellant as the defendant.