Barrett v Lets Go Adventures Pty Ltd

Evidence independent of the parties' recollections

1. Some parts of the circumstances of the dive were recorded contemporaneously: 1. The GoPro camera worn by Mr Moore filmed most of the events which took place underwater. In addition, some areas of the boat, such as the cabin, may be seen on the GoPro footage. This is relevant to the issue of whether there was additional oxygen on the boat, as well as to the conduct of the plaintiff and Mr Moore while they were in the water. 2. Mr Moore, who was too ill to be cross-examined, made a statement which was tendered by the defendant. Its correctness has been adopted by the plaintiff. That statement was prepared for Mr Moore with the assistance of a solicitor (who was not, I was informed, the defendant's solicitor). 3. The plaintiff made a report of the diving incident to the appropriate authorities, the Professional Association of Diving Instructors ("PADI") two days after these events. The defendant did not make any report or contemporaneous note of these events. 4. The hospital notes in relation to Mr Moore's treatment contain information about what occurred. However, the need for caution in relation to the use of such information is well-recognised: Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [55] - [57]; Mason v Demasi [2009] NSWCA 227 at [2].
2. I shall first set out how the parties have pleaded their respective cases.

The structure of the plaintiff's claim

1. The plaintiff relies upon The Australian Consumer Law as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("ACL"), as informed by the Civil Liability Act 2002 (NSW) ("Civil Liability Act") (as to the interaction of which in proceedings of this kind, see Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583 at [46], [144] and [50]).
2. The ACL claim may be summarised as follows: 1. Is the plaintiff a consumer within the terms of s 3 of the ACL? The plaintiff's submits that this issue was conceded by the defendant's principal Emma Challen at T 425-426 and can be demonstrated to be the case by the payment invoice, in that the plaintiff was receiving what amounted to a discount. The defendant argues that the plaintiff was not a "consumer" as the services in question were provided not to him but to Charlestown Dive Academy. Alternatively, the defendant asserts that the plaintiff was not on the boat as a "consumer", but within the scope of his employment when he was acting for the commercial advantage of his employer and in circumstances where he had been permitted to enter the boat without charge. 2. If the plaintiff is a consumer, did the defendant breach s 60 or s 61 of the ACL? As is set out below, the plaintiff's case is that the services were not provided with due care and skill with particular regard to the following: 1. Mr Shorter directed Mr Moore to continue the dive in circumstances where this was a breach of duty of care (T 349 and 469). 2. The defendant allowed the dive to go ahead without sufficient oxygen on the boat and failed to provide and/or give sufficient oxygen for two divers by reason of the fact that there was insufficient oxygen on the boat (see particulars 12(a) and 12(b) of the statement of claim). 3. The plaintiff asserts that there was no "D cylinder" present (T 197) and relies upon expert evidence to the effect that even if it had been present the supply of oxygen on the boat was not sufficient (T 335-336). 4. Other particulars in the statement of claim (an excessive number of consumers, insufficient personnel and failure to comply with diving codes and manuals: see particulars (b) - (f) in the statement of claim) were referred to in passing but were not the subject of submissions, although the diving manuals were referred to by the plaintiff.
3. The defendant says, in response, that the oxygen was available for use, that the plaintiff was provided with oxygen (albeit a 50% Nitrox pony bottle), that he did not display any symptoms or seek additional first aid at the time, that the medical oxygen available did not run out at any time and that the plaintiff failed to use what was available to him.

The interaction of the ACL claim with the Civil Liability Act

1. Counsel for both parties referred me to Motorcycling Events Group Australia Pty Ltd v Kelly where the plaintiff, who was injured while motorcycling at the defendant's premises, brought a claim very similar in content and structure to these proceedings. The trial judge and the parties proceeded on the basis that it was not necessary to make findings under the Civil Liability Act and defences under this legislation were not dealt with at trial.
2. On appeal, Meagher JA (with whom the other members of the court agreed) started by noting (at [56]) the correct approach to claims of the kind brought by Mr Kelly and by the plaintiff in these proceedings: "[48] This appeal is primarily concerned with whether s 74(2A) of the Trade Practices Act 1974 (Cth) picked up and applied, as a surrogate federal law, provisions of the Civil Liability Act 2002 (NSW), in particular s 5M (no duty of care for recreational activity where risk warning) to the contract between the appellant and Mr Kelly. … [55] The appellant relied, by way of defence, upon certain provisions of the Civil Liability Act to assert that it had no liability to Mr Kelly by reason of s 5I (materialisation of inherent risk) and s 5L (obvious risks of dangerous recreational activities), and that it did not owe a duty of care to Mr Kelly by reason of s 5M (recreational activity where risk warning). [56] No attention appears to have been given by the parties at trial to the basis upon which these provisions of the Civil Liability Act were applicable to Mr Kelly's contract claim, although the primary judge did refer (at [26]) to s 74(2A) of the Trade Practices Act in the context of noting that s 5N was inapplicable."
3. Meagher JA then set out how the Court of Appeal proposed to reconsider these issues: "[65] Although the primary judge referred (at [11]) to the appellant's reliance on various provisions of the Civil Liability Act, he did not go on to consider the application of these provisions as a defence to the respondent's claim; in particular, the "risk warning" defence raised under s 5M. This appears to be a consequence of the primary judge only considering the contract claim and not considering that s 5M might apply to such a claim. … [79] The investment of the District Court with federal jurisdiction, enlivened ss 79 and 80 of the Judiciary Act. The operation of these provisions with respect to various provisions of the Civil Liability Act, is considered below."
4. Meagher JA then considered each of the relevant sections of the Civil Liability Act, which in those proceedings included ss 5K and 5M, and went on to explain, referring to Insight Vacations Pty Ltd v Young (2011) 243 CLR 149, how these provisions should be applied to a claim made under the ACL where the District Court was determining a claim for personal injury. Section 5M was limited to tortious liability and thus was not relevant, whereas s 5K needed to be read in the more inclusive terms of the definition under the ACL (at [127]).
5. Meagher JA went on to explain: "[140] The appellant's written submissions contended that s 5B of the Civil Liability Act applied by virtue of s 74(2A) of the Trade Practices Act. However, during the course of oral argument, the appellant accepted that s 74(2A) did not pick up s 5B, as the latter was a state law which applies in determining breach, not a law that limits or preludes liability for breach: AT, tcpt 28, lines 15-31. As explained below, this concession was properly made. This concession led the appellant to rely on s 39(2) of the Judiciary Act, which was raised by a member of the court during oral argument. The unstated premise of the appellant's reliance on s 39(2), is that the District Court was exercising federal jurisdiction (which is correct), and that s 5B was picked up by operation of s 79 or s 80 of the Judiciary Act. The latter argument is considered below."
6. This "latter argument" is summarised as follows: "[148] It may be accepted that the "General principles" in s 5B of the Civil Liability Act (as well as the "Other principles" in s 5C) modify the common law in regard to claims for damages for harm resulting from "negligence", that is, the failure to exercise reasonable care and skill, to which Pt 1A of the Act applies, whether the claim is framed in contract, tort, statute or otherwise: s 5A(1) of the Civil Liability Act. [149] The question which arises is can it be said that the Civil Liability Act, in particular ss 5B and 5C, as part of the "statute law in force in the State … in which the court in which the jurisdiction is exercised", is "not applicable" to the case brought by the respondent by the laws of the Commonwealth, in particular, the Trade Practices Act? In my view, this question should be answered in the negative. This is because, as explained above, the Trade Practices Act does not provide a code as to the standard of conduct required to discharge the implied warranty of due care and skill. Further, the s 5B requirements, and the other principles in s 5C, are not inconsistent with the implied warranty in s 74(1) of the Trade Practices Act. [150] I conclude that s 80 of the Judiciary Act does pick up and apply s 5B (as well as s 5C) to the respondent's claim for damages for breach of the implied warranty in s 74 of the Trade Practices Act. On this basis, it is unnecessary to proceed to the next step of considering s 79 of the Judiciary Act."
7. Although the primary judge had not applied s 5B, the findings of fact were sufficiently well founded to be upheld so that, notwithstanding the error in failing to apply s 5B, the appeal was dismissed.
8. I have set this out in full because counsel for the plaintiff provided me with the first instance judgment and both counsel urged me to follow it. The correct path is, however, that which is set out in the decision of the New South Wales Court of Appeal.
9. The provisions of the Civil Liability Act relied upon by the defendant are: 1. Sections 5R and 5S (contributory negligence); 2. Sections 5G and 5H (obvious risk); 3. Section 5I (inherent risk); 4. Section 5L (dangerous recreational activity); 5. Section 5M (risk warning); 6. Section 5N (waiver, release and indemnity).
10. Two aspects of these defences should be noted. First, in paragraph 8 of his outline of submissions, Mr Reynolds raises the issue of whether the defendant can rely upon the statutory defences within the Civil Liability Act. However, he addressed this on the basis of whether these defences were factually made out, rather than on the principles set out by Meagher JA. Second, it was never entirely clear which of the above list of legislative provisions were in fact the defences moved on by the defendant so, for the avoidance of doubt, I have dealt with all of them.
11. The next relevant feature in relation to the Civil Liability Act is that the plaintiff is pleaded, under s 56 of that Act, to be a "Good Samaritan" (paragraph 12(h) of the Amended Statement of Claim).

The "Good Samaritan" provisions in the Civil Liability Act

1. "Good Samaritan" legislation provides legal protection to a person who gives reasonable assistance to a person who appears to be, or is, injured or in danger, generally in circumstances of emergency. The legislation is designed to protect persons who intervene at risk to themselves. The term "good Samaritan" is taken from Luke 10: 25 - 37, where the parable of the injured man ignored by his fellows but helped by a despised foreigner is set out.
2. Part 8 of the Civil Liability Act (which is headed "GOOD SAMARITANS" in capital letters), introduced legislation of a novel kind, contrary to the recommendations of the Review of the Law of Negligence: Final Report (2002). At p 108 of this report (often referred to as "The Ipp Report") the committee members stated that additional "good Samaritan" legislation was unnecessary as such persons were already adequately protected, all Australian States and Territories have in fact enacted such legislation (see Dr Michael Eburn, "Liability of volunteers and good Samaritans: making it safe to volunteer or restricting claims for damage?", (2010) 7(2) CL 14).
3. The relevant provisions are ss 56 - 58, which refer to "good samaritans" in lower case and as a generic term, but I have adopted the more common non-legal spelling "good Samaritan". Those provisions are as follows: "Section 56: Who is a good samaritan For the purposes of this Part, a "good samaritan" is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured. Section 57: Protection of good samaritans (1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured. (2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good samaritan. Section 58: Exclusion from protection (1) The protection from personal liability conferred by this Part does not apply if it is the good samaritan's intentional or negligent act or omission that caused the injury or risk of injury in respect of which the good samaritan first comes to the assistance of the person. (2) The protection from personal liability conferred by this Part in respect of an act or omission does not apply if: (a) the ability of the good samaritan to exercise reasonable care and skill was significantly impaired by reason of the good samaritan being under the influence of alcohol or a drug voluntarily consumed (whether or not it was consumed for medication), and (b) the good samaritan failed to exercise reasonable care and skill in connection with the act or omission. (3) This Part does not confer protection from personal liability on a person in respect of any act or omission done or made while the person is impersonating a health care or emergency services worker or a police officer or is otherwise falsely representing that the person has skills or expertise in connection with the rendering of emergency assistance."
4. There have been few cases acknowledging the nature and extent of these provisions or their interaction with the Civil Liability Act, let alone the ACL. The manner in which such a defence should be pleaded is unclear; the plaintiff has included it in the statement of claim, but it may be more appropriate to plead it by way of Reply.
5. In the present case (notwithstanding earlier opposition to the lateness of this pleading), the defendant concedes that the actions of the plaintiff in rescuing Mr Moore as seen in the GoPro evidence (Exhibit A-1A) mean that the plaintiff "may have been a Good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive" (written submissions, paragraph 7). However, the defendant's submission is that the plaintiff ceased to be a good Samaritan thereafter, as Mr Moore was being cared for by the defendant's servants or agents who were providing him with medical oxygen.
6. If the plaintiff is a "good Samaritan" (as to which see ss 56 and 57 of the Civil Liability Act), this may prevent a finding of contributory negligence or indeed a complete answer to the other defences in the Act. The precise extent of this argument tended to ebb and flow in the course of the hearing and to err on the side of caution I have first considered each of the statutory provisions in the Civil Liability Act set out in the defence on its merits and then made alternative findings in relation to the "good Samaritan" legislation.
7. The next issue is to determine at what stage, and how, to deal with issues of identification of duty of care as set out in s 5B Civil Liability Act, as the requirements for a precise definition of this duty have required greater specificity in judgments of the New South Wales Court of Appeal since Motorcycling Events Group Australia Pty Ltd v Kelly was handed down.

Identification of the duty of care

1. In a complex factual case such as the present, it is important to identify the duty of care in relation to the Civil Liability Act provisions as early as possible. The defendant submits that its duty of care was "to take reasonable care for the safety of the plaintiff" (outline of submissions, paragraph 5) but that this duty did not extend to instructing, compelling or requiring the plaintiff to use the medical oxygen that he knew was available on the vessel. The defendant's duty did not extend to doing more than informing the plaintiff that there was medical oxygen on board the vessel, and to making it available to him.
2. The plaintiff submits that this definition of duty of care is so broad as to be meaningless and refers me to the discussion and definition of duty of care by the New South Wales Court of Appeal in Motorcycling Events Group Australia Pty Ltd v Kelly at [4], [34], [46], [151]-[154] and [156]-[158]. The defendant's servants or agents were specially trained to assist in the oxygen-related emergencies that were such a risk in a hazardous sport such as diving, and the duty of care they owed to their passengers was not merely to have the equipment on board and inform the plaintiff that they had it (neither of which the plaintiff said they did) but to be alert to the risks that they had been trained to recognise and to take reasonable care for the safety of the plaintiff by applying that knowledge to the facts in this case.

Causation, mitigation and s 151Z Workers Compensation Act 1987 (NSW)

1. The principal issue in relation to damages is whether the asserted breaches of duty by the defendant have caused decompression illness and/or a series of claimed injuries which are set out below. 1. If the defendant did breach its duty of care, was that breach causative of injury and loss to the plaintiff? 2. As noted above, the defendant relies on ss 5R and 5S in relation to contributory negligence. The defendant also pleads a failure to mitigate arising from the plaintiff not self-administering the pure oxygen the defendant claims was on the boat and/or not seeking treatment earlier. 3. The defendant also relies upon s 151Z Workers Compensation Act 1987 (NSW). The question is whether the plaintiff's presence on the vessel was within the scope of his employment and, if so, was the employer negligent in its training and care for the plaintiff and if so, the contribution or percentage to be attributed to any such finding.

Particulars of beach of statutory duty and/or negligence

1. The particulars of breach of statutory duty and/or negligence pleaded in paragraph 12 of the Amended Statement of Claim are as follows: 1. By the defendant's servants and/or agents, allowing the dive to proceed when they were not equipped with at least two sources of pure oxygen therapy, alternatively, failing to provide a sufficient source of pure oxygen therapy for the journey and the number of divers involved in the dive. 2. By the defendant's servants and/or agents, failing to supply the services with due care and skill, insofar as the servants of the defendant failed to supply sufficient sources and supply of pure oxygen therapy for the services provided. 3. By the defendant's servants and/or agents, carrying out the services in such a manner as to cause the plaintiff to be at risk of untreated decompression sickness, likely to lead to the plaintiff suffering severe injury. 4. By the defendant, its servants and/or agents, allowing the services to be provided with an excessive number of consumers, thereby causing compromise of the defendant's servant's ability to manage, control and ameliorate the risk of decompression sickness. 5. By the defendant, its servants and/or agents, failing to provide sufficient personnel and devices on the vessel, to effect a rescue or recovery of a diver, such failure requiring the plaintiff to excessively exert himself in rendering assistance from the water. 6. By the defendant's servants and/or agents, failing to comply with the provisions of the Occupational Diving Operations Australian Standards AS/NZ 2299.3:2003, such failure evidence of the defendant's breach of statutory and common law duties owed to the plaintiff, or such other codes and manual that inform the duty and standard of care for recreational diving tour operation. 7. The plaintiff repeats the allegations in paragraph 12(a)-(f) above and states the defendant, by its servants and/or agents, breached the provisions of the ACL, insofar as the services provided to the plaintiff were not rendered with due care and skill and breached the statutory guarantee that the services would be fit for the purpose. 8. By the defendant's servant, advising Moore to continue to dive down from the surface, shortly after Moore entered the water, when the defendant's servant knew, or ought to have known, that Moore had been struck in the head by the bow of the vessel at that time and had requested to abort the dive, such advice giving rise to a risk of injury to the plaintiff, in so far as Moore was at risk of both uncontrolled descent and ascent ("the risk events"), for which events the plaintiff would be bound to act as a Good Samaritan and/or otherwise come to his aid in those events as his diving buddy and would be at a foreseeable risk of the injury of which the plaintiff suffered.
2. The evidence in relation to these particulars needs to be considered in terms of the disputed issues of fact.

The issues for determination

1. The plaintiff and defendant summarised the factual issues for determination as follows: 1. Did the plaintiff contract with the defendant or did Frew Investments Pty Ltd t/as Charlestown Dive Academy contract with the defendant; 2. Did the defendant supply its services to Charlestown Dive Academy or the plaintiff; 3. Did Mr Moore inform the defendant (through Mr Shorter) that he had struck his head before he dived and did Mr Shorter tell Mr Moore to dive and inform the plaintiff that he did not want to dive; 4. Was there sufficient first aid oxygen available for use on board the Tomaree on 15 January 2012; 5. If so was the plaintiff provided with first aid oxygen whilst on board the vessel; 6. Did the first aid oxygen available on board the vessel run out before the vessel returned to the marina; 7. Did the plaintiff inform Mr Shorter that he was alright (and by inference not in need of first aid assistance) whilst the plaintiff was on board the boat; 8. Did the plaintiff show any signs of or complain of any symptoms that called for treatment beyond what was provided to him whilst he was on board the vessel.

Late applications to amend the statement of claim

1. Both parties made applications to amend their pleadings. In the case of the plaintiff, the most contentious amendment was to add the following paragraph to the particulars of the statement of claim: "By the defendant's servants advising Moore to continue to dive down from the surface shortly after Moore entered the water, when the defendant's servants knew or ought to have known that Moore had been struck in the head by the bow of the vessel, at that time, and had requested to abort the dive, such advice giving rise to a risk of injury to the plaintiff insofar as Moore was at risk of both uncontrolled descent and ascent (the risk event) for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid in those events as his diving buddy, and would be at a foreseeable risk of injury, of which the plaintiff suffered."
2. As is set out in more detail below, the plaintiff was served with a statement by Mr Moore earlier in 2016, and informed only shortly before the hearing that Mr Moore was too ill to cross-examine. It was never made clear how long the defendant had been aware of Mr Moore's evidence about his conversation with Mr Shorter, but this was clearly significant evidence.
3. In granting leave to amend I took into account the circumstances in which the defendant had been aware for some time of the information in Mr Moore's statement, as well as of his failing health. There was no issue of prejudice and the late amendment was explicable by reason of the late notice of these matters.
4. The amendments to the defence included the pleading of a defence under s 151Z Workers Compensation Act 1987 (NSW) and, although contested, were not controversial.
5. I shall first set out the plaintiff's evidence as to the contractual arrangements in relation to the dive.

The contractual arrangements for the diving expedition on the defendant's boat

1. The plaintiff set up a business called Charlestown Diving Academy (through a holding company Frew Investments Pty Ltd) in about 2005 (T 56). A very keen diver who had worked for the navy, the plaintiff had suffered some injuries including a sinus injury. He continued to work as a diver but had to stop diving in about 2002; at the time that he set up the Charlestown Diving Academy, he had been working as a stevedore. He became involved in diving training and offered a course of certification, through the Charlestown Diving Academy, for divers undertaking particular kinds of dives (T 60). The plaintiff was also a rescue diving and dive master, offering speciality courses such as "nitrox, deep, [and] wreck" (T 60) and what he called "technical diving" (T 60). He was able to offer to take divers on tours through boat operators such as the defendant. He described this process at T 61 as follows: "Q. When you say, "as a booking agent" if you could just describe to her Honour, if you like verbally, how would that work in terms of, for example, if you had a number of customers that want to go on tour how would you engage Lets Go Adventures Pty Ltd, the defendant, to go on a tour? A. Well essentially somebody would express that they wanted to go on there, or, you know, basically that's probably the main way. And we'd have anywhere from sending one person to a dozen people up there on their set trips. Q. How did you engage Lets Go Adventures‑‑ A. Phone call. We'd just give them a phone call and see if they had any spots available. HER HONOUR Q. I hear what you say, what I want to hear is how did this all come about, how did you meet these people? A. How did we meet ‑ sorry, how did we meet the people? Well the people were general customers in our store and they'd say they want to go dive Nelson Bay, so we would ring up Nelson Bay and say, "do you have any spots available?" And they'd say, "yeah, we can fit them on this day, that day" et cetera. HART Q. Did you have any previous relationship with any of the principals of Lets Go Adventures before June 2012, personal relationships at all? A. Personal, not so much as personal, all professional. Q. Just professional? A. Yes. Q. Did Lets Go Adventures advertise these tours in your shop? A. Well they have them on their website. Not so much, they wouldn't advertise it, but we would put up a list saying "hey, we may send a group there, if anybody's interested put your name down for it". Q. And then I think you said you'd make a phone call, do you remember who you'd normally speak to at Les Go Adventures to put these people in the boat? A. Well originally it was two different people; they've only just bought the business recently, so Chris Norman who I used to deal with, and his wife, Pam. I can't remember the other lady's name who now owns it, but she would be the other one, and also just normal other staff as well; whoever was on the phone on the day." (T 61-62)
2. Mr Hart then asked: "Q. Earlier in your evidence you mentioned some names of principals that operated Lets Go Adventures Pty Ltd, and you gave us a couple of names, in the first circumstance that you had customers that came into your shop that wanted to go on a tour, do you remember having a conversation with anyone that ran Lets Go Adventures in order to put people on their tours through your shop? Do you remember having a conversation at all? A. It was a given from quite a long period, but there was‑‑ Q. Just a second. Do you remember having a conversation with anyone at Lets Go Adventures about putting people from your shop on their tour, and how that was organised between you and them? Did you ever have a conversation at all? A. Yes, there's been various conversations." (T 62)
3. After he was advised of dive availability dates, he would talk to the customer and arrange a dive as follows: "Q. In terms of, and I'll use the expression, the deal, did your business benefit at all by booking these customers with Lets Go Adventures? A. We would get a 20% commission on any customers, and if we got more than five, we would get one free of charge, which we could take in cash or send one of our own people just for experience. Q. Did that arrangement arise out of the conversations that you've just described? A. Yes." (T 63)
4. However, as is noted in the extract from the transcript at T212 - 213 below, the defendant put to the plaintiff that he could not take cash, to which he appeared to agree. Whether or not this was the case, the difference between these two scenarios was never explained in terms of relevance to the ACL claim. One point the plaintiff did not concede, however, was that he received the discount only if a qualified person attended the group (T 213). This is of significance in relation to whether the plaintiff and his fellow divers were consumers.
5. The plaintiff identified the invoice for the dive date in question and identified the persons listed on the dive as himself, Mr Moore, his girlfriend Karen Hetherington and the other persons whom the plaintiff had booked for the diving tour through the plaintiff's company. He was asked: "Q. What does that document show you in terms of the arrangement between you and Lets Go Adventures about the cost of the tour? A. We're talking about the unit cost, which is $70 per head, a free inclusion for myself, cause we got over the five, and 20% commission for the divers that were on the boat. Q. That next to your name says what? A. Free inclusion." (T 63)
6. The terms of this tax invoice are as follows: "TERMS OF TRADE - 7 DAYS (from Invoice date). If paid within 7 days all discounts specified apply. If not paid within 7 days the full balance of $490 is payable. Direct deposit details: Lets Go Adventures Pty Limited. BSB: 062761, Account: 10068038"
7. The plaintiff went on to clarify: "Q. Just to deal with a little bit of background to the event that occurred on 15 January 2012, I think you gave evidence about in general terms how the bookings would work, you being in contact by telephone with the servants of Lets Go Adventures. Is that, in general terms, how this arrangement was come to on this particular day? A. This one would have been booked a few weeks in advance, and we would have said, "Can we have some spots on your boat?" Yeah, that's how that would have come about." (T 64)
8. As has been noted above, in addition to receiving a free seat, the plaintiff was keeping the difference between the full price and the discounted price rather than passing it on to the divers.
9. When the plaintiff arrived at the marina in Nelson Bay, the only person present was Mr Adam Shorter, the coxswain on the day. He was unable to tell whether the other persons present were customers or staff (T 65). Everyone had to sign what the plaintiff called "paperwork" at the marina (T 65).
10. The plaintiff described what happened next as follows: "Q. There is paperwork signed, then what happened? A. Essentially, everybody grabs their equipment, it's loaded onto trolleys, the trolleys are taken out to the vessel by some staff who usually pull it, usually the customers get in and give a little bit of a hand pushing it, and things like that. Then it's loaded onto the vessel, and once everybody's on board, the equipment's on board, then the vessel proceeds. Q. At that stage, has anyone got wetsuits on? A. Usually, not at that stage. You may get one or two who may have a drysuit half on, if they've got special requirements for their drysuits, but yeah, not much. Sorry, maybe there would be some wetsuits on, I don't know. I don't know for every individual, sorry, so I couldn't tell you. Q. You don't recall, but it's possible that some had wetsuits on, do you say? A. Some probably had wetsuits on, I don't usually put mine on until I'm on my way out there. Q. Then the vessel left the marina, I take it? A. The vessel left the marina, yes. Q. Who was operating the vessel at that time? A. Adam Shorter was the coxswain on board that day, yes. Q. Employed by, as far as you know, Lets Go Adventures Pty Ltd? A. Lets Go Adventures, that's right. Q. You left the marina, and you were heading to a wreck, apparently? A. That's right. Q. The name of the wreck was what? A. The ss Oakland. Q. I don't think this is common ground, but ss Oakland is where exactly? A. It's in between Broughton Island and I think it's Cabbage Tree Island." (T 66)
11. One of the issues was whether this was a commercial arrangement. The plaintiff was cross-examined as follows: "Q. In relation to the booking arrangement, I want to suggest to you that you could have charged your clients any fee you liked for the trip on 15 January 2012? A. We may have; I don't know. I'd have to go back through invoices. Q. You could charge more than the $70 for instance? A. We may have. Q. Or you could charge less. It'd be unlikely, but you couldn't you? A. We may of, yeah. Q. In fact, you're entitled to charge your own clients any fee you like? A. Pretty much so. Q. I think you've said, before the adjournment that in relation to the free onboard, and by the free onboard I'm referring to the entry on ‑ do you still have the invoice with you? A. I don't think so, no. Q. You'll remember on the invoice that I showed you, which was exhibit B, it your name as the first entry, and it was free? A. Yes. Q. And were talking about that free onboard. You said that you can take that as a cash payment? A. Yes. Q. I'm suggesting that you could never take that as a cash payment? A. If you're saying that, you can say that. Q. Can you direct to any evidence prior to 15 January 2012 you took the free onboard by way of a cash payment paid by Lets Go Adventures? A. I couldn't say. I couldn't say." (T 212-213)
12. Mr Reynolds put to the plaintiff: "Q. I suggest to you that if there was not a Charlestown dive representative, employee, onboard the boat, then you would not get any either credit or monetary payment by way of free onboard for anybody? A. Well, part of that not's correct. Q. Which part is not correct? A. Well, you're talking about we wouldn't get any monetary value as in what? The commission, is that what you're saying? Q. No, I'm not talking about that; I'm saying free onboard. There'd be nobody free onboard? A. Free onboard, if we get that 5FOC, and there's somebody‑‑ Q. You would not get a free onboard for anybody if you didn't put a Charlestown employee onboard the boat with the Charlestown clients? A. No, that's not correct. Q. I suggest you only got it because you had an employee on the boat, either you or some other employee on the boat with the Charlestown clients? A. Not necessarily correct, no." (T 213-214)
13. However, the basis upon which this meant that the plaintiff's claim fell outside the ACL was put on very narrow grounds, namely that the plaintiff was not covered either because he was there for free, or because he was technically on the Lets Go staff in exchange for being offered a free seat, or both. Mr Reynolds told me (at T 215) "from the Bar table what the evidence will be" on this issue, namely that if the plaintiff did not put an authorised person on board the boat, then the defendant had to put an authorised person on the boat at their expense to cover the insurance policy of having someone to supervise the divers.
14. In other words, the defendant's case was that the insured person on board to cover the risk of persons who are brought on board was the plaintiff and not the defendant. Mr Reynolds explained that the defendant "either put the plaintiff on for free or they have somebody else" (T 215).
15. Mr Hart pointed out (at T 216): "HART: This is a ridiculous proposition, your Honour. If you go to p 72 of the defendant's own exhibit there is a Master Adam and a Dive Director Rowan. Is Mr Reynolds suggesting that on this particular day they delegated responsibilities for the six customers in Mr Barrett's company totally to Mr Barrett, that's repugnant to the facts that they allege, the facts in the document."
16. As Mr Hart puts out at T 218, this is not pleaded. Essentially, what Mr Reynolds says (T 219) was that when the plaintiff came back on board, the obligation lay with the operators of the boat to all persons, including the plaintiff.
17. The problem is that the plaintiff's pre-ticket was not really free. It was a free ticket conditional upon payment being made in a prompt fashion, failing which he was liable to pay the full "unit price" at $70.
18. I note in passing that, although not identified with precision, the defendant also appeared to rely upon an alternate basis in its defence, namely that the plaintiff was on the boat for commercial purposes. Although Mr Reynolds did not refer to the similar argument put in Motorcycling Events Group Pty Ltd v Kelly (where the defendant argued that the plaintiff undertook the motorcycling activity which led to his injury for commercial purposes), I apprehend that this was what he had in mind. One of the difficulties with this argument is that this was not put to any of the witnesses (other than the plaintiff, who denied it) and it appears to turn solely on the terms of the ticket.
19. The second challenge to the plaintiff's ACL claim arose from the signing of the waiter. This documentation that was signed by the plaintiff is described in more detail below by Ms Challen. The plaintiff's evidence concerning this waiver (at T 223) was as follows: "Q. Your signature is on the bottom left‑hand corner of the document? A. Yes. Q. There's a signature script starting with "I, Dean Bennett", you see that? A. You're talking about the top left‑hand corner? Q. At the bottom corner it says, "I, Dean Bennett‑‑ A. The bottom, sorry. Q. ‑‑by this instrument", et cetera, you see that? A. Barrett but I'll answer to anything. Q. Barrett, sorry. No, sorry, my apologies. This was executed by you on 15 January 2012? A. Yes, all customers have to sign this supposedly. Q. And it was signed at the shop before you got onboard the boat? A. That's right. Q. And it's got a date in the top right‑hand corner? A. Yes. Q. You've been on this boat before hadn't you, that is, the Tomaree? A. On the boat? Q. Yes? A. A couple of times, yes. Q. You'd been on the boat more than a couple of times hadn't you? A. A couple of times, yes. Q. A couple is two? A. I don't know, I just ‑ all right, yes, I've been on it a few times, yes. Q. I'm suggesting you've been on the boat before 15 January in excess of 20 times? A. I couldn't give you a number, so ‑ they've got two boats so they've got different boats as well, so. Q. I understand that but I'm talking about this boat, this is the bigger boat? A. I haven't got an account, sorry, if you say there's 20 it's 20. I'll give you that."
20. The plaintiff agreed that all of the participants in the dive had to execute this document and that at the time the boat was about to depart all of the persons on board the boat were addressed by one of the Lets Go personnel, who provided a safety briefing by reading from a card as follows: "There are a number of safety procedures on this charter boat that you need to be aware of. This is a non‑smoking boat. The engine covers are fibreglass, please do not place any scuba units, weight belts, weight pouches, or tanks on top of the engine cover. It may seem obvious but please do not sit on the engine covers while in your dive gear. There is first aid equipment and oxygen on the boat in the forward cabin. The skipper and the staff are trained in first aid; emergency services can be contacted by radio and mobile phone. There is a life raft and lifejackets onboard. Tomaree has a toilet on board, it's a sea toilet. Please only flush what has been through your body, a small amount of toilet paper is okay to flush, please use the black button on the wall behind the toilet, hold for at least 20 seconds. Divers are advised to drink plenty of water before and after each dive, there's plenty of water on the boat. If you feel seasick please sit in an area with plenty of breeze and look at the horizon. If you're going to be sick please go to the leeward side of the boat, [sic] the toilet, as this will make you worse. If you choose not to dive for any reason unfortunately we cannot offer you a refund, if however the crew decides the conditions are not suitable for diving you may be entitled to a refund. If you intend to fly on an aircraft the recommended minimum surface interval is 24 hours. If you have a cold, a hangover, or you have any illness in the past week it's recommended that you do not dive." (T 225) [Emphasis added]
21. These safety arrangements applied to all the divers on the boat, including the plaintiff. He was treated as a customer of the defendant, not as a crew member.
22. I have highlighted the section about what happens where a diver chooses not to dive, as it is relevant to the determination of what Mr Moore might have thought was the course to take if he had decided not to dive.
23. As set out in more detail below, I am satisfied that the evidence of Ms Challen and Mr Shorter confirms the nature of the contractual relationship between the parties is as contended for by the plaintiff, namely that the contract was made some time beforehand and not on the day of the diving trip. Their evidence similarly does not suggest that the plaintiff was conducting this trip for purposes such as training divers, which is relevant to the question of whether the plaintiff was a consumer.

The plaintiff and Mr Moore commence their dive

1. After the boat left the dock it went straight to the dive site. The plaintiff did not agree that this took about twenty minutes, but agreed that the boat went straight there. Although he did not recall it, he acknowledged that another safety briefing was given. He acknowledged that he could be heard to say (although much later) in the GoPro footage that there was "plenty of O2" on the boat.
2. The plaintiff saw Mr Moore putting on his diving gear, but otherwise could not recall anything prior to getting into the water himself: "Q. Did Mr Moore say anything at that point about proceeding with the dive? A. Not that I recall. Q. Did he say at that point that he wasn't feeling all that well? A. Not that I recall, no. Q. Did you hear Mr Shorter say to Mr Moore that he should discuss the dive with you? A. No, I didn't, otherwise I would have. Q. Do you remember saying anything to Mr Moore about the dive at that time, that is, when he was putting his gear on? A. Not that I recall, sorry." (T 234)
3. The plaintiff said he was in the water and gave Mr Moore the "thumbs up" signal, to see if Mr Moore was ready to dive, to which Mr Moore responded with a similar signal. Mr Moore then submerged and went straight to the bottom: "Q. You'd already descended when he went below the surface to do the dive, isn't that correct? A. No. No, we come around the front of the boat and I gave him the thumbs to go down, which he replied. I went down about a metre waiting for him. Q. That's right. So you were already down about a metre‑‑ A. About a metre, yeah. Q. ‑‑before he descended? A. Before he descended, yeah. Q. But when he then descended he went straight past you, you said? A. Yeah. Q. And he kept going? A. He kept going. Q. That's pretty unusual, isn't it? A. Well, no, a lot of guys go down fast because they try to maximise their bottom time with the air that they've got, so what was unusual was the arms flailing everywhere, yeah. Q. The arms were failing everywhere, and you and he in the buddy process‑‑ A. Mm. Q. ‑‑involves you and your buddy staying reasonably close together? A. That's right. That's why I chased him down, yeah. Q. And the fact that he just went straight past you‑‑ A. Yeah. Q. ‑‑without engaging in what might be called the buddy process, was indicative of something a bit strange itself, wasn't it? A. Not necessarily, no. Q. It certainly wasn't what you had intended to have happen? A. Well, I intended to go down the line. Usually we just swim down the line hand over hand. Q. That's what you through was going to happen with Mr Moore, as well; that you were going to go down the line. Whether you held on or not, you were just going to follow the line down to the wreck, weren't you? A. Every diver has their own way of descending, sorry. Q. Somewhere along the line between the surface and the 26 metres, Mr Moore would have had to have equalised for his ears, the pressure on his ears, wouldn't he? A. He would have somewhere, yes. Q. But you didn't see him stop to do that? A. I didn't see him do anything, so, exactly, I just‑‑ Q. He just went straight to the bottom? A. Yeah, pretty much. He may have been ‑ you can also equalise by moving your jaw as well, so he may have been doing that, swallowing. So there's other ways to equalise. Q. In any event, whilst he was ‑ when he was on the bottom and from we see ‑ I think you said there was about four minutes into the dive when the video picks us up, picks you up? A. That one particular video, yes. Q. From that moment he was clearly in a bit of trouble wasn't he? A. It didn't look normal. Yeah, I could tell he was in trouble he just didn't look normal." (T 234-236)
4. As the above cross-examination shows, it is not in dispute that it was at about this time that Mr Moore turned on his GoPro camera. The fact that he did so is, I consider, indicative of Mr Moore's intention to continue with the dive, notwithstanding any earlier statements to Mr Shorter to the contrary.
5. The incident from this time onwards was filmed by Mr Moore's GoPro camera.

The GoPro footage

1. As noted above, Mr Moore, the "diving buddy" of the plaintiff, was wearing a GoPro camera on his diving equipment. Forty-three minutes and twelve seconds of video has been recorded. That footage is part of Exhibit A.
2. I will not set out the whole of this transcript in full, but will note that, from shortly after the time of Mr Moore's descent to the bottom, even without the benefit of the expert testimony which I heard, it is obvious from the reaction of the plaintiff that he is coming to realise that there is something wrong (in fact, Associate Professor Mitchell makes the same observation at the commencement of his report), but that Mr Moore is giving him hand signals indicating a wish to continue diving and that as part of this process of confirmation, he is seen turning on and using the GoPro.
3. As the transcript of the GoPro records, the footage starts with the plaintiff trying to stabilise Mr Moore's balance in the water. Mr Moore can be heard to be breathing very quickly. After the plaintiff let go of Mr Moore, he commenced to fall to his right, bouncing on one knee as he tried to regain his balance. As early as 35 seconds into the footage, the plaintiff can be seen removing Mr Moore's 50% nitrox pony, which he later said in his evidence was because he thought this was affecting Mr Moore's balance. Mr Moore can be seen leaning to his right. At 1 minute 28 seconds, Mr Moore can be heard breathing fast, and the transcript goes on to describe what can be seen on camera, namely that Mr Moore is in increasing distress, having trouble clearing his mask and being given assistance from the plaintiff. These actions are more accurately described by the expert witnesses and by the plaintiff in their evidence, so I will not summarise them further.
4. Although Mr Moore initially indicated that he was "okay" (see the entry at 3 minutes 26 seconds), by 9 minutes 22 seconds, Mr Moore has indicated he wanted to abort the dive and the plaintiff is heard to say "go up". The rapidity of their ascent is described by the expert witnesses. The first alarm goes off at 11 minutes 14 seconds as the plaintiff and Mr Moore are ascending out of control. Multiple alarms are heard going off for a second time at 11 minutes 34 seconds and the footage shows the plaintiff and Mr Moore ascending at a fast rate in what is described in the transcript as "uncontrolled ascent". Further alarms can be heard to go off on Mr Moore's suit at 12 minutes 54 seconds; the plaintiff can be seen trying to grasp Mr Moore and slow down their ascent. At this stage the plaintiff's alarms are heard to go off for the third time. Mr Moore surfaced at 13 minutes 12 seconds after activating his GoPro. He was unconscious.
5. It is at this stage that the plaintiff yelled out "hey" to the boat (at 13 minutes 22 seconds) as he had had no response to his inquiries from Mr Moore, who appeared to be unconscious. It is clear from the GoPro footage that there is no one to be seen on the boat and that there was no response from the boat. Alarms can be heard going off. The plaintiff is clearly trying to get Mr Moore to respond by calling out his name and putting his regulator back into his mouth, despite him being unconscious and unresponsive. During the whole time that the plaintiff was tolling Mr Moore back to the boat, there was no response from the boat lookout. Mr Shorter is seen at 13 minutes 54 seconds, leaning over the side of the boat. Music can be heard playing inside the boat cabin.
6. The plaintiff passed Mr Moore's camera to Mr Shorter, who placed it in the wheelhouse while the plaintiff continued to toll Mr Moore to the stern of the vessel.
7. Between 14 minutes 10 seconds and 22 minutes 39 seconds, the camera is in the wheelhouse; only some noise can be heard due to the music which was playing. It is during this period that the plaintiff was trying to haul Mr Moore up the boat to where Mr Shorter was, but this could not be done as Mr Moore's equipment was too heavy for him to be lifted onto the vessel. The plaintiff climbed up the ladder to take off his own equipment and then returned to the stern of the boat to enter the water.
8. By this stage, according to the transcript of the dive, Mr Moore's face had turned blue, as Mr Shorter had not kept his airway open. The plaintiff said, "Fuck, I think he is dead", and re-established Mr Moore's airway by tilting his head back. As Mr Shorter was unable to lift Mr Moore out of the water, the plaintiff placed Mr Moore over his shoulders and swam, carrying Mr Moore to and up the ladder. He received limited assistance in this task from Mr Shorter, who indicates later that he had injured his arm trying to hold and lift Mr Moore. Mr Moore regained consciousness on the last step or two on the ladder and was able to assist the plaintiff who was struggling to lift his weight. The plaintiff asked Mr Moore to lie down but he refused. Mr Shorter can then be seen retrieving a portable oxygen unit which was set up on the back deck.
9. The footage resumes at 22 minutes 39 seconds, with the plaintiff, Mr Moore and Mr Shorter entering the wheelhouse. Mr Moore is using the same oxygen unit but it is unseen on the footage. The plaintiff returned to the back deck after helping Mr Shorter take Mr Moore to the wheelhouse and went to recover his own equipment which had been left on the deck.
10. The following conversation can be heard at 22 minutes 39 seconds: Adam Shorter: "Just fucking sit here brother." Mark Moore: "is your arm alright?" Adam Shorter: "Hey." Mark Moore: "is your arm alright?" Adam Shorter: "I just got arm pump from lifting ya… Did some working out." Adam Shorter: "Just relax ok." Mark Moore: "Can we get a bucket in this area?" Adam Shorter: "Hey." Mark Moore: "In case I spew, I don't want to spew on the floor." Adam Shorter: "That's alright." [Adam Shorter gets a bucket.]
11. Thereafter Mr Moore is heard coughing and possibly throwing up. The plaintiff comes to the wheelhouse, as Mr Moore is in there by himself without a first aid assistant. He said to Mr Shorter, "I'll find out what's wrong with him", and Mr Shorter said, "okay", turning off the music in the wheelhouse. The plaintiff said to Mr Moore: The plaintiff (whilst slapping Mark Moore on the back): "Just trying to get rid of it are you?" Mark Moore: "Yeah! It's fine, I just swallowed some water." The plaintiff: "Okay, get that oxygen on as soon as you can mate." Mark Moore: "Yeah as soon as I get this up." The plaintiff: "Get the oxygen on, you're wasting it." (Continuous flow oxygen mask) Mark Moore: "Yeah I am mate I am." Mark Moore: "I just don't want to." The plaintiff: "That's alright, just take it off when you really need to throw up." Mark Moore: "Can you do me a favour? Hold the bucket in front to tip it in." (Mark Moore then proceeds to clear nose into bucket)
12. The plaintiff then assisted Mr Moore, saying, "come on, put it back on, oxy back on, put the oxy on." He continued to urge Mr Moore to use the oxygen, telling him to "suck in that air, you need to take nice deep breaths". At 26 minutes 32 seconds, the plaintiff can be heard to say, "we both got to be monitored that's all, make sure nothing happens I need to be safe myself, nowhere near deco [sic] anyway".
13. The GoPro footage shows Mr Moore's dive computer still attached to his equipment. No other 100% oxygen unit can be seen, nor has one been offered to the plaintiff. This is despite the plaintiff having given the first indication that he is at risk as well. Mr Moore can be heard to say he is sorry and the plaintiff reassures him. Two persons are heard to speak to each other outside the wheelhouse but Mr Shorter has not returned to the wheelhouse because he is assisting the other divers get back on board. There was no one else to assist Mr Moore except the plaintiff. Mr Moore said he remembered blanking out for a minute and the plaintiff told him that he was blue when he got to the surface of the water. The following conversation occurred at 28 minutes 13 seconds: The plaintiff: "Your mask was flooded, you had your nose sticking out like that. Your mask was here and your nose was sticking out." The plaintiff: "So what we are going to do is… get your wife to take you up to the hospital just for a check-up alright, because they're going to have to, so take the oxy with you." (Indicates that it is a totally portable unit, i.e. Oxy-viva with "C" size cylinder) Mark Moore: [Undecipherable] The plaintiff: "Hey" Mark Moore: [Undecipherable] The plaintiff: "Sorry! I can't hear you." Mark Moore: "I'm going to the John Hunter?" The plaintiff: "John Hunter, yeah? Yeah." Mark Moore: "That would be the better one mate."
14. The following events occurred at 28 minutes 52 seconds: The plaintiff: "Well you might want to go to the Medical centre at Nelson Bay?" The plaintiff: "I would recommend you go to purely because they have O2 there and can have a quick look at you and organise you for transport to John Hunter. Alright?" (According to the plaintiff's notes, at this time it seems the plaintiff is already aware of the lack of oxygen.) The plaintiff: "Now I think the Medical is at Shoal Bay." [Mark Moore starts coughing again with the sound of oxygen escaping via positive pressure therapy mask.] [The plaintiff grabs Mark Moore's 50% Nitrox bottle for himself.] The plaintiff is heard to say to someone, "Mark Moore, grab two other tanks." (According to the plaintiff's notes, at this period the plaintiff is searching for other alternatives for the lack of oxygen and oxygen units and Mark Moore's 50% Nitrox was the next alternative.) [Mark Moore continues coughing.]
15. The following conversation occurs at 30 minutes 35 seconds: The plaintiff: "Alright, you sound like shit buddy, you alright? Feel better? Worse?" Mark Moore: "Yeah, nah, nah, can't feel worse." The plaintiff: "Can't feel worse?" Mark Moore: "Feel better." The plaintiff: "Feel better, ok you need to keep sucking that oxygen in." Mark Moore: "[Undecipherable]… water"
16. At 31 minutes 15 seconds, Mr Moore can be seen on camera with the positive pressure oxygen mask on. The divers roll is called at 31 minutes 35 seconds. At 32 minutes 36 seconds, Mr Shorter shuts off the oxygen at Mr Moore's request while he is coughing, mentioning shutting off the therapy switch on the oxygen unit, which is noted in the transcript as confirming that this is a portable oxy viva type unit. Mr Shorter is heard to say, "We have plenty of air, plenty of O2, but?" Mr Moore can still be heard to be coughing. At 33 minutes 29 minutes, the plaintiff is heard to start coughing and the following is noted in the transcript: [The plaintiff starts to cough] The plaintiff: "That's me mate." [The plaintiff grabs the 50% Nitrox pony bottle belonging to Mark Moore.] Mark Moore: "Where's mine?" (Mark Moore referring to the Pony bottle in the plaintiff's hands not realising it is his.) The plaintiff: "Hey? We are going to get it now, only cause we didn't do a safety stop. Ahhh!" [Both the plaintiff and Mark Moore continue to cough. This is the first indication of the plaintiff in distress.]
17. The boat was still anchored at this time. The boat crew, all of whom had previously been diving, were now trying to recover the rope which was still attached to the wreck and the vessel motors can be heard starting up and straining. A diver had to go down to retrieve the mooring line.
18. At 34 minutes 49 seconds, the plaintiff can be heard to say to Mr Moore "Okay get back on the O2 mate." The vessel gets underway at 36 minutes 21 seconds, which is approximately 23 minutes from the time that Mr Moore had surfaced in distress. No radio call had been made to emergency services, although as is noted in the transcript, the plaintiff had asked if the incident had been "called in" (paragraph 73 of the transcript). At 36 minutes 27 seconds, the plaintiff can be heard to say, "Just take it easy dude and suck that air", while coughing himself while random breaths of the 50% Nitrox pony bottle, as well as looking after Mr Moore. No other first aid had been rendered to either the plaintiff or Mr Moore, apart from the supply of oxygen to Mr Moore.
19. At 36 minutes 51 seconds, Mr Shorter can be heard to say, "What do you want to do Dean? Did you want to drive him up to the Multi Clinic or call an ambulance?" While this was under discussion, Mr Shorter noted that Mr Moore was "very oxygenated now" because his cheeks were red, so the plaintiff said to Mr Shorter, "I'll pinch your oxygen and that off you." Mr Shorter replied, "Hey?" and the plaintiff repeated, "I'll pinch your oxygen for a while and bring it back", meaning he would take it with him to the clinic for Mr Moore.
20. At 39 minutes 45 seconds, the plaintiff is heard to be saying, "Might come and suck some with you too mate just to be on the safe side". The plaintiff sat down next to Mr Moore with the 50% Pony bottle. He had been standing the whole time attending to Mr Moore prior to this. Mr Shorter replied, "Yeah get into that Dean" and the plaintiff is heard to be breathing from a regulator and coughing. Mr Shorter said, "You alright?" The plaintiff replied, "Yeah, I just got… [undecipherable]". Mr Shorter's reply is undecipherable and more coughing is heard.
21. The footage ceases at 43 minutes 12 seconds.
22. The accuracy of what is heard on the GoPro footage is not in question. While parts of the conversations cannot be heard because of the music or because the words are undecipherable, it records, in more or less real time, the events of the time from the time that Mr Moore activated the camera when in the water.
23. What had happened to Mr Moore before he got into the water? This was the subject of a statement given by Mr Moore.

Cross-examination of the plaintiff concerning the events on the GoPro

1. The plaintiff was asked why he had not been "far more forceful", aborted the dive and physically dragged Mr Moore to the surface. The plaintiff replied that he attempted to abort the dive two or three times but Mr Moore would not do so, and he could not leave Mr Moore alone because of the "buddy" system: "Q. But this guy was a really ‑ he was a 100 plus diver dive, he was a very experienced diver? A. Yep. Q. Yet he was behaving in this odd manner? A. Yep, that's right. Q. Why didn't you abort the dive? A. I did, I told you before. Within that missing four minutes I tried to abort it three or four times. Sorry, two or three times. Q. But why didn't you exercise your authority and abort it? A. Because both guides have got to agree to it. So one up, we bunny pairs we went up, I can't leave him. Q. But you're the more experienced out of the two of‑‑ A. At the time I didn't know anything, I didn't know he'd been impacted with the boat, so I had no idea what was going on. Q. Why didn't you just say to him that's it? A. The only way I could know was physically grab him and drag him up. When he's going that he's okay and then asking me about the light on the camera, yeah, that's all I can go in, what he ‑ you know the actions, so yeah. Q. But why didn't you take hold of him then if that's the case? A. Because that's not what you usually do, so, sorry. Q. Well what ‑ if a person's in trouble below the water‑‑ A. Yep, it's easy to make ‑ sorry, keep going? Q. If a person is in trouble below the water and you see that he's in trouble below the water you don't just let him carry on do you? A. When you see somebody playing with your camera you're not sure what's going on. So when they say they're okay. When you signal okay and they give an okay back that's usually standard. Q. Yes, but there was a lot of aberrant behaviour as well as what you call standard behaviour, wasn't there? A. Yes." (T 238)
2. At about 15 minutes it was clear Mr Moore was seriously affected and the plaintiff was able to start the ascent with him. This can be seen on the GoPro, and the alarms of both divers can be heard to go off: "Q. It looks to me like if you take it from the very time you first went below water‑‑ A. Mm‑hmm. Q. ‑‑to the time you first came back up on top of the water‑‑ A. Mm. Q. ‑‑the total time is about 17 and a half minutes? A. Yes. If that's what it is that's what it is. Q. The alarms that are on your equipment? A. Yes. Q. We've heard that they were activated from time to time? A. Yes. Q. A couple of alarms, I'm not saying two, but there were a number of alarms that were activated as you were rising? A. Yes. Q. Alarms are on your hand, aren't they, they're on your wrist? A. No, it was on my chest for that reason." (T 243)
3. These questions are based upon two observations of Associate Professor Mitchell at page 7 of his report. First, Associate Professor Mitchell starts by saying that these events "could not have been predicted nor prevented by any plausible action on the part of [the defendant]" and that it was the divers' responsibility, in that their conduct underwater "was entirely their responsibility". In this regard, while the plaintiff could be "commended to some extent for being a reasonably attentive buddy", he could also "be criticised for not being more proactive in managing what was clearly a deteriorating situation as the dive progressed." The plaintiff's "lack of decisive leadership" meant that earlier intervention "may well have prevented the subsequent rapid ascent and its alleged consequences" (page 7 of the report dated 25 January 2016, Exhibit 1, Tab 1).
4. The plaintiff had seen Mr Moore behaving normally seconds before, on the boat, and had no way of knowing that in the interim he had suffered a blow to his head which he had reported to Mr Shorter. The plaintiff saw Mr Moore descend very rapidly to the bottom but Mr Moore then continued to give the plaintiff indications he wished to go ahead and, significantly in my view, was seen by the plaintiff "playing" with his GoPro camera, a clear indication of a wish to continue the dive. Mr Moore was an experienced diver, not an ingénue. The plaintiff intervened and acted swiftly as soon as it became apparent that Mr Moore's difficulties were serious.
5. I accept the plaintiff's evidence that his conduct in this regard was reasonable. The relevance of this evidence to the issues of liability is, however, limited, and was addressed only briefly by counsel. How late Mr Moore was brought to the surface after he got into difficulties is of little relevance to the disputed issues of fact. One of the difficulties I have with Associate Professor Mitchell's report is that he has expressed opinions upon issues of liability which have no basis upon the legislative framework in which the plaintiff's claim is brought and are based upon information later found to be incomplete (in this case, the evidence of Mr Moore was not available to him).
6. I have set out below why I am satisfied that Mr Moore did tell Mr Shorter that he struck his head before he dived. I formally note there is no evidence that the plaintiff saw this or knew that Mr Moore said that this had occurred.
7. The second issue, namely the rate of ascent, was addressed by the experts in their evidence, and is dealt with in that part of the judgment.
8. The third issue, namely the plaintiff's delay in seeking medical attention, is dealt with in the part of this judgment relating to causation and quantum.
9. I briefly note, at this juncture, that Mr Moore's statement was tendered because his death was imminent. That tender was agreed to by the plaintiff. However, Mr Reynolds then made an application to call Mr Moore notwithstanding the peremptory tone of the medical certificates advising that he was in no state to give evidence, even by telephone. I set out my reasons for rejecting that application.

The evidence of Mr Moore

1. As is set out below, Mr Moore was diagnosed with only a few weeks to live prior to the hearing commencing. The defendant sought leave to tender a statement prepared by his solicitor on the basis that Mr Moore was too ill to be cross-examined. Although that tender was initially resisted, the objections were withdrawn.
2. The text of that statement sets out the relevant events as follows: "1. I had made arrangements with Charlestown Dive Academy at Nelson Bay to participate in a diving course regarding Oakland Shipwreck. The dive was to be undertaken with Dean Barrett of Charlestown Dive Academy at the Oakland Shipwreck. The course was "Advanced Nitrox - Instructor Dean Barrett". 2. The Oakland Shipwreck was in water of approximately 27 feet. 3. I arrived at the dive shop at Nelson Bay at approximately 7:30am on the morning of 15 January 2012. 4. I ensured that my equipment was ready to enable me to proceed with the dive. 5. I asked Dean Barrett to check the setup of the regulator on my equipment I was concerned that I had not prepared the regulator correctly. 6. I observed that Dean checked the hoses and regulator on my equipment Dean then said words to the effect "it is connected correctly". 7. The dive that was to be undertaken was with two (2) Nitrox tanks, a tech BCD and a pony tank. 8. Prior to embarking on the boat which was to take us to the dive the plan in relation to the dive was not discussed with Dean in any detail. 9. When I arrived at the boat I commenced putting on my diving equipment. A person Rowan said to me words to the effect "the hoses are not connected correctly". I then said to Dean words to the effect "I don't want to go ahead with a dive as I don't feel right". Dean replied "shut up and get ready". 10. When we arrived at the site of the dive Dean entered the water first. 11. I plunged into the water feet first with my equipment on. I endeavoured to find the rope to guide me to the dive area. A swell in the water lifted about the bow of the boat and caused the bow of the boat to strike me on the head. 12. Dean had already submerged for the dive without me. 13. After the bow of the boat struck me in the head I said to the staff on the boat that I was aborting the dive. 14. The staff on the boat advised me that I would have to tell Dean that I wanted to abort the dive. However Dean had already submerged toward the dive site being the Oakland Shipwreck. 15. I submerged for the purpose of locating Dean to advise that I wished to abort the dive. I did not feel well and wanted to abort the dive and get to the surface as soon as possible. 16. I felt very unco-ordinated while diving and felt that my balance in the dive was not appropriate. 17. When I located Dean he took my pony tank and later my gopro [sic] camera. 18. I signalled to Dean that I was aborting the dive and returning to the surface. Dean did not assist me to return to the surface. I recall that I was making a motion of riding a bike which was something a diver in distress sometimes does. 19. During my ascent to the surface I stopped on the way up but only for a few minutes. I had my computer watch on my wrist. The computer watch is designed to warn a diver if a diver is ascending too quickly. The watch did not give any indication that I was ascending too quickly. 20. I do not recall reaching the surface. I am of the view that I must have lost consciousness. When I came to, someone had manoeuvred me to the ladder of the boat. 21. The staff on the boat were yelling at me "to get my arse in the boat". 22. I somehow managed to pull myself up the ladder of the boat and got into the boat. 23. I cannot recall whether my diving equipment was removed in the water or on the boat. 24. When I gained access to the boat the staff on the boat gave me oxygen. 25. I was still feeling unwell and vomited. I vomited up some blueberries that I had eaten for breakfast that morning. 26. After being ill I sat in the cabin of the boat with the skipper of the boat and Rowan. The skipper of the boat and Rowan had placed an oxygen mask on and I was breathing oxygen. 27. When breathing the oxygen I observed that Dean was outside the cabin talking to other people on the boat. 28. I have no recollection of Dean asking for oxygen. I am aware that there were other tanks on the boat I recall Dean saying that he was "okay", Dean was talking with everyone on the boat during the journey back to shore and showed no signs of distress. 29. Dean checked on me occasionally whilst I was in the cabin returning to shore. 30. It appeared to me that the staff on the boat were concerned about my physical condition. 31. On return to the marina at Lets Go Adventures, I overheard some of the staff saying to Dean words to the effect "he should be taken to the polyclinic to be checked out". The suggestion that I attend the polyclinic was not Dean's suggestion but rather that of the staff at the Lets Go Adventures. 32. Dean accompanied me to the polyclinic at Nelson Bay. Whilst at the polyclinic Dean did not ask for any treatment. 33. I was assessed at the polyclinic by a doctor. I was then observed by camera by a doctor from John Hunter hospital. 34. The doctor from the John Hunter hospital suggested I attend at the Prince of Wales hyperbaric chamber. I was taken by Westpac Rescue Helicopter to the Prince of Wales Hospital. I understand my attendance at the Prince of Wales Hospital was a precautionary measure. I was placed in the hyperbaric chamber at Prince of Wales Hospital for approximately 15 minutes. 35. After being in the hyperbaric chamber for approximately 15 minutes I was advised by the medical staff that I was not suffering from "bends". I discharged myself from Prince of Wales Hospital on the next day. 36. During the courses and other dives that I undertook with Dean he said to me words to the effect "I have suffered the bends whilst diving in the Navy". 37. To the best of my knowledge and belief the Charlestown Dive Academy Charlestown was still operating after the incident of 15 January 2012. I understand the shop has now closed and that Dean is selling equipment for diving on the Internet."
3. This statement was tendered on the basis that Mr Moore was too ill to be cross-examined. However, the defendant brought an application during the hearing to call Mr Moore and/or his wife, ostensibly for cross-examination, but in fact in relation to whether or not he had the conversation he allegedly had with Mr Shorter.

Application to call Mr Moore and/or Mrs Moore

1. During the evidence of witnesses called by the defendant, Mr Reynolds made an application to call Mr Moore: "REYNOLDS: Before I resume the evidence‑in‑chief of Ms Challen during the luncheon adjournment I was informed that those instructing me had made contact with Mr Moore by telephone. I came in at the very end of that telephone conversation and had no more than two or three minutes speaking to Mr Moore. I asked him what his medical condition was, he told me that he has multiple organ failures, he's in a wheelchair, he has a back condition and he doesn't have too long to live. HER HONOUR: We already know that. REYNOLDS: I understand that your Honour. I understand though that he may be able to give evidence; he can speak although he obviously sounds very unwell when he speaks. He can speak and I would contemplate that he might be able to give his evidence by way of telephone. What I was proposing, I'm not sure that I fully understand what Mr Moore has to say at the moment because I didn't have more than a few moments; we had been denied access to him up until now because his wife was concerned about his medical condition and we were being sent medical reports from doctors saying that he was unable to be able to talk to us, and as I say, we have now been able to do that. I was going to ask your Honour this, if we could finish the witness who's before the Court, and I don't anticipate that will take that long. Could I then ask your Honour for an adjournment for a short period of time whilst I get to the bottom of Mr Moore's evidence." (T 394)
2. When I asked what the purpose of calling Mr Moore would be, Mr Reynolds replied that "he could be cross-examined". Mr Hart responded: "I'm not going to cross‑examine a dying man, your Honour."
3. Mr Reynolds then sought to call Mr Moore so that he could give evidence in chief by telephone. Having read the doctor's certificate, I replied: "HER HONOUR: Look, Mr Reynolds. This man is dying, he's got two weeks to live. This is time he should be spending with his family, not on the telephone. Not being cross‑examined. Mr Hart has said, very properly, that he will not cross‑examine a dying man. REYNOLDS: I understand that, your Honour, and it may be, if I will finish this witness and I speak to Mr Moore he may well say to me he is not in a position to get on the telephone. He may say I am in a position to get on the telephone and give some evidence over the telephone. I don't know that and I would want to call him. HER HONOUR: Mr Reynolds, you have produced a statement which has been tendered. REYNOLDS: I'm not sure that it has, your Honour. HER HONOUR: Yes, it has, it's part of exhibit 1." (T 395)
4. Mr Reynolds then sought an adjournment, after completion of his examination in chief of Ms Challen, to speak to Mr Moore. He expressed doubts that the statement was in evidence and challenged his opponent's late concessions as to the statement's admissibility: "REYNOLDS: Yes. If he is capable of giving evidence he is potentially an important witness in the defendant's case. The statement that your Honour speaks about is a statement which was under objection. We put it in our tender bundle. The other side have objected to it. Your Honour will remember there was a motion before the Court as to whether the statement should go in under s 67 or not and we were yet to determine about that. A subpoena has been served on‑‑ HER HONOUR: Mr Reynolds, you're just repeating yourself. You've already said this, is there anything else you want to say? REYNOLDS: I haven't repeated this at all. I'm just saying to your Honour there was a subpoena issued on the doctor to produce his records to show how ill Mr Moore was. As I understand it those records have not been produced." (T 396)
5. The subpoena in question was for Mr Moore's records. As indicated in my exchange with Mr Reynolds as set out above, there was already a medical certificate before the court which could not have been clearer in its contents.
6. Mr Hart responded: "HART: I have instructions, your Honour, to allow the application of the defendant to have Mr Moore's statement admitted as a maker in a civil proceedings who is now unavailable, your Honour. I'm satisfied that the medical certificate before you provided by the defendant demonstrates his unavailability within the meaning of the Evidence Act and that issue is now dead. Thank you, your Honour." (T 397)
7. After hearing further from Mr Reynolds, I indicated that I did not need to hear from Mr Hart in reply and refused the adjournment, indicating that I would give reasons to do so in my judgment. Mr Hart did, however, ask me to note one specific issue, as did Mr Reynolds: "HART: When your Honour gets around to the reasons for this refusal of the adjournment your Honour might refresh your memory from the proposition put to his own expert, the defendant put to his own expert the version of Mark Moore. That is that Mr Shorter knew Mr Moore had struck his head and knew as a result Mr Moore wanted to abort the dive, your Honour. So for some other evidence now to be led potentially from Mr Moore is just simply unfair. So I just thought I'd bring that to your Honour's attention. HER HONOUR: Yes, well thank you for mentioning that. HART: Thank you, your Honour. REYNOLDS: And since we're on that, I'll say this. That was put‑‑ HER HONOUR: No, Mr Reynolds, you've made your submissions. REYNOLDS: No, I've got to respond to that last proposition that was put forward by Mr Hart, namely that it was put to Dr Mitchell, in the terms of the amended pleading, it wasn't the proposition that was accepted by the defendant, it was one that came from the amended pleading. HER HONOUR: Thank you for making that clear. I'll make sure that both of your submissions are referred to in my judgment but for the time being I think we should have the witness back in the witness box don't you?" (T 398)
8. Mr Reynolds asked to reserve his position overnight: "REYNOLDS: Thank you, your Honour. Could I just ask you one more matter in relation to this so that we are clear where we're going? HER HONOUR: Yes. REYNOLDS: If I speak with Mr Moore overnight and it becomes evident that he determines he is capable of giving evidence is your Honour going to preclude me from calling him to give evidence by telephone tomorrow? HER HONOUR: Mr Reynolds, I'm not going to foresee my rulings. I don't have a crystal ball. I have many objects up here to assist in me in arriving at my conclusions but that's not one of them. What I'll do is you bring whatever applications you feel like, Mr Reynolds, but in the meantime what I'm anxious about is completing ‑ you have six witnesses don't you? Well we have to complete them all this week." (T 399)
9. I formally note my reasons for refusing leave to the defendant to call Mr Moore as follows: 1. He was not required for cross-examination and his statement had already been tendered on that basis. 2. Witnesses had already been cross-examined on that basis. 3. The terms of Mr Moore's statement were unambiguous and straightforward, and it had been prepared with the assistance of his own solicitor, not by an interested party, or in circumstances where Mr Moore's grave health problems had been taken advantage of. 4. There was nothing new about Mr Moore saying he: "had been struck on the head by the Tomaree before descending". This was sufficiently well known for it to form part of the factual nexus upon which Mr Coxon prepared his report. The words in italics above are no from Mr Moore's statement, but are taken from page 36A of Mr Coxon's January 2016 report. What was new was Mr Moore's statement that after being struck on the head, Mr Moore told Mr Shorter that he had hit his head and that he wanted to abort the dive; Mr Shorter, rather than allowing him to do so, had told him to submerge and to find the plaintiff to tell him this.
10. The real purpose of calling Mr Moore was, having regard to the above, aimed at challenging his conversation with Mr Shorter. This was information which the defendant had had for some months and the delay in serving the statement, and in keeping the serious state of his health from the solicitors for the plaintiff (who found out that Mr Moore was dying only very shortly before the trial) is unexplained, other than for reasons of forensic advantage.
11. In those circumstances, to require a dying man to come to court or to give evidence by telephone would be little more than "torture" (GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 at 22 - 23 per Young J).
12. Mr Reynolds also indicated he proposed to call Mrs Moore in relation to evidence the plaintiff gave about a conversation he had with her in which he obtained access to the GoPro footage. Mr Hart drew my attention to the following: "HART: I'm just fanning myself, your Honour, because if you go to the defendant's bundle at p 66 there's an email from Emma, who I assume is Emma Challen, to Michael Rumore, one of the solicitors that's been dealing with the case and your Honour might want to read it. But it says, "Hi Michael, I've received a copy of the GoPro footage." Must have been from Mr or Mrs Moore. This is on 18 February 2015. "I've also received a copy of the dive computer printer out from Mark Moore's computer on that day, I will forward a copy of this by express post", now your Honour what that means of course the overwhelming inference that must be drawn is that by March/April, a year ago, more than a year ago, they had all this material and I bet five bucks they had that statement a year and a half ago. REYNOLDS: Which statement? HART: Mark Moore's statement. Because it's not dated, your Honour; you'll notice that, it's not dated. REYNOLDS: I'm not sure what all that means. HART: What that goes to, your Honour, this condition that Mr Moore suffers it just hasn't popped out of the blue. The brief inspection I've had to Mr Burke's records this man has been very unwell for a long period of time, particularly after 2012, and it just beggars belief that this firm of solicitors haven't had that statement, in its form, for more than a year and a half and know that Mr Moore is unwell since that time. It's unbelievably open; it's an overwhelming inference, your Honour. REYNOLDS: I don't understand what all that means your Honour, apart from‑‑ HART: It means that the defendant has known all about this fellow, all about his condition, they've probably prepared his statement for him to sign‑‑ REYNOLDS: That's not right. HART: From the GoPro footage that was sent in March and his profile the overwhelming inference is the defendants have been involved with Mr Moore, been in contact with Mr Moore. It may be a proof of evidence; I'm not saying it is but it maybe, and if he's been unwell for the last two years such that he's now ending his life the overwhelming inference is they knew all of that, not this year, last year, a year ago." (T 439)
13. Mr Moore's statement is dated, in the defendant's index to exhibits, as having been prepared on the date of the accident. That is clearly incorrect, but it is evident that the defendant's legal advisers had been in contact with Mr and Mrs Moore from very early on.
14. There was no controversy involved in the evidence of the plaintiff's visit to Mrs Moore or to the circumstances in which he obtained the GoPro camera. There is no challenge to the GoPro footage accuracy by the defendant.
15. Mrs Moore's husband was dying in circumstances where her absence from his side could have been problematic. The circumstances in which her evidence was relevant to these proceedings was unexplained. It was eventually resolved by having a statement of her evidence tendered (Exhibit 2, T 488). The contents of that statement add little, if anything to the case and played little or no part in final submissions.

The provision of oxygen to Mr Moore and the plaintiff and the return trip home

1. The plaintiff was categorical in stating that there was no other oxygen for use on board the Tomaree and there is no evidence, on the GoPro footage, of there being any offer of other oxygen. The plaintiff helped himself to oxygen from Mr Moore's pony bottle. The evidence of Mr Shorter on this issue is set out below.
2. The plaintiff was challenged in his description as to how long the trip back took. He was clearly preoccupied during this trip with Mr Moore, and a consideration of his evidence on this issue needs to take this into account. However, the evidence of his girlfriend, Ms Hetherington, confirms his description of the trip taking a longer time than that claimed by the defendant; this is set out below.
3. The plaintiff's account of what occurred on that day also conforms to the report he put in to PADI two days later. This account is of significance for two reasons. First, it is a largely contemporaneous account. Second, it is clear from this document that, while the plaintiff is reporting Mr Moore's injuries, he is not reporting any injury that he himself has suffered.

The plaintiff reports the incident to PADI

1. The plaintiff reported the incident to the diving authority PADI on 17 January 2012, two days after the incident. The relevant contents of that report are as follows: "Social dive to SS Oakland on Sunday 15/1/12. My dive buddy was Mark Moore. We were the last 2 divers in the water as other divers had descended with Go Dive Guides. Mark was diving in new equipment but has previous twins + deep experience with 100+ dives. Depth was 26.3 mtrs on this dive on 33%. We descended but Mark obviously had problems with gear configuration on the bottom. I removed his sling tank as his weight/balance was awkward. He also had mask problems and task loads with new equipment including camera + new bag. He was still showing signs of awkwardness. I removed hood + camera. He was having problems with mask and balance still. I adjusted mask as he was having problems clearing it as his nose was pretruding [sic] underneath. The dive was then aborted by Mark. He gave the impression of narcosis but has previously dived to 40 mtrs with me before. We ascended to approx. 16 mtrs + swam back along the wreck to the mooring line. He was still swimming awkward + breathing rapidly. We continued towards shot line to do safety stop. We had no [illegible] obligations. When I turned around to check him I observed him rising to service [sic: should be 'surface'] (approx.) 12.8 metres. I swam after him trying to vent his any my [illegible] inflator + slow ascent. We both surfaced without safety stop. I saw he was breathing nut not responsive. I attracted Adam Shorter's attention + towed Mark approx.. 10 - 15 mtrs to boat while talking to him to keep mouthpiece in as it was choppy to [sic] which he did I believe. At the boat I removed my equipment (single tank) + Mark's (twin tank) while Adam held him above water. Inflated + jettisoned the twins for later retrieval. At this period Mark was still unresponsive. I proceeded to lift him out of the water with assistance of Adam up the boat ladder. During this period Mark became responsive and assisted himself up the ladder with us. We laid him down. Put him on O2. He requested to sit up as was OK. Kept on O2 till arrival at hospital (Nelsons Bay). They contacted RPA for advice. Send [sic] to RPA by Westpac helicopter as precaution for treatment. Released following day. As since reported nil DCIS diagnosis salt water aspiration."
2. The plaintiff's evidence is corroborated by the evidence of his girlfriend, Karen Hetherington.

The evidence of Karen Hetherington

1. Ms Hetherington was the plaintiff's girlfriend at the time, and is now his wife. Her evidence sheds some light on the terms on which she had joined the plaintiff on the dive.
2. When asked how she came to be on the boat, she said: "Q. Just to deal with how you came to be on the boat, was that something you had to arrange through Dean's shop? A. Yes. Q. Was there a price to pay to get on board that dive? A. Yes. Q. Did you pay that price? A. Yes. … Q. What was the plan in terms of you and Dean going on that dive; what was the initial plan? A. We were supposed to dive together." (T 358)
3. Ms Hetherington said there were two groups on the boat, one of which was the group organised by the plaintiff's company and the other by Lets Go: "Q. And you know one of the groups was a group of people who had come through the Charlestown diving centre? A. Yes. Q. Can I take it from what you say the other group was organised through Lets Go? A. Yes, that's correct. Q. The group that you were with, Lyn Perry and the others, did you know the Charlestown dive people before you got on board the boat? A. Correct, yes. Q. Then the other people who formed the other group did you know them before you got on board the boat? A. No. Q. Was the Charlestown diving group, did it remain as a group or did it mingle with the other bunch of divers when they were about to do the dive? A. I mingled a little bit; I was talking to a guy that wasn't even in our group, so. Q. What about the dive itself; were you diving only with the Charlestown divers, or did you go off and dive with the other group as well? A. I was diving with my buddy." (T 374)
4. The diving group was led by a Lets Go diver: "Q. In relation to that last matter, was there someone from Lets Go Adventure leading the dive? A. Yes." (T 374)
5. Ms Hetherington did not observe Mr Moore in trouble until about half way through the dive. She completed the dive and the first she knew there were problems was when she saw the plaintiff using an oxygen bottle: "Q. Did you notice anything about his person; what was he doing at that time? A. Dean himself? Q. Yes? A. He was sucking on nitrox. Q. What was the colour of that bottle, can you recall? A. Yellow. Q. Did you go up and stand near him, or go up to where he was? A. Yes, I walked in and gave him a hug, and I asked him why‑‑ Q. Asked him why? A. Why he was sucking on nitrox. Q. Did he tell you; what did he say? A. That him and Mark came up without decompressing. Q. Did you observe Mr Moore at that time? A. Yes. Q. What was he doing at that time? A. He was on oxygen." (T 362)
6. She did not recall any oxygen being offered: "Q. Did you take any time to look around in the wheelhouse to see if there were any other sources of oxygen having observed Mr Barrett using the nitrox bottle or not? A. No. Q. Did you see any other sources of oxygen in the wheelhouse? A. No. Q. Did you hear anyone that was operating that tour, Mr Shorter who drove the boat, or any of the other people that were there employed by Lets Go Adventures for the recreational tour even say anything about other sources of oxygen being available for Mr Barrett or Mr Moore? A. I don't recall. Q. You don't recall? A. I don't recall any of that being said." (T 363)
7. She was the first diver to get back on the boat. She recalled there being a delay while the other divers got on board: "Q. In terms of the time it took, after you got on the vessel, do you recall what was involved, if anything, that was a bit out of the ordinary in terms of the vessel returning to Nelson Bay; the time it took or the things that had to be done to get back to Nelson Bay, do you recall anything unusual about returning to Nelson Bay? A. The only thing really is we had to wait for everyone to get out of the water. Q. Anything else? How long did that take after you got on board, do you recall? A. I can't recall. See everyone else was doing their deco stops after us, so. Q. You were up first? A. Yes, I was the first one up ‑ I was the first one in‑‑ Q. After from Mr Barrett and Mr Moore you were the first one back? A. Yes. Q. Are we talking minutes, ten minutes, 20, 30 an hour, how long would it have taken do you think, doing the best you can, to get everyone else on board to start with, after you, how long would that have taken do you think? A. Probably minutes, ten minutes. Q. And then did the vessel have to do anything else before you left? A. Disconnect from the anchor. Q. Do you recall the time it might have taken to get back to the d'Albora Marina from the wreck site? A. I don't recall." (T 363)
8. Ms Hetherington remained outside the cabin while the plaintiff and Mr Shorter were attending to Mr Moore. She did not see the plaintiff, on the trip back as he was inside with Mr Shorter and Mr Moore all that time. She was not asked for any more precise description of the oxygen on board, or whether there was additional oxygen outside the cabin. I also note that none of this evidence is covered by the GoPro footage, which only shows what occurred in the cabin, and not for the whole of the time.

The evidence of Ms Emma Challen and Mr Adam Shorter

1. This brings me to a consideration of the defendant's evidence. As Ms Challen described the oxygen equipment and the circumstances of the filling out of the invoice, it is helpful to set out her evidence first.

The evidence of Ms Emma Challen

1. Ms Challen, Mr Shorter's partner in the business and in private life, became a PADI-accredited instructor in 2005, a staff instructor in 2007 and a master instructor in 2008. She also qualified to teach a nitrox course in 2006 and as a deep diving instructor as well as holding instructor trainer qualifications with SSI.
2. When they purchased the business, it came with two boats, one of which was the Tomaree. The boat had to undergo an annual survey by Roads and Maritime Services in order to operate as a diving vessel. That included checks of the safety equipment, which included a life raft, life jackets, emergency equipment and oxygen: "Q. Then you said there was some oxygen equipment? A. Yes, there was. Q. What was the oxygen equipment that was on the boat in January 2012? A. There's an oxy viva 3 which has a C size cylinder attached to it. There was also a D sized cylinder and a regulator to go with that. Q. How long had those pieces of equipment, the oxy viva 3 and the D sized cylinder with the regulator for it, how long had they been on board the boat relative to when you purchased the boat and the business? A. Adam and I purchased the oxy viva 3 when we bought the business. Prior to that it was just the D sized cylinder and the regulator, so we added the oxy viva 3. Q. Whereabouts on the boat was the oxy viva 3 kept? A. It was usually kept just below the bench on the floor, just inside the door of the cab." (T 381)
3. The "cab" (or cabin) was the wheelhouse, which can be seen in the GoPro video at the end. Ms Challen described where the oxygen was kept: "Q. Are you able to inform us whereabouts the first aid equipment and the oxygen equipment were kept by reference to what you see in that photograph? A. Yes. As you go through that door on the left‑hand side there is a bench. On top of the bench is the red backpack with the D sized cylinder on top of that and its up against that window you can see. Then on the floor, directly in front of that, that's where we kept the oxy viva." (T 382)
4. The oxy viva unit, which permits resuscitation, suction and oxygen therapy all in the one compact unit, and the D sized cylinder, were for use for divers requiring oxygen.
5. Ms Challen identified the oxy viva kept on the Tomaree as that shown in Exhibit 1, photo 87, and said that this was the unit purchased in 2010, which was still in use in 2012; the masks had, however, been replaced since that time. She said that the oxy viva equipment was kept on the boat permanently (T 385) but the cylinders had to be replaced.
6. Underneath the unit in the photograph was a C-sized oxygen cylinder which was used with the oxy viva unit. The oxy viva unit had a contents gauge which showed how full of oxygen the device was, and had two masks which could be attached. Next to that were the parts for the suction unit. There were two levers on the right‑hand side where the user of the oxy viva could either turn on the therapy or instead use the suction. The gauge ensured continuous flow of oxygen once the mask was held to the face.
7. The box could be closed securely but not locked. Ms Challen used it to teach the oxygen provider course, and thought the last time that the box had been opened had been "in December some time" before the accident date.
8. Ms Challen was asked about the arrangements it was necessary to make to remove and replace the oxygen cylinders and she replied: "A. It depends on the circumstances. We have three C size cylinders, one on Dive Away, one in the shop, and one on Tomaree. So if we needed to get a full cylinder on there straight away we could swap one out within the shop. We've also got three large G size cylinders in the shop so we can fill up the cylinders. And then if it's entirely empty we can take it to BOC and swap it out the same way as you do with a gas cylinder for your barbecue." (T 385-386)
9. Ms Challen also identified the D-size cylinder: "Q… Could I show you one more photograph, and this is again from exhibit 1 and the number is 88 on the bottom right‑hand corner. Could you have a look at that photograph, I think firstly that shows the oxy viva 3 system on the floor and then something standing vertically next to it, what's that that's next to it? A. That's a D size cylinder. Q. I think you said earlier in your evidence that there was a D size cylinder kept with the first aid equipment, is that the type of cylinder that you were speaking about when you said about the D size cylinder in the first aid kit? A. That's the size of the cylinder, yes. Q. And I think you said you had a regulator that would fit onto the D sized cylinder? A. Yes, we did. At that particular time, in 2012, it was a bull nosed fitting, or a DIN fitting, and the regulator that fit on that was a DIN fitting." (T 386)
10. Ms Challen explained how the D-cylinder differed from the oxy viva: "A. That cylinder there you can see is actually a DIN fitting for that cylinder. The regulator we now have on board, because we've updated our equipment obviously in four and a half years, is not a pin index system which is the same attachment which is on that oxy viva 3. Q. The oxy viva 3 could it accommodate two people using it concurrently? A. Yes, it can. Q. The D cylinder with the regulator that you had in January 2012, so that's the D cylinder that you had in 2012, and the regulator that went on that cylinder in January 2012, how many people could it accommodate‑‑ A. Two. Q. ‑‑concurrently? A. Two. Q. How would that provide oxygen to those persons, would it be continuously or in some other way? A. One would be a continuous flow, the other one would be on demand. (T 386)
11. Ms Challen was the person who raised the invoice for the plaintiff and his group to go diving. She knew the plaintiff well, as he had taken groups diving or used the store "for many years" (T 389) and had been on the boat "probably 50-odd times" (T 389). She also knew most of the divers. She described the arrangements for the plaintiff on the invoice as follows: "Q. You'll see the first one shows Mr Barrett is a free ‑ no charge for Mr Barrett, correct? A. That's correct, an FOC we call it in the industry. Free of charge. Q. Free of charge. Then the others have got a unit price with a discounted price to the right? A. That's correct. That's the settlement discount that we give if the invoice is paid within a reasonable timeframe. Q. It says on the invoice it was paid within seven days, is that what you're referring to? A. Yes. There is some latitude to change those seven days if somebody speaks to me about that. Q. But if it's not paid within the seven days then you retain the right to charge the full price? A. Correct." (T 390-391)
12. The arrangements for qualified persons to be on the boat supervising the dive were to be as follows: "Q. On this particular day there were two ‑ there were three actually weren't there, three employees of Lets Go Adventures who were going to accompany the divers on the boat? A. That's correct. There was‑‑ Q. One was Mr Shorter? A. That's correct. Q. He is ‑ his role was the coxswain wasn't he? A. That's correct. Q. He was to control ‑ steer and control the vessel? A. That's correct. Q. As far as you were aware it was not the intention for Mr Shorter to get into the water? A. No, definitely not a skipper. Q. Then there were two other persons that were accompanying him. Once was a man named Rowan Jeff? A. Correct. … Q. He was a qualified diving instructor wasn't he? A. Yes, he is. Q. There was another one named Horatio Noble, N‑O‑B‑L‑E? A. That's correct. Q. He was commonly known as Horrie? A. Horrie, correct. Q. He was a dive master? A. Yes, he is. Q. Both of those were employees of Lets Go Adventures? A. Yes, they were." (T 391)
13. Before departure, there was a safety briefing, during which the contents of a safety card were read out to those going on the dive. This was also kept on the clipboard where the dive manifest was kept. Ms Challen said that the dive site was often used, and was about 20 minutes away, although it might take 30 minutes depending on the swell and the wind.
14. Ms Challen learned of the incident more or less when it happened, and arranged for Mr Moore's wife to be at the dock. She was aware that Mr Moore was taken to hospital with possible decompression problems.
15. However, Ms Challen made no report of the incident, or even a file note, despite being aware of paragraph 17 of the PADI manual which required Mr Shorter and/or the defendant to do so: "Q. Go to page 17 under administrative procedures. See that? Paragraph 3? A. Yes, I can see that. Q. Can you read that out please? A. Okay. "Submit an incident report to PADI any time you witness or are involved in a diving accident or incident. This includes all incidents of whether they are training related or recreational or seemingly insignificant at the time. File the report immediately after the incident to ensure that important information is not forgotten." Q. That never happened did it? Did it? A. Yes, Dean Barrett - " (T 408)
16. She then claimed to have made a telephone call to PADI and to have been told that it was not necessary to do so: "Q. Just answer that last question. The answer to that is "Yes, we did make a submission to PADI or we sent off a form to PADI and here it is or no we didn't? A. I made a phone call to PADI and to both SSI to let them know there had been a scenario on the boat where another dive shop was using our boat to dive off‑‑ HART: That's just not responsive, your Honour, I'm sorry. HER HONOUR: Yes, look the answer‑‑ WITNESS: I was advised that as the group‑‑ HER HONOUR Q. No, the thing is this, did you make ‑ it's your question and the answer to that is yes or no. All right, so did you make a ‑ what is it? HART Q. Did you prepare and give to PADI an incident report or not, in writing? HER HONOUR Q. In writing? A. In writing? No, I did not." (T 409)
17. Documents from PADI were under subpoena. The only document produced was the plaintiff's report of the accident.
18. Mr Hart took Ms Challen through the whole of the PADI incident report form. Ms Challen conceded that most if not all of those steps (which included equipment checks, rescue procedures and preserving relevant material and information) had not been taken (Exhibit HH). She also acknowledged that no diving entry records were kept for the plaintiff or his girlfriend: "Q. Is it not obvious to you that there are no entries for Dean Barrett, in, out, depth or bottom time or can you not see that? A. I can see it. Q. Is there any entry there? A. Under those ones, no. However‑‑ Q. Thank you, all right Mr Reynolds can explain all that stuff, that's fine. Karen Hetherington, is there anything missing for her? A. You can see that the in time is incomplete and obviously there's a depth and a bottom time there. Q. Is there an out time? A. No." (T 417)
19. The same was the case for Mr Moore: "Q. It's not there is it? A. No, it's not. Q. That's important information to know because he was a person that was suspected of suffering a decompression illness, correct? A. Yes. Q. He's the person, isn't he, that was sent to Royal Prince Alfred or whatever it's called in Sydney for possible hyperbaric treatment, correct? A. With his dive computer, yes. Q. Well you know that don't you, so why would you not put it on here? A. Firstly this is not filled in by me, it's filled in by dive staff. Q. Sorry, I beg your pardon, so you take no responsibility for this, is that right? A. I'm not saying that." (T 418)
20. Ms Challen's explanation for these missing records was unconvincing, as was her inconsistent claim that there was no need to contact PADI but that she had made a phone call nevertheless, only to be told the same thing. This was a potentially serious injury; the plaintiff was taken to hospital by helicopter and the potential for him to have suffered injury of a serious kind was significant.
21. Mr Shorter, like Ms Challen, claimed to have a good recollection of events in circumstances difficult to accept, given the failure to make a note of the events, make a report to PADI or even to keep essential information relating to the events of the day in question.

The evidence of Mr Shorter

1. Mr Shorter gave very precise evidence in chief, but significant parts of it unravelled in cross-examination when it became evident that his recollection showed signs of reconstruction. For example, he said at T 449 that he had a clear recollection of helping Mr Moore put his diving gear on, but was unable to describe it when asked to do so in cross-examination. Unlike the plaintiff, he did not record these events immediately in a report for PADI, or indeed at all.
2. In his evidence in chief, Mr Shorter was not asked about Mr Moore hitting his head or about the conversation attributed to him by Mr Moore. He said that after the divers left the vessel in the usual way, he sat down in the cabin looking for music to play. He said that he was also scanning the horizon, but his principal activity was looking for and playing music. The first he knew of any trouble was when the plaintiff came swimming up to the boat holding on to Mr Moore.
3. Mr Shorter agreed, in evidence in chief, that the plaintiff had had to bring Mr Moore out of the water, although he said he had assisted: "Q. How did Mr Barrett help Mr Moore up the ladder, did you see that? A. Yeah, we had Mr Moore's like hands on Mr Barrett's shoulders. Q. Where was Mr Moore in relation to Mr Barrett's back? A. Yeah, behind Mr Barrett. Q. Then how did Mr Moore and Mr Barrett get up the ladder? A. They sort of walked up, they walked up the ladder. Q. Did they get onto the boat? A. Yes." (T454)
4. His description of the assistance he rendered to the plaintiff and Mr Moore shows how minimal this was, and that there was no one else to assist, as even the other divers were still in the water: "Q. The right‑hand. Thank you, that can be returned. I think you said you got the ‑ you had the oxy viva system, what did you do then after you put him on the dive rack and you had the oxy viva system, what did you do then? A. Asked Dean if he was okay. Q. Yes, what did Mr Barrett say? A. He said he was okay. Q. What happened then? A. Just monitored Mr Moore and monitored the situation. Q. Where were the other divers at that stage? A. Still in the water at that stage." (T455)
5. I note that the conversations the parties had while in the cabin are recorded by the GoPro camera and, where this differs from Mr Shorter's account, I intend to prefer the GoPro recording.
6. Mr Moore was given oxygen. There was no one else from the defendant's team present to help Mr Moore other than the plaintiff, as Mr Shorter had to go and help the other divers get back into the boat. This took some time, according to Ms Hetherington. During the whole of that time, the person in charge of looking after Mr Moore was the plaintiff: "Q. Did you do anything with those divers? A. Yeah, Dean stayed with Mr Moore and I helped the other divers get back on the vessel. Q. What did that involve you having to do? A. The gear was getting passed up to me, me stowing gear, instructing gear, a lot of people were getting their gear off. Q. Did the divers that were coming out of the water get onto the boat in some order? A. No, not what I can think, no." (T 456)
7. However, Mr Shorter said that "one of the staff members" was able to detach the boat from the mooring line while the plaintiff was looking after Mr Moore.
8. The boat was still not ready to leave because Mr Moore's gear was still in the water. The boat crew started to look for it. It was fortunately located quite quickly but during this time as well, the plaintiff was the person looking after Mr Moore. All this paints a picture of delay while Mr Moore is taking oxygen and the plaintiff is looking after him, unassisted by either Mr Shorter or the other employees, Mr Jeffs and Mr Noble.
9. Mr Shorter then returned to the marina "at full speed" (T 457) while the plaintiff continued to look after Mr Moore, and was relieved to see, while the plaintiff was looking after him, that Mr Moore looked "heaps better" (T 457). The plaintiff, he thought, "looked fine" (T 458) and "normal" (T 460).
10. Mr Shorter did not complete the dive log because he "wasn't the diver involved in that accident" (T 461). He said he had never discussed the case with anyone and agreed he had only his memory to go on.
11. Mr Shorter also said that he had never seen Mr Moore's statement and knew nothing of its contents. His lawyers had never told him about the conversation Mr Moore said he had with Mr Shorter: "Q. Have you ever been told about what that statement says? A. No. Q. Never? A. Not that I can recall. Q. Are you aware of what Mr Moore alleges what happened on this day or not? A. No. Q. Are you saying that you're sitting in this witness box and your lawyers haven't shown you the version of Mr Moore of this event, is that true? A. That is true. I have not seen Mr Moore's statement. Q. That's incredible. Have you been told about what it says? A. No. Q. So you're sitting there for the first time‑‑ A. I don't know what‑‑ Q. Let me tell you what Mr Moore says. A. I don't know what you're talking about. Q. All right, well I'm going to put it to you? A. Okay. Q. This is what Mr Moore says in his statement. A. Okay. Q. And then we're going to deal with whether it's true or not. Mr Moore says, amongst other things, that shortly after he entered the water he had ‑ his head was struck by the bow or part of the vessel. You never heard that before today? A. No. Q. Never? Are you seriously telling me you've never heard that version? A. Not that I can recall, no. I can't recall that. Q. I'm asking you not whether that happened or not, I'm asking you if you've ever been told that by ‑ that Mr Moore alleged that? Are you telling me you've never been told that? A. By whom? Q. By your lawyers? A. No. Q. Okay. Mr Moore then says in his statement that after he'd struck his head that he spoke to you standing on the vessel and wanted to get out of the water. Has anyone ever told you of that version of Mr Moore's evidence? A. No. Q. Never? And that Mr Moore was told by you that he needed to go back down under the water to catch up with Mr Barrett to tell him because you said to him "He's your diving buddy, you need to tell him if you're getting out of the water". You've never been told that Mr Moore alleged that before I've just told you then, is that what you're saying? Is that literally what you're saying? A. Yeah. Q. Well I put it to you that's in fact what happened, that Mr Barrett and Mr Moore were the last to go in the water. The reason was that Mr Moore had quite, I don't know expensive, detailed, difficult equipment to wear. He had a drysuit on, do you remember that? A. No, I don't remember. Q. You don't remember what he was wearing do you? A. I do, in some of it but not all of it. Q. So some things you've forgotten, correct? A. I don't remember him wearing a drysuit. Q. Assume it was a drysuit. Do you agree with me you've forgotten he was wearing a drysuit? A. (No verbal reply) Q. It's a pretty simple question. Do you agree or not agree with the proposition that if he was in fact wearing a drysuit, that as you sit today you've forgotten that? Do you understand that question? A. I do understand that question. Q. What's the answer? Do you agree that you must have forgotten that if that's in fact what he was wearing? A. Well if I don't remember it I can't say that he was or wasn't, I don't remember that. Q. So you have forgotten that and you agree then don't you‑‑ A. That's what you're saying. I don't remember." (T 466)
12. Mr Shorter's demeanour at this stage of his evidence changed. He appeared disdainful of questioning and then became angry, as the following excerpt from the transcript shows: "Q. Do you think it is a joke? A. No, I don't. Q. Well let's just focus on what I'm asking you and we'll get out of here real quick? A. Okay. Q. Do you agree that if Mr Moore was in fact wearing a drysuit, that you'd forgotten that now or not? A. If he was wearing a drysuit? I can't remember. Q. So you have forgotten that aspect of that event, correct? A. Suppose so. Q. See that shouldn't have been so torturous should it, we don't have to have this argument, let's just get to the facts? A. I'm not arguing, you're the one who is getting aggressive. Q. So this is in fact what happened. I'm going to put it to you this is in fact what happened and you can agree or disagree. What in fact happened was that Mr Moore, shortly after he entered the water, hit his head or was struck by the vessel. He told you that he'd struck his head after Mr Barrett had already started to proceed off. Do you understand those words? A. (No verbal reply)" (T 467)
13. Mr Shorter then did not answer several questions, and complained that he found Mr Hart "confronting" (T 467).
14. Mr Moore put to the witness that his apparent vivid recollection of Mr Moore saying to the plaintiff, while he was putting on his wetsuit, that he felt uncomfortable about the dive, was inconsistent with his inability to remember other factual material, such as what Mr Moore was actually putting on and that, in those circumstances, it was likely that Mr Moore had said those words to him: "Q. Is it possible, like the drysuit issue, that you've forgotten that Mr Moore said those words to you from the water? Is it possible? A. No. Q. And you're adamant about that are you? You're adamant that that answer is correct? A. I don't remember anything like that at all from my memory. Q. Is it possible that you have forgotten it? A. I don't think it's possible. Q. It might be possible you've forgotten it? A. It might rain tomorrow. Look‑‑ Q. Just answer the question. Is it? It might be possible but you've forgotten he said that to you from the water? A. I don't ‑ I don't recall that happening at all." (T 468)
15. He went on to acknowledge, however, that anything was possible: "Q. Mr Reynolds will ask you the reasons why you think you couldn't have forgotten, but you do accept that you forgotten he was wearing a drysuit, correct? A. I didn't ‑ I wasn't aware that he was wearing a drysuit. Q. You'd forgotten he was wearing a drysuit? A. Okay. That's what you're saying. I can't remember if he was wearing a drysuit or not. Q. But you do remember Mr Moore being uncomfortable about the dive, correct? A. Yes, I do. Q. And I'm putting to you that possibly because of the trauma of that day that you've mixed up when he said that to you that maybe he was in the water when he said he wasn't comfortable and wanted to get out, and maybe you said, "Are you going to be all right, you should go and tell Dean", is it possibly that was how it happened, is it possible? A. I don't think so. Q. Is it possible, that's all I'm asking you; that you've confused that and in the trauma of the day you've mixed that up, is that possible? I'm not asking you, are you lying anymore, we've got past that; I'm just saying is it possible that you've confused this event, this idea of being uncomfortable? A. I don't think so. Q. Is it possible, yes or no? A. Anything's possible." (T 469)
16. A similar line of questioning, with similar results, was put to Mr Shorter about the plaintiff using Mr Moore's pony bottle for oxygen. It is frankly hard to credit Mr Shorter's description in evidence in chief that the plaintiff simply appeared fine when the GoPro shows the plaintiff saying that he is using this oxygen and Mr Shorter is heard to say encouraging words.
17. Nor is it to Mr Shorter's credit that, with an obviously ill man on board, and another diver actively looking after the ill diver, he never checked the warning dive computers for either of them (T 471-472). The defendant, according to the warnings read out to the divers, was in possession of emergency equipment, and the defendant had obligations to Mr Moore and to the plaintiff whatever their status as consumers. The same would have been the case if the defendant's employee Mr Jeffs, who was leading the dive, had got into trouble in the water.
18. Although Mr Shorter acknowledged that he had training to pick up the danger signals for divers, and agreed that he had seen some of those symptoms, he continued to deny that anything was wrong: "Q. Do you remember anything about Mr Barrett, his person and what he did, that would indicate that he had any type of breathing distress? A. No. Q. Would you think coughing is breathing distress? A. It might be. You want my opinion, I'm not a doctor but in my opinion is that‑‑ Q. In your experience in diving, and the knowledge that you had in diving, by the way are you qualified in diving? A. Yes. Q. In that experience have you ever learnt or heard an expression called "respiratory distress" do you know what that means? A. Yes. Q. What does it mean? A. You're respiratory system could be not ‑ you're not breathing correctly. Q. Coughing is respiratory distress, correct? A. I suppose so. Q. If a diver comes up and just assume these things; if a diver came up and he's profile indicated he'd missed a safety stop and decompression stop and there had been alarms on his computer, and he was coughing, as a diver would it cross your mind that he had maybe a decompression illness? A. At that time, no. Q. I didn't ask you about that time, I'm asking you to adopt these assumptions. If a diver came to the surface and he had a safety stop alarm, a decompression alarm, came to the surface and he was coughing as a diver would you agree with me that he had a potential or a possible decompression symptom? A. No." (T 472)
19. Mr Hart put to Mr Shorter that he was simply in denial, and put the transcript of the GoPro footage to him: "Q. I put it to you that in the way you've answered that question that you're simply in denial and trying to advance the case for the company; that it's not an honest answer, it's not a considered or honest answer, what do you say? Do you deny that? A. What are you talking about? Q. I'm going to ask the question one more time and I'm going to give you one more chance, do you understand? If a diver reaches the surface and you're near him, and you knew that his Galileo sol computer had sounded a safety stop alarm and a decompression alarm, and that diver on the surface was coughing, not because he ingested seawater, that would in your mind as the diver nearby indicate a possibility that he was suffering decompression illness, do you agree with that or disagree with that, that it was possible? A. Possible. Q. You've read this transcript haven't you? A. Yes. Q. I want to take you to page 9A, if you look at the right‑hand top corner and if you go to paragraph 63; you have listened to the audio haven't you? A. Yes. Q. It seems to be that according to our interpretation of it, and I mean the plaintiff's interpretation and it doesn't seem to be disputed in any great degree, but at one stage you said, at 33.21 and that's 33 minutes and 21 seconds, I want you to assume that, do you see that, those numbers? A. Mmm‑hmm. Q. "AS" is you, Adam Shorter, correct, right, I just want you to assume that. You said the words "just relax the Mark" or MM means Mark Moore "you look heaps fucking better dude" do you agree you might have said that? A. I agree ‑ yes, I said that." (T 473)
20. Mr Shorter went on to admit, sometimes reluctantly ("It might have happened" - T 474' "he could have said that" - T 475) that the contents of the GoPro transcript were all correct. He continued, however, to say that this was all the plaintiff's problem, and not his (T 476 - 477).
21. Crucially, he was unable to demonstrate where the extra oxygen was: "Q. You agreed with me that Mr Barrett was on the nitrox, the yellow bottle, do you agree with that? A. Yes. Q. At the same time Mr Moore was on the oxy viva C cylinder? A. Yes. Q. It's true, isn't it, you never said to Mr Barrett, and you can tell Mr Reynolds why you didn't say it, but you never said to Mr Barrett "Oh, by the way we've got a D cylinder there with a regulator ready to go, why don't you suck on that" you never said that do him did you? A. No. Q. And the reason you didn't say that is the D cylinder wasn't there, was it? A. No, it was. Q. But you never told him where it was, did you? A. No, I didn't tell him where it was. It was there. Q. Sitting on the bench? A. Yes. Q. You've seen the GoPro footage haven't you? A. Yes. Q. It's not even there is it; you can't see it anywhere can you? A. What I ‑ looks like to me it is. Q. The bench he's sitting on, Mr Barrett and Mr Moore are sitting on there, if it was there you never hooked it up for anyone did you? A. No. Q. And I put it to you that the oxy viva unit had run out by the time you got to Tomaree, correct, the C cylinder? A. Say that again? Q. The C cylinder had run out by the time you got Tomaree back to the d'Albora marina the oxy viva unit had actually run out, the C cylinder, hadn't it? A. I wasn't aware of that. Q. It's possible it had run out, correct? A. I don't know. Q. Is it possible that it had run out, or not? A. I don't know, I don't think so, no. Q. Is it possible that it had run out, or not? A. No. It lasts for 38 minutes. Q. We can do the numbers, let's go back to the numbers, but I'll just put this to you, that when Mr Moore went off to hospital you certainly didn't give him the oxygen to go off the boat with did you? A. I can't remember that. Q. You don't remember if he walked away with the oxy viva unit attached to his face; you can't remember that? A. No. Q. Obviously that didn't happen then, did it? A. I don't know. Q. You'd remember it wouldn't you? A. Probably. I don't know. Q. Obviously probably it didn't happen that way because what happened in fact is that you sent him off with his nitrox bottle to hospital, correct? A. I don't recall that. Q. You don't remember? A. I don't remember. Q. It's possible though, isn't it? A. It could be. I don't know. Q. You certainly didn't send either Mr Barrett or Mr Moore off with the oxygen that you say was on the vessel, correct? A. The oxy viva unit, is that what you're talking about? Q. Or the D cylinder for that matter? A. No, they didn't leave with the D cylinder. Q. You didn't offer to them, to say, "Look, you better stay on these while you go to hospital" did you? A. No." (T 481 - 2)
22. He acknowledged, reluctantly, that he had not set this oxygen up, or given it to Mr Moore to take with him to the hospital: "Q. And you never connected the D cylinder, did you? A. I didn't assemble the unit. Q. And you didn't give them oxygen to get in the car that Mrs Moore had brought to go the Nelson Bay Polyclinic, did you? A. Say that again? Q. You didn't give them the oxygen from the boat to take with them to the Nelson Bay Polyclinic, did you? A. I can't remember if it was taken or not, so I can't answer that. Q. You certainly never connected the D cylinder up, so it was either the oxy viva unit or nothing, wasn't it? A. Well the oxy viva unit I can't remember if it was taken or not. Q. It probably wasn't though, doing the best you can to remember? A. I can't remember. Q. Have you seen the photographs that have been produced by your solicitors relating to what is alleged to have been on the boat in terms of the D cylinder and all that stuff, have you seen the photographs that are in the bundle, or not? A. I have seen some photographs, yes. Q. It's true, isn't it, that there's no adaptor in there anywhere in those photographs‑‑ A. Which photograph? Q. ‑‑that would show us how the D cylinder was connected on the day, or how it would be connected now, correct? A. No." (T 483)
23. Taking all of the above into account, I am satisfied that Mr Shorter not only neglected both the plaintiff and Mr Moore, but never connected or set up the extra oxygen he claimed was on board. I am satisfied that this oxygen was not there. I am also satisfied that Mr Shorter knew that Mr Moore had been injured because he hit his head, and that the conversation Mr Moore deposed to did occur. When Mr Moore was injured, Mr Shorter compounded his wrongdoing by not offering the necessary emergency equipment, thereby putting the burden of this onto the plaintiff, who was himself physically affected by the rapid ascent, the shock of these events, the physical exertion of getting Mr Moore out of the water and the distraction of having to look after Mr Moore for a considerable time instead of considering whether he himself was unwell.
24. Mr Hart submits that if I find Mr Shorter not to be a witness of credit, then that is the end of the case. While I would not want the findings of fact solely to rest on his credit, the fact remains that his evidence is inconsistent with the accounts given by the plaintiff in his report to PADI, Mr Moore's statement and the GoPro footage, in circumstances where his own lack of contemporaneous records is noteworthy. In particular, I do not accept Mr Shorter's failure to complete the dive log as acceptable; that issue alone is a significant problem for his credit.
25. Taking all of the above into account, I would not accept Mr Shorter's evidence unless it was corroborated and I do not regard Ms Challen as reliable.
26. The defendant also called a former employee who was the dive instructor for the day. His evidence supported the account of the plaintiff.

The evidence of Rowan Jeffs

1. Mr Jeffs was the dive supervisor employed by the defendant, and his job on the day was to look after the other group of divers. He gave evidence by telephone.
2. Mr Jeffs said he had little recollection of the events, but was able to give a general outline. He said that he did not recall seeing the first aid equipment being out or used: "Q. I'm talking about the first aid at the moment? A. No, I don't recall seeing the first aid personally. Q. What first aid ‑ you mentioned oxygen? A. Yes. Q. What were you talking about then? A. So the boat has first aid and oxygen on board, kept on board all the time. So the oxygen unit was ‑ I saw the oxygen unit obviously on the way back in when Mark Moore was breathing on it. Q. What was the form of that oxygen unit, did it have a name that you're familiar with? A. Yeah, oxy viva. Q. Apart from the oxy viva system did you see any other first aid oxygen on the boat that day? A. I don't recall on that day but standard practice is that there's spare cylinders on the boat but I didn't set the oxygen unit up personally so I didn't see the extra cylinders. Q. You said you saw Mr Moore on the oxy viva system? A. Yes. Q. When was that? A. When I exited the water he was in the cabin breathing on the oxygen unit. Q. Had you seen him on that system before he was in the cabin? A. No. He was in the cabin as I boarded the boat." (T 494)
3. He saw the plaintiff and Mr Moore sitting together and noted Mr Moore was coughing and on oxygen. He did not refer to seeing Mr Shorter at all.
4. Mr Jeffs' evidence, like that of Mr Shorter and Ms Challen, did not include any understanding that the plaintiff was conducting any instruction course, or even that the plaintiff was in charge of the divers who came with him.

The evidence of Mr Horatio Noble

1. Mr Noble, the remaining Lets Go employee, gave brief evidence. He was a trainee diver employed by the defendant as a general hand to tie up and untie the boat. He saw Mr Moore sitting in the wheelhouse with an oxygen mask and a bucket. His evidence added nothing to the case and, like Mr Jeffs, he was not cross-examined.
2. The remaining witnesses were the expert witnesses on diving issues.

Challenge to the plaintiff's expert evidence

1. The plaintiff tendered a report of Chris Coxon dated 29 May 2015. That report was the subject of challenge by Mr Reynolds on the basis set out in his written submissions dated 10 June 2016. The basis for the objections were: 1. Mr Coxon did not have specialised knowledge based on his personal training, study or experience in that he provided a statement of his qualifications at paragraphs 2 and 3 on page 1 of his report but did not set out any further details of his study or training beyond his employment as the Principal Adviser (Diving) Workplace Health and Safety Queensland. Mr Reynolds submitted that an expert must, in his report, demonstrate his study, training or experience and that I should not infer from the fact that he was the Principal Adviser on diving for the Queensland Government's Workplace Health and Safety Department that he had the requisite skills. 2. Mr Coxon did not state that he had read the code of conduct and agreed to be bound by it. The report should be rejected for its breach of r 31.23 Uniform Civil Procedure Rules 2005 (NSW).
2. Mr Reynolds appear to withdraw his objection after a curriculum vitae was provided, after submissions about the status of a letter from Bale Boshev Lawyers dated 19 May 2016 enclosing a letter from Mr Coxon stating that he had read the expert witness code of conduct and agreed to be bind by it. However, this was a hard fought case and in the event that Mr Reynolds' apparent concession was not in fact made, I should record the following observations.
3. The requirement that an expert provide a curriculum vitae and set out experience in full needs to be construed with regard to the facts and information set out in the report. For example, a statement by an expert that he or she is the chief neurosurgeon at a large hospital should go a considerable way towards the acceptance of his or her expertise.
4. Additionally, where there is no doubt as to the area of expertise (as is the case here) accreditation in that area of expertise should not be an issue of concern unless there is some specific factual issue giving rise to challenges to expertise. This is particularly the case in relation to the increased availability of information about experts available on the internet. The requirements for curriculum vitae and information about a witness' background as an expert are no longer such an unknown that the court needs to be concerned to enquire into the precise qualifications and experience of a person appointed to a senior position such as that held by Mr Coxon, particularly since it is a government position.
5. The late objection to the failure to refer to the code of conduct as required by r 31.23(3) Uniform Civil Procedure Rules 2005 (NSW) is an issue of concern, and I note the remarks in this regard by Einstein J in Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [11].
6. Another issue of difficulty for me, in relation to the expert evidence, is that this was not heard concurrently. The defendant brought an application to strike out Mr Coxon's report on the basis that if that report was excluded, Associate Professor Mitchell might not be called. He had not been required to attend for cross-examination by the plaintiff, possibly by reason of the expense as he works in Las Vegas, and he was intended to be present in court only to assist Mr Reynolds in cross-examination. As it happened, Associate Professor Mitchell was called and cross-examined, but separately to Mr Coxon. This deprived the parties of the chance to review the complexities of diving standards and associated medical issues in a concurrent evidence setting.
7. One of the difficulties of case management and trial procedure is that forensic decisions made by the parties may deprive the court of vital information. There were issues in both reports about which I would have liked to hear more, such as the reasons for Associate Professor Mitchell's failure to comment in his report on Mr Moore's head injury shortly before he submerged, when he must have known about it because it is referred to on page 36A of Mr Coxon's report, where it is noted that Mr Moore reported this "after the dive", and this was the report which Associate Professor Mitchell was answering.
8. Having noted these matters, I now consider the evidence of Mr Coxon, the plaintiff's expert and Associate Professor Mitchell, the defendant's expert. In addition, I have had regard to the comments on diving generally made by Associate Professor Bennett (he is the co-author of several publications with Associate Professor Mitchell).
9. As Associate Professor Mitchell has answered Mr Coxon's report in his report of 26 January 2016, I shall deal with this report first.

Expert evidence - Mr Coxon

1. Mr Coxon's detailed report of 29 May 2015 complies with the requirements for an expert, namely starting by setting out comprehensively the statement of facts he has acted upon, the list of documents he considered and then fully exposing the reasons for his opinions. I note that although this list of documents does not include Mr Moore's statement (which was not served on the plaintiff's solicitors until after Mr Coxon's report was completed), Mr Coxon was aware that Mr Moore had complained of and reported his injury: "After the dive Mr Moore reported that he had been struck on the head by the Tomaree before descending." (page 36A)
2. Mr Coxon starts his report with an examination of the Standards environment, including the PADI and DAN (Divers Alert Network) standards (pp 30A - 34A of the plaintiff's expert and liability documents). He also identifies the relevant text on diving and aquatic medicine.
3. He made the following observations about the inadequate oxygen provision not only to the plaintiff but to Mr Moore: "the oxygen delivery system available on the Tomaree was inappropriate for providing high concentration oxygen therapy to an injured diver. The oxygen gas supply was either inadequate for one diver or the system of work used by the Lets Go workers was inadequate to ensure additional gas supplied were connected where required. Overall the oxygen system was inadequate for one diver. It was therefore more than inadequate for two divers. The provision of oxygen to treat divers comprises three elements - adequate gas supply, appropriate delivery systems and staff who are competent and have an emergency procedure to use the equipment when required. Lets Go provided on board the Tomaree one or more oxygen cylinders and a free flow delivery system to a simple therapy mask. This was provided to Mr Moore. This delivery system allows oxygen to be breathed at between 35 - 60% and is unable to deliver oxygen at the high concentrations recommended for diving injuries. The number or sizes of cylinders available is not known although it appears that they were 'C' and/or 'D' size. It is not known if they were full. Regardless of these factors the oxygen therapy provided to Mr Moore using this equipment ceased when the supply ran out before the Tomaree had returned to Nelsons Bay. A similar, and still inadequate, degree of oxygen therapy was able to be maintained for Mr Moore by use of his own EAN x 50% gas supply and SCUBA regulator. This treatment continued until Mr Moore was transported privately to a medical centre. This level of provision is entirely inadequate as an emergency oxygen system for injured divers. The delivery system and mask used was not capable of supplying high levels of oxygen concentration at or close to 100%. All standards referenced in this report clearly reiterate the importance of carrying an adequate supply of oxygen equipment to deliver it at high concentrations and trained staff to use it. Other delivery systems are commonly available and used in the recreational diving industry that allow concentration close to 100% oxygen to be delivered to an injured diver." (Report dated 29 May 2015, p. 37).
4. I note, in relation to the 'C' and 'D' cylinders, that Mr Coxon was cross-examined on the basis that there were two cylinders (one 'C', one 'D'). However, as Mr Hart pointed out in his closing submissions, that was an assumption of fact for which there was no basis.
5. Mr Coxon sets out in his report that it should have been obvious to Mr Shorter or to Mr Jeffs (as the diver supervisors or dive coordinators on board) that Mr the history of a rapid and uncontrolled ascent, multiple dive computer alarms and the state of Mr Moore that not only Mr Moore but also Mr Barrett was suffering from decompression illness, particularly after Mr Barrett self-treated with Mr Moore's EAN x 50% cylinder and later his own EAN x 32% cylinder. Although identifying the signs and symptoms of decompression illness and contributing risk factors is a complex task, it is a key focus of diver training, and the failure to produce sufficient oxygen not only for the plaintiff but also for Mr Moore was, in those circumstances, inadequate.
6. Mr Coxon also noted the failure of the defendant's employees to complete a properly designed dive safety log, which showed a missed opportunity where the dive profile, alarms and history of the plaintiff could have been noted, and an appropriate precautionary response made to him, or at least further advice be sought.
7. Mr Coxon considered that to supply the plaintiff as well as Mr Moore with oxygen therapy, a second supply system would have been required, and indeed should have been available if more than one person was diving, according to the standard medical text on the subject (although the PADI and DAN standards were silent on this point). Even if a second mask had been available for the plaintiff on the system used by Mr Moore, that would have been unacceptable, because it would have halved the oxygen supply available to Mr Moore.
8. Mr Coxon was also critical of the rescue system, describing it as "basic and entirely reliant on the physical exertion of the rescuers" (page 38A). He particularly noted: "The rescue of an injured diver when diving from a vessel typically necessitates the transfer of the injured person from the water to the vessel to facilitate ongoing treatment and evacuation. The transfer of the person is a difficult exercise where planning, training, competence, physical skill and appropriate equipment is all required to overcome environmental, structural and human factors that may be present."
9. The PADI incident report recorded Mr Moore's weight at 98 kg, and he was unresponsive when the plaintiff started to lift him out of the water, at which stage his buoyancy in the water was lost. The plaintiff used a packstrap carry to lift him up the ladder with some assistance from Mr Shorter on board and, when he regained consciousness, Mr Moore himself. This would have involved considerable exertion on the plaintiff, who had just ascended quickly from the water himself. Mr Coxon considered there were alternative methods of bringing Mr Moore onto the craft; the method used was "extremely basic" and "required considerable exertion by Mr Barrett" (page 41A). He considered it outside his area of expertise to comment upon whether the exertion by the plaintiff during the rescue contributed to his injuries.
10. Dr Coxon also commented on the level of manning of the boat, which he described as "the absolute minimum", in that it was one person on the surface and one on the dive. While this is not uncommon in small diving groups, where the buddy system is used by divers, the sole person needs to be alert and well trained.

Expert evidence - Associate Professor Mitchell

1. I shall deal first with an omission in Associate Professor Mitchell's report, namely his failure to refer to Mr Moore being struck on the head before submerging.
2. Unlike Mr Coxon, Associate Professor Mitchell did not set out in his report a list of the material with which he was provided. I was told that he was not given Mr Moore's statement, although the precise reason for the defendant's solicitors (who possessed that statement well before the hearing and at a time when this report was being prepared) failing to provide him with it earlier was never revealed. It is even harder to understand why this is the case when, as is noted above, it had always been known that Mr Moore reported being struck on the head before descending (see page 36A of Mr Coxon's report).
3. To cure this problem, in opening Associate Professor Mitchell's examination in chief, Mr Reynolds read him the text of the amendment to the statement of claim and asked him if he resiled from any of his previously expressed views.
4. Associate Professor Mitchell replied: "A. I think the first thing to say is that being struck on the head that inevitably results in a head injury. Being struck on the head, or hitting your head, is a relatively common event, and on the vast majority of occasions doesn't result in a functionally important injury. Obviously in this case, there's no way of being certain whether that occurred or not, but I'm just making that point. I do not believe that a head injury was what was responsible for the events that unfolded on the video that we all watched the other day. And I say that because they don't fit the natural history of head injury. Head injury would normally produce either a debilitating level of loss of consciousness early, and we've all seen that in sports injuries, on a rugby field, in an NRL game, you know, one of these fights that you see on TV these days. And, so there's a loss of consciousness and then a gradual recovery, well, clearly, that didn't happen. It is true to say that some head injuries can result in a more gradual loss of consciousness, and on the face of it, that would fit with the progressive debilitation, loss of function, and ultimately unconscious that we saw in Mr Moore, but where it doesn't fit the natural history of head injury is that when he was brought back to the surface, he suddenly recovered. Or at least regained consciousness relatively quickly. And that is simply not the natural history of a head injury. So, and in fact, that pattern of events fits much more comfortably with a progressive gas toxicity, which I think is the explanation for what we saw during that dive. Now, that is something that the Court may or may not want me to elaborate on." (T 346)
5. It would have been more helpful to me if Associate Professor Mitchell had read Mr Moore's statement and considered the interaction of a blow on the head with the activity of diving, rather than talking about football. Unfortunately, this was one of several discursive answers Associate Professor Mitchell made which, while he was trying to be helpful, tended to obscure his point.
6. Professor Mitchell took a combative approach to this evidence as well as other topics, such as in his reluctance to acknowledge that the plaintiff's actions even "contributed" to saving Mr Moore's life: "Q. The situation I think is this. That a diver has gone off the boat, he's struck his head, advised the lookout, Mr Shorter, "I have struck my head. I want to get out of the water. I want to abort the dive." Mr Shorter then says, "No, you go and tell Dean Barrett, he's your diving buddy, go down and find him". It's true, isn't it, that we wouldn't even be here if Mr Moore had been allowed and accepted back on the vessel. Is that true? Is that correct? A. Well yes, its‑‑ Q. Right, well that's ‑ it's the totally ‑ it cannot be any other way, can it, with respect, can it? A. No. He had to be in the water diving for this accident to have occurred. Q. We would not be here, correct? A. Correct. Q. You've been critical of Mr Barrett in terms of his actions that you see on the GoPro haven't you? A. In some parts critical and in some parts praiseworthy. Q. He saved Mr Moore's life didn't he? Correct? A. Maybe. Q. He came to his aid? A. Yes. Q. He was unconscious on the surface, he saved his life, correct? A. He contributed to the saving of Mr Moore's life, yes." (T 349)
7. Some of his other answers were combative. When shown a book he had co-authored and asked to comment on the accuracy of it, he objected to being held "responsible" for material other authors contributed about such fundamental matters as whether delivery of oxygen was "essential" to persons such as the plaintiff (he said it was "a recommended intervention").
8. Associate Professor Mitchell acknowledged that Mr Moore's behaviour on the GoPro footage, including his erratic behaviour underwater and subsequent vomiting and coughing, could not rule out head injury or concussion, but only to the extent of being a possibility.
9. Associate Professor Mitchell provided a lengthy report. I shall deal first with his medical opinion that the plaintiff does not have decompression-related illnesses at some length. He considered the ascent of the plaintiff and Mr Moore was within the allowable rate of ascent according to recognised standards (page 11 of his report) and thus incapable of causing decompression illness. He explains Mr Moore's decompression illness as being merely swallowing sea water or alternatively due to some other cause, such as a medical condition before the ascent but, as noted above, appears to have completely overlooked Mr Moore being struck on the head.
10. As is set out below in the section of this judgment on quantum, Associate Professor Mitchell's opinion that the plaintiff did not suffer decompression illness is contradicted by Associate Professor Bennett, the plaintiff's treating doctor and an expert in diving as well as decompression illness. It is a diagnosis he makes without the benefit of any personally carried out medical examination of the plaintiff.
11. Associate Professor Bennett (whose opinions were endorsed by Dr Anderson) was not cross-examined. Both these medical practitioners had the opportunity of examining the plaintiff, from their respective viewpoints as the plaintiff's treating doctor and a doctor preparing a medico-legal report for an insurance company. Associate Professor Mitchell did not have this advantage.
12. The next area of the report relates to the oxygen provided on board. Associate Professor Mitchell's observations about the adequacy of the diving arrangements suffer from the disadvantage of being based upon a set of facts which I have not accepted. I have rejected the evidence of Mr Shorter and Ms Challen that there was sufficient oxygen on the boat, and I have found that the plaintiff was given no or no sufficient first aid or assistance by Mr Shorter when he should have been. In those circumstances, for the reasons outlined by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 50 NSWLR 705, the value of his report on this issue is significantly undermined.
13. Associate Professor Mitchell's report contains a number of statements as to the law. For example: 1. He states on page 11 that "I therefore find myself in agreement with paragraph 9 of the Defence". 2. He states on page 7 that "to summarise a key aspect of this narrative in respect of the points being argued in the case, the events described herein could not have been predicted nor prevented by any plausible action on the part of Lets Go Diving staff". Whether or not that is factually correct (and I am satisfied that it is not), those are issues for the court, not the expert. This is the language of advocacy, not of expertise. 3. Similarly, his statement that the divers' conduct underwater "was entirely their responsibility" (page 7) and "I would suggest that Mr Barrett must take primary responsibility for the non-discovery (and non-treatment) of his occult serious symptoms" (page 16) conflates expertise and legal conclusions. His comments at paragraph 14 on page 17 are in similar terms. These observations detract from the value of his report by demonstrating what appears to be partisanship.
14. Associate Professor Mitchell's report findings were challenged by Mr Coxon, the expert retained by the plaintiff. His report was based on the facts as I have found them, and raise pertinent issues which I consider Associate Professor Mitchell should have addressed. Similarly, as to issues of causation concerning decompression illness, Associate Professor Bennett's careful observations, based on his consultations with the plaintiff, are to be preferred to Associate Professor Mitchell's views, for the reasons set out in the section of this judgment on quantum.
15. For all of the above reasons, I found Associate Professor Mitchell's report and evidence to be of very limited value. Where he has a professional opinion which is inconsistent with that of Associate Professor Bennett or Mr Coxon, I propose to accept their opinions.
16. I next set out the legislative framework for the parties' pleadings.

The Australian Consumer Law claim - The legislative framework

1. I first note that the parties had considered the similar factual issues arising in Motorcycling Events Group Australia Pty Ltd v Kelly (2012) 303 ALR 583 and noted the New South Wales Court of Appeal's resolution of a number of issues in that decision, such as the exercise by this court of Federal jurisdiction, how claims pleaded under the ACL and the Civil Liability Act fall to be determined, the issue of the indemnity and the concept of "recreational activity".
2. Unlike Motorcycling Events Group Australia Pty Ltd v Kelly, the first question in these proceedings is whether the plaintiff is a consumer. The ACL defines "consumer" as follows: "3 Meaning of consumer (1) Acquiring goods as a consumer A person is taken to have acquired particular goods as a consumer if, and only if: (a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of this paragraph - that greater amount; or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads. (2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods: (a) for the purpose of re-supply; or (b) for the purpose of using them up or transforming them, in trade or commerce: (i) in the course of a process of production or manufacture; or (ii) in the course of repairing or treating other goods or fixtures on land. (3) Acquiring services as a consumer A person is taken to have acquired particular services as a consumer if, and only if: (a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of subsection (1)(a) - that greater amount; or (b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption. (4) Amounts paid or payable for purchases For the purposes of subsection (1) or (3), the amount paid or payable for goods or services purchased by a person is taken to be the price paid or payable by the person for the goods or services, unless subsection (5) applies. (5) For the purposes of subsection (1) or (3), if a person purchased goods or services by a mixed supply and a specified price was not allocated to the goods or services in the contract under which they were purchased, the amount paid or payable for goods or services is taken to be: (a) if, at the time of the acquisition, the person could have purchased from the supplier the goods or services other than by a mixed supply - the price at which they could have been purchased from the supplier; or (b) if: (i) paragraph (a) does not apply; but (ii) at the time of the acquisition, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply; the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier; or (c) if, at the time of the acquisition, goods or services of the kind acquired could not have been purchased from any supplier except by a mixed supply - the value of the goods or services at that time. (6) Amounts paid or payable for other acquisitions For the purposes of subsection (1) or (3), the amount paid or payable for goods or services acquired by a person other than by way of purchase is taken to be the price at which, at the time of the acquisition, the person could have purchased the goods or services from the supplier, unless subsection (7) or (8) applies. (7) For the purposes of subsection (1) or (3), if: (a) goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from the supplier, or could have been purchased only by a mixed supply; but (b) at that time, goods or services of the kind acquired could have been purchased from another supplier other than by a mixed supply; the amount paid or payable for the goods or services is taken to be the lowest price at which the person could, at that time, reasonably have purchased goods or services of that kind from another supplier. (8) For the purposes of subsection (1) or (3), if goods or services acquired by a person other than by way of purchase could not, at the time of the acquisition, have been purchased from any supplier other than by a mixed supply, the amount paid or payable for the goods or services is taken to be the value of the goods or services at that time. (9) Amounts paid or payable for obtaining credit If: (a) a person obtains credit in connection with the acquisition of goods or services by him or her; and (b) the amount paid or payable by him or her for the goods or services is increased because he or she so obtains credit; obtaining the credit is taken for the purposes of subsection (3) to be the acquisition of a service, and the amount paid or payable by him or her for the service of being provided with the credit is taken to include the amount of the increase. (10) Presumption that persons are consumers If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services. (11) Mixed supplies A purchase or other acquisition of goods or services is made by a mixed supply if the goods or services are purchased or acquired together with other property or services, or together with both other property and other services. (12) Supplies to consumers In this Schedule, a reference to a supply of goods or services to a consumer is a reference to a supply of goods or services to a person who is taken to have acquired them as a consumer."
3. The plaintiff's position is that this was conceded by Emma Challen, on behalf of the defendant, at T 425 - 426.
4. The defendant's argument is that the plaintiff was not a consumer as the services were provided to the Charlestown Dive Academy and not to the plaintiff. Alternatively, he was on the boat within the scope of his employment acting for the commercial advantage of his employer. Counsel for the defendant submitted that not only the plaintiff but also those who had come with him on the dive and who had booked and paid through the plaintiff's company were not "consumers" because they were clients of the plaintiff's company and could not be a consumer with any other person.
5. Why was the plaintiff on the defendant's boat? The plaintiff was on the boat to dive in the company of his girlfriend and customers from his diving business. Mr Reynolds submitted that if they were customers of anyone, they were customers of the plaintiff's company. That did not mean that they could not be customers of anyone else. Second, he submitted that the plaintiff was there for a commercial purpose because the plaintiff received a discount on the tickets which he kept.
6. Does the fact that the plaintiff took advantage of a discount arrangement with the defendant mean that his purpose in going on the dive was a commercial one? Will the conflation of personal and work benefits deprive a plaintiff of his entitlement to be considered a consumer? Does the fact that the activity engaged upon may have some relevance to the plaintiff's work activity mean that it is a commercial enterprise?
7. First, I note that the terms of the ticket are clear. The contractual arrangement between the defendant and the plaintiff's company was for the provision of services to the paying customers. The plaintiff was participating in that dive as a customer, notwithstanding the fact that his company had organised the dive. Although a discount had been given which included a free spot on the dive for the plaintiff, he could have been called upon to pay if certain provisions in the contract were not met (for example, payment was not made by the due date). He most certainly was not present as a representative of the defendant, and his presence on the dive did not excuse the defendant from complying with its safety obligations to all divers, including the plaintiff himself.
8. Second, as to whether the plaintiff was engaged in a recreational or commercial activity, I note a similar argument was raised in Motor Cycling Events Group Australia Pty Ltd v Kelly at [40] - [41] et passim.

"Recreational" or commercial activity?

1. Was the plaintiff engaged in a recreational activity or was he engaged in the dive for commercial advantage or other non-recreational purpose, and how does this impact on his standing as a consumer? This is a different question to that posed by provisions in the Civil Liability Act providing defences for dangerous recreational activities, because it relates to whether the plaintiff is a consumer or engaged in commercial activity.
2. This was an issue raised in Motorcycling Events Group Australia Pty Ltd v Kelly (both at first instance, at [23] - [24]), and on appeal ([4], [12], [40] and [134]). It was put to the plaintiff that he was present in an instructor or supervisor role: "Q. Putting her aside, Charlestown Diving Academy charged Moore, Gower, Downes, Perry and Cox a fee for going on the Tomaree(?) dive on 15 January 2012? A. We took payment for those dives as advertised by their webpage for their site of a single dive on the Oakland. Q. Which was $70 per person? A. Which was $70 including a guide, yes. Q. Lets Go charged you $56? A. That's right, which is at 20% commission less. Q. You made 20% on each of the divers? A. Commission. We made 20% commission, yes. Q. That was the standard practice that you had at the time wasn't it? A. With every dive shop. I shouldn't say that, I shouldn't say that, yes. Q. I want to suggest to you that six people that were on this dive that are mentioned on this invoice were under your supervision during the dive? A. No, I disagree." (T 206)
3. There was no evidence from Mr Jeffs, the dive supervisor, to the effect that the other divers were under the plaintiff's supervision. There was evidence to the contrary from Karen Hetherington, who said the Lets Go diver was in charge of the dive. She also described the other divers by using their first names; there is no suggestion that these were new customers and, as Associate Professor Mitchell noted, only 5 in the group (namely all the divers on board) had less than 100 dives, so there is no evidence that the plaintiff was training inexperienced divers.
4. The evidence from Mr Moore is that when he told Mr Shorter he wanted to abort the dive, Mr Shorter told him to tell Mr Moore, but the reasons for that fall short of amounting to a commercial or supervisory arrangement.
5. Whether or not a person is a consumer is a factual issue. On the balance of probabilities, I am satisfied that the plaintiff, his girlfriend and other experienced divers who had made a booking through his shop were engaged in a recreational activity and that the plaintiff was just one of the group, although the most experienced. If that is the case, then ss 60 - 61 of the ACL apply.
6. Sections 60, 61 and 64 of the ACL provide: "60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. 61 Guarantees as to fitness for a particular purpose etc (1) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer; there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose. (2) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result. (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier. (4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.
7. The defendant's submission is that it did not breach s 60 or s 61 for the following reasons: 1. The first aid services were provided with due care and skill. 2. The plaintiff was provided with some medical oxygen in that he used Mr Moore's pony bottle. 3. The plaintiff did not appear to display, or complain of, any symptoms or seek additional first aid treatment from the defendant. 4. Sufficient medical oxygen was available on board and did not run out at any time. 5. The services provided were fit for the purpose, in that the oxygen provided was sufficient in quantity and grade (being medical grade oxygen). The plaintiff failed to use what was available to him.
8. I am satisfied, from the plaintiff's evidence and the GoPro footage, that he was not provided with any first aid treatment at all. The GoPro footage shows that he used the pony bottle of his own volition. He can be heard on the GoPro telling Mr Shorter he is doing this; it sounded as though he was wanting Mr Shorter's permission, or at least to explain why he was using Mr Moore's pony bottle.
9. The plaintiff was coughing and exhausted from pulling Mr Moore over the railing. It should have been evident to Mr Shorter that he needed to check the plaintiff's condition, but I am satisfied he never did so. There was insufficient medical oxygen on board but even if there was medical oxygen on board, the plaintiff could hardly go and find them and then help himself, especially as he was looking after Mr Moore at the time.

Conclusions as to breach of warranty

1. I find that the defendant warranted to the plaintiff that its boat's diving services would be rendered with due care and skill and that all necessary emergency equipment was available. In breach of this warranty, those services were not rendered with due care, because the defendant's servants or agents failed to take care in relation to both the plaintiff and Mr Moore's safety, in circumstances where the plaintiff was himself injured having to rescue Mr Moore, bring him to the boat and consider his safety issues ahead of his own.
2. The defendant compounded those breaches by failing to have, let alone offer, 100% oxygen sufficient for two divers and specifically to the plaintiff (T 483), although the likelihood that the plaintiff, as well as Mr Moore, could be affected was acknowledged by Mr Shorter to be a possibility (T 471).
3. I am satisfied that the plaintiff's evidence that the D cylinder was not there is correct, and is supported by the GoPro film of the cabin, where it is not to be seen, and that the volume and delivery of the oxygen available was, for the reasons explained by Mr Coxon, insufficient.
4. This brings me to a consideration of the specific defences under the Civil Liability Act.

A threshold submission: s 57 Civil Liability Act

1. My findings in relation to the "good Samaritan" defence are in the alternative to my findings in relation to each of the statutory defences.
2. The plaintiff argues that the GoPro evidence and the concession by the defendant's expert, Associate Professor Mitchell (namely that the plaintiff saved the life of Mr Moore: T 349) mean that the plaintiff is a "good Samaritan".
3. As is already noted, the defendant concedes that the plaintiff was a "good Samaritan" during the dive but asserts that this role stopped once Mr Moore was on the boat and being cared for by Mr Shorter.
4. It is common ground that the plaintiff did not go to Mr Moore's assistance in search of a "reward" and that he acted altruistically to save Mr Moore's life, which was a medical emergency. Does this mean that none of the provisions of the Civil Liability Act can function as a defence where the incident occurred because the plaintiff was a "good Samaritan"?
5. This was no doubt why the Ipp Committee was opposed to the enactment of such legislation. In some jurisdictions, "good Samaritan" legislation is limited to doctors, nurses and members or employees of listed organisations only, and not to anyone who steps forward to provide assistance: s 16 Law Reform Act 1995 (Qld).
6. The only other limitation, in New South Wales, is that the "good Samaritan" did not intentionally or negligently cause the injuries (s 58) or claim to have skills or training he or she did not have (s 58(3)).
7. The parties were unable to direct me to any relevant decisions on this issue. As to the general law concerning "good Samaritans", I note the observations of the New South Wales Court of Appeal in Cook v R and M Reurich Holdings Pty Ltd [2004] NSWCA 268, where a person had been injured fighting a fire, but this decision is of limited assistance.
8. These possibilities were clearly foreseen by the Ipp Committee, hence their reservations about the enactment of provisions taking the protection of "good Samaritan"s beyond that of other statutory rights. However, the legislative intent is clear. The plaintiff saved Mr Moore's life, but endangered his own, in circumstances where the breach of warranty and breach of duty of care by the defendant has been made out on the evidence. I am satisfied that the impact of the "good Samaritan" provisions in ss 57 and 58 is that the defences under other sections of the legislation do not apply.
9. In the event that I have erred in this regard I set out my findings in relation to the defences pleaded.

Sections 5G, 5H (obvious risk) and 5I (inherent risk)

1. Mr Reynolds conceded that if I found that Mr Shorter was told by Mr Moore of his injury and wish to abort the dive, and that there was insufficient oxygen on board, these defences could not be engaged.
2. I have made these findings, but would add that, even if oxygen had been stored on board, the plaintiff's failure to use it would not have been sufficient for these defences to succeed. On the facts in this case, the obligation lay on the defendant to produce and offer any other oxygen, particularly after Mr Shorter saw the plaintiff using Mr Moore's pony bottle.

Section 5L (dangerous recreational activity)

1. If diving is a dangerous recreational activity, the defendant may rely upon s 5L, which falls outside the relevant provisions of the ACL.
2. No factors of the kind identified in Fallas v Mourlas (2006) 65 NSWLR 418 are made out here. This was a simple half-hour dive in relatively calm water and to a relatively shallow level of around 30 metres where, as long as the necessary precautions were taken, it should not have been necessary for the divers to be in any danger. On the evidence in this case, this particular activity was not dangerous.
3. In Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 at [43], Macfarlan JA explained that even if the recreational activity were dangerous, that will not absolve the defendant from liability unless the risk was inherent in, or an incident of, that activity: "[43] Section 5L is also inapplicable because the appellant's injury did not result from "the materialisation of an obvious risk" of the activity which, as the following authorities demonstrate, would require the risk to have been inherent in, or an incident of, that activity."
4. Macfarlan JA went on to give the following examples: "[44] This Court's pre-Civil Liability Act decision in Bright v Sampson and Duncan Enterprises Pty Ltd [1985] 1 NSWLR 346 considered the efficacy of the exclusion clause; "skating is at the patrons' own risk", to which patrons of the defendants' skating rink had agreed. Kirby P considered that the clause was "limited to protecting the occupier against liability for injuries caused by activities" inherent in or incidental to skating" (at pp 349-50). Samuels JA used similar language (at p 360) and Mahoney JA noted that the clause did not apply to any injury simply because it resulted from a risk materialising while skating (at p 368). Likewise in Trevali Pty Ltd v Haddad [1989] Aust Torts Reports 80-286, another case involving an injury at a skating rink, the Court referred to "pushing and jostling", as distinct from deliberate pushing, as an incident of skating in such a venue (pp 69,034-69,035). [45] In Holroyd City Council v Zaiter [2014] NSWCA 109; 199 LGERA 319 a nine year old boy rode a bicycle down a grassed slope into a concrete drainage channel. This Court found that s 5L was inapplicable because that activity (riding a bike) was not a dangerous recreational activity and in any event "the [relevant] incidental risk was that the rider might fall off and hit his or her head on the ground or on the bike. The risk which eventuated here [was] not a fall off the bike, but falling a distance of two metres into an unfenced concrete channel" (at [91]). [46] In the present case, it would have been obvious to a reasonable person in the appellant's position (even taking into account her age, as to which see Carey v Lake Macquarie City Council [2007] NSWCA 4 at [97] and Holroyd City Council v Zaiter at [90]) that significant injury might be suffered if that person, or another participant, were unable to properly control his or her quad bike. These were obvious risks incidental to the activity (albeit, as I have held, that it was not a "dangerous recreational activity"). However, I do not consider that the risk of injury resulting from an instructor riding faster than was safe for inexperienced or young participants and effectively giving such persons no real choice but to also do so in order to keep up with him, was a risk inherent in or incidental to the quad bike riding activity as it was presented to the appellant and her family. To uphold the defence under s 5L in such circumstances would be inconsistent with the evident policy underlying s 5L to preclude a plaintiff suing where (and only where) the plaintiff has been injured as a result of him or her engaging in a recreational activity when the risk that materialised should reasonably have been obvious to them."
5. The same is the case here. The risk was not inherent in the activity but as a result of Mr Shorter's wrong advice to Mr Moore and failure to give appropriate first aid to the plaintiff, whether Mr Shorter had access to first aid or not.

Section 5M and 5N (risk warning)

1. In Alameddine v Glenworth Valley Horse Riding Pty Ltd, Macfarlan JA noted at [49]: "Like s 5L, s 5M relates to a risk "of the activity" (being, in the case of s 5M "a recreational activity" and, in the case of s 5L, "a dangerous recreational activity"). Both sections import the notion that I have referred to in connection with s 5L that, for the section to be applicable, the risk must be inherent in or incidental to the activity. For the reasons given above in relation to s 5L (see [46]), the risk that materialised in this case was not of that character. As a result, even if, as the primary judge held, the warnings that the respondents gave extended to the risk that materialised, s 5M does not protect the respondents because that risk is not one "of the activity" in the sense described above."
2. Similarly, for the reasons set out earlier in this judgment, I am satisfied that the risk that materialised was of the same character.

Section 5N and waiver

1. Section 5N provides: "5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity."
2. However, s 64 of the ACL provides: "64 Guarantees not to be excluded etc by contract (1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; or (b) the exercise of a right conferred by such a provision; or (c) any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services. (2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision."
3. First, I note the observations of Basten JA in Motorcycling Events Group Australia Pty Ltd v Kelly at [32] - [33]. It is, however, my understanding that the defendant presses the point, so I will address the issues relevant to s 5N.
4. The plaintiff was aware that there was a waiver, but said that it was not always included. His company entered into the contract some weeks before the dive, and the waiver did not form part of that documentation.
5. Leaving aside the fact that the contract was made before the waiver was entered into (as to which see Alameddine v Glenworth Valley Horse Riding Pty Ltd at [52]), the defendant is not entitled to construe the terms of the waiver so as to exclude its own negligence, for the same reasons as those set out in Alameddine v Glenworth Valley Horse Riding Pty Ltd at [53] - [54].
6. For these reasons the defendant is not entitled to rely upon the waiver.

Contributory negligence (ss 5R and 5S) and the "good Samaritan"

1. A finding of contributory negligence requires an apportionment involving the assessment of the degree of departure from the appropriate standard of care.
2. The interaction of claims of contributory negligence under ss 5R and 5S Civil Liability Act are further complicated in these proceedings by reason of the "good Samaritan" defence under s 56 Civil Liability Act, and whether this permits a finding of contributory negligence at all.
3. The particulars in question are that the plaintiff: 1. Failed to heed the dangers associated with scuba diving; 2. Failed to participate in the activity with care; 3. Failed to ascend back to the surface at an appropriate rate; 4. Failed to make a safety stop (if required); 5. Failed to abort the dive prior to descending; 6. Failed to adequately instruct Mr Moore during the dive; 7. Failed to seek medical attention following the dive; and 8. Failed to take reasonable care for his own safety.
4. Particular (g) is really a complaint of failure to mitigate, and I propose to disregard it (I have set out the evidence in relation to failure to mitigate in the next section of this judgment).
5. Particulars (a), (b) and (h) are of such extreme generality as to be meaningless. That is particularly the case in circumstances where the plaintiff was reacting to an urgent situation where lives were in peril.
6. Particular (e) is not available on the evidence no matter what the findings of fact, as the plaintiff did not know and could not know, until he saw Mr Moore in the water, that Mr Moore was having difficulties. There was never a suggestion that Mr Moore had indicated beforehand that he was unfit or otherwise not able to dive.
7. The only particulars of significance are (c), (d) and (f). Particulars (c) and (d) can be answered by looking at the GoPro footage. I have accepted that the plaintiff had to ascend quickly and had no opportunity to stop.
8. It may be that the defendant is seeking to submit that the plaintiff should have been more proactive in getting Mr Moore to abort the dive. If so, this should have been particularised.
9. As to (f), there is no evidence that the plaintiff was instructing Mr Moore, who was an experienced diver, and the GoPro footage shows that Mr Moore was insisting on going ahead with the dive, in that he replied with "OK" to the plaintiff several times.
10. Mr Hart submits that the only area of conduct for which the plaintiff can be criticised is that the plaintiff disregarded his own symptoms in the knowledge of available oxygen. This would be, in my view, a matter for mitigation rather than contributory negligence. However, I am satisfied that the plaintiff did not negligently disregard his own symptoms but, by reason of the dramatic events and his role in the rescue, did not appreciate that he had suffered any injury himself. That is clear from the form that he completed two days later for PADI.
11. Accordingly there will be no adjustment for contributory negligence.
12. As I am satisfied that there was no contributory negligence, it is not necessary for me to consider whether the "good Samaritan" provision (s 56 Civil Liability Act) deprives a defendant of a contributory negligence claim. I should note, however, that where a good Samaritan fails to recognise his or her own injuries incurred in the course of the rescue, and is not aided by others with the equipment or training to do so, the argument that they are contributing to the negligence of the defendant causing them is contrary to the principles underlying ss 5B and 5C Civil Liability Act, which is perhaps one of the reasons why the Ipp Committee, in its report, considered the enactment of "good Samaritan" legislation unnecessary.

Failure to mitigate

1. The plea of failure to mitigate, as set out in the defence, is that the plaintiff: 1. Failed to seek medical attention immediately following his ascent, whilst on board the dive boat or later at hospital; 2. Failed to use the additional oxygen sources available on the dive boat; and 3. Failed to ascend safely and make a safety stop (if required).
2. Failure to mitigate may be relevant in relation to damages claims under the Civil Liability Act (Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158). It may be pleaded where there is a failure to accept or undergo treatment: ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193.
3. The plaintiff was preoccupied with caring for Mr Moore. His evidence is that, while this was occurring, he did not realise he himself was ill. That is a complete answer in relation to all these particulars except for "later at hospital".
4. Even at the hospital, the plaintiff had yet to suffer the headache that was the beginning of physical signs. He simply did not know that he was ill. Given the trauma of the events and his preoccupation with Mr Moore, I accept the plaintiff did not realise he himself should have had medical attention.
5. The plea of mitigation is not made out.

Section 151Z Workers Compensation Act 1987 (NSW)

1. Before considering the issue of damages, I will note my findings of fact as to whether any apportionment should be made under s 151Z Workers Compensation Act.
2. This was a last-minute amendment to the defence, and the basis upon which it is asserted to be the case that the plaintiff's employer should bear some proportion of the loss on the basis of inadequate training where the plaintiff acted in an emergency (and thereafter physically and mentally affected by his actions) was never made clear.
3. The defendant bears the onus under ss 5B and 5D of the Civil Liability Act of establishing that Frew Investment Holdings Pty Ltd trading as Charlestown Diving Academy was a concurrent tortfeasor: Shoalhaven City Council v Humphries [2013] NSWCA 390.
4. The defendant has not discharged the onus. It was not put to the plaintiff that either he or some other person should have made direct investigations of the presence of oxygen therapy on the vessel or, if he had done, whether this would have revealed anything other than that there were systems in place and a normal procedure of checking equipment.
5. The fact that the plaintiff has received workers compensation benefits does not mean that the plaintiff was injured in the course of his employment as workers compensation entitlements are also payable for injuries that arise out of his employment. The plaintiff submits that it is on this latter basis that these payments were made. Inferences of an admission accordingly should not be drawn: Huysse v Snowy Mountains Hydro-Electric Authority (1975) 24 FLR 418.
6. Even if this were not the case, in the absence of evidence as to absence of training or procedures, or some other recognisable form of evidence, suggestive of failure by the company to discharge its obligations to its employees, there can be no apportionment made.

Quantum of damages

1. The parties have provided schedules of damages as follows:

Plaintiff's schedule of damages Date of Birth 19 January 1967 Date of Accident 15 January 2012 Current Age 49 Life Factor (37 years) 890 Economic Loss Factor (18 years) 625 Weeks since Date of Accident 212 General Damages (30% of most extreme case) $136,500 Past Economic Loss • Average weekly earnings at date of accident - $1,000 gross, $812 net • Current average weekly earnings - $1,451 gross, $1,112 net $142,760 • Average of the past average weekly earnings - $962 • Allow 70% of 962 x 212 Past Superannuation (Allow at 11% of past economic loss) $15,705 Fox v Wood (Allow 20% of past weekly payments (estimated)) $21,292 [revised to $2,924 (see Exhibit GG)] Future Economic Loss • Allow 70% of current average weekly earnings - $1,112 net per week $389,200 • Factor 625 less 20% for vicissitudes • 1,112 x 70% x 625 - 20% Future Superannuation (Allow 13.79% of net future loss) $53,670 Past Out of Pockets (Workers Compensation payments medicals (to be confirmed)) $137,212 [Revised to $51,419.40 (see Exhibit GG)]

1. The defendant's schedule of damages is as follows: Non-economic loss (26%): $47,500 Past economic loss: $47,000 Past superannuation (11%): $5,200 Fox v Wood: $2,924 Future economic loss: $117,000 Future superannuation: $16,200 Past out of pocket expenses: $51,419

1. These figures do not include future out of pocket expenses by reason of the plaintiff's concession that he can pay for these from his navy entitlements. Nor is there any adjustment for contributory negligence or s 151Z.

Non-economic loss

1. The plaintiff particularised the injuries he suffers as follows: 1. Decompressive illness; 2. Aggravation of pre-existing right frontal lobe infarct; 3. Headaches; 4. Memory deficits; 5. Photophobia; 6. Blurred vision; 7. Tunnel vision; 8. Unsteadiness; 9. Left upper limb injury; 10. Neck injury; 11. Tinnitus; 12. Reactive stress and anxiety, aggravation of underlying depressive illness; 13. Inability to resume unrestricted diving activity, in particular for reward; 14. General diminution in ability to compete for work on the open labour market; 15. Restricted capacity to carry out some regular domestic tasks, or any other physical activities; 16. Requirement for dependence on other for ADL's on a temporary basis; 17. Dependence on analgesia; 18. Dependence on psychotherapy; 19. Sleeplessness; 20. Depression; 21. Disruption to social, domestic, recreation and sexual activity; 22. Repeated falls due to loss of balance, causing secondary physical injury to the plaintiff.

Issues relevant to the plaintiff's claim for general damages

1. The plaintiff gave evidence in a frank and undemonstrative manner. He does not make exaggerated claims of pain, or assert he is unable to do the housework, or claim never to be able to work again. His stoic nature is one of the reasons it took so long to consult a medical practitioner.
2. He described his pain in unvarnished terms: "A. It hurts all the time, yeah. Q. In what way? A. It just aches, turning left to right, restriction, pain, basically. Q. That pain in your neck, does that travel anywhere, apart from your neck? A. Well, I've got pain all the way down my back now, and the spine, down to my sciatic, yeah, which travels down to my legs as well. Q. Are they the main features of your physical ailments that you perceive are related to this incident? A. Physical? Q. Yes. A. Yes." (T 120)
3. He pursued treatment for his injuries as they became more difficult to deal with. This included travelling to Queensland to have investigations made at his own expense.
4. He presents with numerous ongoing disabilities which interact in a complex way. The defendant challenges certain of the injuries on the basis of causation, such as the plaintiff's decompression illness, or asserts that such injuries were pre-existing (such as tinnitus) or completely unrelated such as the surgery on the plaintiff's left elbow. In particular, the defendant points to the period of delay between the date of the accident and the appearance of the plaintiff's symptoms.
5. The plaintiff's evidence was that he did not experience any symptoms during the day or even when he first saw Dr Raj. It was not until the night of the events in question that he began to suffer headaches, and these headaches then progressed. On 6 March 2012 he went to see his general practitioner for his regular annual diving certificate check-up. This involved checks of his hearing, eyes and balance. He did not mention the incident in question, and made no complaint of problems concerning his health. It is this "extremely loose temporal relationship" (Associate Professor Mitchell, page 12, paragraph 2) which the defendant submits is the crucial gap in causation and an indication that the plaintiff's injuries, even if they are decompression injuries, are not referable to the incident.
6. I shall first deal with the symptoms referable to the decompression injury.

Symptoms referable to the decompression injury

1. I commence my consideration of the symptoms referable to the decompression injury by noting the explanation of the relevant decompression injuries as set out by Associate Professor Bennett. "At consultation, Mr Barrett listed a number of ongoing problems that have been documented elsewhere, including continuing right frontal headaches (although these are resolving to a degree over time and with specific therapy), episodes of blurred visions, unsteadiness of his feet, difficulty concentrating, poor memory, shoulder and neck pain, and ringing in the ears (tinnitus). All of these could be attributed to his untreated DCI [decompression illness]." (Report of Associate Professor Michael Bennett, 30 October 2015)
2. As is noted in the section of his judgment on liability, Associate Professor Mitchell considered that the plaintiff's ascent was, overall, within the allowable rate and that there was no requirement for the plaintiff to perform a safety stop (paragraph 5 of his report of 25 January 2016). He was sceptical about the claimed link between the symptoms and the diving event because of the time gap for the following reasons: "One particular factor that makes me skeptical about the claimed link between Mr Barrett's symptoms and the diving event is their extremely loose temporal relationship with that event. In 2011 I coauthored a review article on decompression sickness in the Lancet (Vann et al. 2011). In that paper we cited several studies describing the typical latency of decompression illness symptoms after diving. I quote the relevant passage below: "…most cases present soon after surfacing. For example, in a series of military divers, 42% of symptoms occurred within 1 h after diving, 60% within 3 hours, 83% with 8 hours, and 98% within 24 hours. Central nervous system cases of decompression sickness present more quickly: in 1070 cases 56% had symptoms within 10 min and 90% within 4 hours.""
3. Associate Professor Mitchell illustrated this with a diagram for 196 cases of decompression sickness in military divers and noted the short latency in the majority of cases. He went on to state: "In contrast, with the exception of headache (which I return to below), the latency of Mr Barrett's various symptoms appears to be measured in months rather than hours. Indeed, Mr Barrett felt well enough to continue diving over the weeks immediately after the event and I am inclined to the view that his actions over the immediate post-incident period are a better indicator of his perceived state of heath at that time than subsequent claims written in the context of a legal action. There is another circumstantial argument against cerebral decompression sickness (affecting the brain) as an explanation for Mr Barrett's neurological problems. Specifically, he has been shown not to have a large patent foramen ovale. This is a communication between the right and left sides of the heart whose significance in decompression sickness is to allow small nitrogen bubbles commonly formed in the veins during decompression to enter the arterial circulation (and then travel to the brain and other sensitive organs) (see Appendix 1). A large patent foramen ovale is an important predisposition to cerebral decompression sickness and is found in approximately 80% of cases (Cantais et al. 2003). A similar observation has been made in respect of inner ear decompression sickness (Mr Barrett is claiming tinnitus, a manifestation of inner ear decompression sickness, as one of the symptoms). Approximately 80% of inner ear decompression sickness victims have a large patent foramen ovale (Mitchell and Doolette 2015). The absence of such a lesion in Mr Barrett does not eliminate theses diagnoses but males them less likely. In my opinion (which must be qualified by the fact that it is based solely on reading the material supplied rather than on a personal evaluation of Mr Barrett) I think it most likely that his neurological problems relate to chronic complex illness behaviours which may have been triggered by the diving event and the associated development of headaches and anxiety."
4. He answered Professor Bennett as follows: "I would like to acknowledge Professor Bennett's suggestion that the headache Mr Barrett suffered several hours after the drive could have represented a manifestation of cerebral decompression sickness that went untreated at the time, and that some of his subsequent neurological problems are related manifestations which took time to be noticed. Whist this is possible I am doubtful. I think it is unlikely that a cerebral injury severe enough to subsequently cause significant dysfunction in daily living would have manifest only as a headache at the time of the event. Similarly, I am skeptical that such an injury would have caused no obvious functional disruption for weeks to months afterwards (which included diving work). Moreover, headache is a very non-specific symptom and I personally would rarely (if ever) make the diagnosis of decompression sickness on the basis of headache alone if the patient was not exhibiting other symptoms or signs on careful evaluation. Unfortunately Mr Barrett chose not to report his symptom and so was not subject to such an evaluation at the time."
5. Associate Professor Mitchell went on to state at page 15, paragraph 7 of his report that he did not consider the plaintiff's condition was explained partly or wholly by decompression sickness. In those circumstances, the receipt of oxygen therapy immediately following the incident would have made no difference to the plaintiff's current condition.
6. Whether or not the plaintiff suffered decompression illness is the central plank of the plaintiff's claim for damages. There is no doubt that he can never dive again by reason of his ongoing health problems; the question is: what is the cause?

The delay between the incident and his symptoms

1. Careful analysis of the delay and the injury is an essential part of the reasoning process for the reasons explained by the New South Wales Court of Appeal in Nominal Defendant v Kostic [2007] NSWCA 14 at [13], [20] and [58] - [70]. There are, however, two reasons why the medical evidence in these proceedings can be resolved relatively simply. The first is that the plaintiff's medical experts have carefully analysed the injuries having regard to the delay and the second is that the report Associate Professor Mitchell must be viewed with caution for the reasons set out above.
2. By way of summary of the most relevant of those reasons, the plaintiff's position is that Associate Professor Mitchell's report contains incorrect assumptions due in part to his not having been provided with the plaintiff's diving profile or the information that the plaintiff had commenced to suffer headaches later that night. I find this hard to credit since the immediate nature of the onset of the symptoms is clearly described in Associate Professor Michael Bennett's report, and linked to his subsequent problems, as follows: "Mr Barrett says he did not develop any symptoms to indicate he had DCI until several hours later when he developed a significant bi-frontal headache. This is not an uncommon presentation after diving and is consistent with the development of DCI. Had he sought medical attention at that time it would certainly have resulted in a recommendation that he be recompressed for this presumed diagnosis. This is perhaps particularly so because of the story of rapid ascent (raising the risk of DCI) and his long history of diving uncomplicated by any history of similar complaints. However, he did not seek medical attention at that time and was treated with simple analgesia only. Specifically he was not recompressed for the treatment of his DCI. It is also likely that the subsequent 15 to 20 dives over the next few weeks may have exacerbated his injury." (Report of Associate Professor Michael Bennett, 30 October 2015)
3. Associate Professor Bennett goes on to explain the relationship between the original episode of decompression injury and the subsequent development of symptoms: "I believe I have addressed the relationship between the original episode and the subsequent development of symptoms in my earlier responses. In brief, the original neurological injury caused by bubbles following diving (DCI) has served as a trigger for the overlayed development of further symptoms, some of which may not be directly a consequence of the bubble injury itself, but rather indirectly related to the fact he has suffered a significant and persistent diving injury." (Report of Associate Professor Michael Bennett, 30 October 2015)
4. Associate Professor Bennett is speaking in his capacity as an expert on diving-related illnesses.
5. By comparison, Dr Ross Mellick, who is not a diving illness expert, opined: "Details of the event which occurred on 15 January 2012 indicate that Mr Barrett ascended from a depth of about 30 metres very much more quickly than was appropriate and did so in order to save the life of the person with whom he was diving. The clinical condition of the other person was such that he was immediately transferred to a hyperbaric chamber, however Mr Barrett was not. It is also clear from the above description that Mr Barrett did not suffer any specific focal symptoms nor loss of consciousness, in contrast with the other person who was described to be blue and unconscious when Mr Barrett carried him up the latter, out of the water. It would also seem that Mr Barrett continued his normal activities for approximately three months, ceasing those activities for the reasons outlined in the history, which I present above. It is clear that he suffered a frontal infarct which was not secondary to an embolus through a patent foramen ovale. Although there are pre-existing risk factors, there is history locating the abnormalities referred to above in proximity to the event described above. In the absence of other evidence, air embolism resulting in the frontal infarct is a reasonable presumption."
6. Dr Mellick also noted at page 9 of that report that he did not believe that the plaintiff's previous decompression illness and related injuries were in any way related to his present symptoms.
7. However, in a lengthy report (Exhibit P) dated 30 January 2014, Dr Tim Anderson, an occupational physician, provided a report to the case manager of Xchanging setting out a full description of the headache: "Later that evening Mr Barrett experienced a vague frontal headache. He advised that he did not normally experience headaches and that this was something new. I asked him specifically that with his expertise in diving had he any idea what had caused it and if so what did he think should be done about it. He rather passed it off thinking that it was not important. He continued with his work and this included further dives. Specifically these were training dives with civilian sports divers and were usually between 6 and 10 metres on air. He described that on the surface his headaches would increase but that generally when he was underwater except for a few occasions they seemed to be a bit less. As the weeks and months went by the condition seemed to deteriorate and in May 2012 he saw his General Practitioner, Dr Peter Cooke. He was referred for a brain MRI scan. At that time he was experiencing photophobia and thought that his memory was not good. He described that he often had a dazed and confused feeling. He would look at objects or situations but would not effectively take them in. He described that his vision seemed blurred almost as though he was on a boat that was moving and rocking. He also described pain in his left shoulder and pain in his neck radiating towards the right. There was also pain in his left elbow. He did his best to continue with his diving instruction but had difficulty with talking and described that he was getting the order of his words mixed up. He also found that he was unable to effectively teach first aid."
8. Dr Anderson went on to question the adequacy of the diving medical at paragraph 27 of his report: "Apparently a diving medical was carried out in February 2012 and from my understanding of the available notes in the file he was passed fit to dive. With great respect to all concerned, I would question this. If he had these symptoms at that stage and also had difficulty with balance which is normally tested for dive medicals with the Sharpened Romberg's test and he was not passing this, he would be completely unfit to dive until these issues had been fully addressed."
9. He went on to comment on the investigations by Dr Colebatch at paragraphs 30 and 31: "30. Investigations by Dr James Colebatch identified that Mr Barrett had a small Patent Foramen Ovale (PFO). This is a rather curious condition which is surprisingly common and exists when this small aperture between the right and left atria of the heart does not close at the time of birth. Up until then, the foetal heart is effectively a three-chambered organism (similar to that of a frog) but at the time of birth when there is a change of pressures a small flap valve normally closes this aperture off and then seals over. In some people this does not happen. It looks as though Mr Barrett was one of these. Since then there has been a lot of intrigue about whether this condition could have had any bearing on his circumstances. The fact that he had done literally enormous amounts of diving beforehand both in the Navy and then as a civilian diver without any problem at all suggests that in his particular case this is likely to have been only an incidental finding. Nevertheless there is always a theoretical possibility that venous bubbles (which frequently occur in diving and cause no appreciable problem) could move across from the right side into the left side of the heart and from the left atrium go into the left ventricle and from there into the systemic circulation causing an effect similar to a gas embolus. At this stage we have certainly no evidence that anything like this ever happened to Mr Barrett. 31. Mr Barrett advised that the insurance company who were covering him were not convinced that they should be covering this. Apparently several attempts were made for this to be looked at and for a definitive surgical procedure to close the foramen, but this was never funded. Eventually Mr Barrett funded this procedure himself travelling to the Gold Coast to have the procedure done by Dr Sharp. This was fairly recent. It necessitated an approach to the heart through the right femoral artery. Apparently when Dr Sharp got there (I have not seen any report but only accounts from Dr Barrett) the PFO could not be identified. He is therefore due to be seen by Dr Adfield who was the Cardiologist in Cardiff who apparently had originally identified the condition. It would be most interesting to see what happens next."
10. He gave the following opinion: "42. Mr Barrett gives a history of unusual circumstances which developed several hours after a dive which went rather wrong. Under the circumstances and with no other reasonable explanation, it seems most likely that he did experience de-compression sickness (now called decompression illness, a term with which I am not entirely comfortable). The condition does not appear to have been recognised as such at an early stage and it is only something like four months later after further dives that his condition got to such a stage that he saw his General Practitioner. At that time recompression therapy would not have been of benefit. He has therefore been left with variable neurological damage which would be expected to at least partially improve in the subsequent two years, although it is always possible that there could be some permanent features. 43. At the moment we are in a quandary (quite honestly an absolute quandary) to identify what components of his current situation are reasonably due to his particular event and what components are likely to be due to other factors such as adverse psychological influence. At the moment this is very difficult to identify although the neuro-psychometric testing by Specialist Neuro-Psychologist Dr Ilana Hepner of early April 2013 has been particularly useful. It is unfortunate though that this was not conducted a year beforehand. I would strongly advise that this should be repeated, preferably by Dr Ilana Hepner again, although there should be a two year interval between the two assessments. This is to avoid any possible influence of memory from the previous assessment."
11. He made the following observations in relation to causation (helpfully headed "Cause"): "Whatever has actually happened to Mr Barrett and however it has affected him, we cannot get away from the temporal relationship between this particular event and the subsequent development of his headaches. As Professor Michael Bennett describes, this is quite a common presentation of decompression sickness (illness). As already described, the factors which have since developed and which are not directly related to this situation are much more difficult to unravel."
12. Dr Anderson concluded by saying he agreed with Associate Professor Michael Bennett's report on effectively all issues. This included rejecting the patent foramen ovale ("PFO"). He acknowledged that this was "really quite an unusual case" (page 13, paragraph 9(a)) in that it was "certainly not typical of frequently anticipated and experienced decompression sickness (illness) cases". These opinions must undermine the value of Dr Mellick, who failed to take these factors into account.
13. The report of Dr Alan Home, an occupational physician, starts with an acknowledgment that he is not an expert in diving medicine and the early management of decompression illness. His comments are of assistance in relation to other issues, but are of only limited weight when compared to the comprehensive analysis of the plaintiff's decompression injuries.
14. I also consider that the careful notes taken by Dr Peter Cooke paint a clearer picture of the actual chronology of the plaintiff's complaints and provide a more realistic analysis of the unusual nature of the plaintiff's symptoms and their interaction with psychological factors than Dr Mellick's bare dismissal of these factors as due to other causes.
15. Taking all of the above into account, I am satisfied that the plaintiff has discharged his evidentiary onus under s 5D to establish that the breaches of warranty by the defendant as pleaded and particularised caused the plaintiff's decompression illness.
16. I shall next consider the issue of the plaintiff's anxiety and depression.

Anxiety and depression

1. Diving was the plaintiff's life. He has now been advised in the clearest of terms that he should never dive again. He has had to shut down his business completely. He has suffered pain of a chronic nature over a long period of time. The development of psychological problems is clearly identified by Dr Anderson at paragraph 49 of his report of 30 January 2014 (Exhibit P). Associate Professor Bennett observed: "In addition, Mr Barrett is likely to be displaying behaviour and symptoms consistent with chronic ill-health and the long history of problems will be to some extent reinforced and complicated by chronic anxiety and depression about his general state of health, and his future ability to conduct his business and earn a living. This is not my field of expertise however, and I will leave expert opinion on the primary drivers of his current state of health to others more expert in these matters." (Report of Associate Professor Michael Bennett, 30 October 2015)
2. However, Associate Professor Bennett noted his limited expertise in this field: "The difficulty lies in directly relating his current symptoms to the original injury. My assessment after reading the reports of others involved in this case is that there has been considerable development of somatic symptoms that can only indirectly be related the actual injury sustained originally. Ongoing symptoms such as headaches and the neck/shoulder pain have themselves played a part in the development of further symptoms that may be more directly related to anxiety about his ongoing ill-health. The degree to which this is so is not my area of expertise." (Report of Associate Professor Michael Bennett, 30 October 2015)
3. The plaintiff's evidence in this regard is also significant. He stated: "Q. You found it hard to operate because of your memory? A. Pretty much so, I made a lot of mistakes, yes. Q. Did you find that stressful? A. It's a hard one to answer; my whole attitude's changed, like from the injury, yes, everything's gone out the window, I don't know. I don't know. So, yes, my-- Q. Emotionally I'm talking about? A. Emotionally. Q. How are you feeling now? A. Well it is extremely hard, actually I was nearly crying before because I've had something that I love and been doing for 30 years taken away from me and I can't dive anymore. Everything is about diving for me, sorry. Yes, it's all gone." (T 118)
4. I was obliged to adjourn the Court because the plaintiff broke down. When he returned, the examination continued as follows: "Q. Now we're dealing with your emotional issues. You were talking about your sense of loss, I think, in terms of your love of diving? A. Yes. Q. Let's talk now more about your physical ailments that you perceive are related to this event. I think your evidence was that you did have to exercise a fair amount of exertion to get Mr Moore out of the water, and I think that you were using your left arm to do that. Tell me about your left arm. Have you noticed any change in how your left arm feels after the event compared to before, noting that you'd had a previous problem with it. A. Since the event, I've had two lots of surgery on it." (T 118)
5. The plaintiff was still in a considerably distressed state but was able to describe his physical pain. He went on to say that he was "in a state of limbo" not only physically and professionally, but also personally.
6. The plaintiff was, to my observation, a person of fairly stoic presentation who was deeply embarrassed by having broken down in court. His emotional state about these events is apparent. I am satisfied that the plaintiff's condition of anxiety and depression is directly related to the circumstances of his accident.

The plaintiff's headaches

1. The plaintiff described his headaches as follows: "Q. If we could just deal with what you perceive to be the effects of this event, from your perspective, and we'll just start with your head if you like, the contents, not its appearance, well let's just talk about firstly the headaches, just describe to your Honour what is the current state of play in terms of the headaches? A. Well the headaches, there's something there always every day, and they just vary. Some of the days I have to just lock myself in a room and this dark room and chill out. Other days I just bump myself full of Panadeine and ‑ or Panadol, depending on the severance of them. Q. Does Panadol or Panadeine help with your headaches? A. Sometimes, not all the times, no. They've given me stronger stuff but, yes, I don't like taking them, so." (T 116-117)
2. It was put to the plaintiff that he suffered from significant headaches over a long period and that he obtained medical certificates to this effect: "Q. At the end of yesterday I had asked you a question to which there was an objection and then the matter concluded for that day and we didn't actually get an answer to the question. Can I come back and ask you this, that you may and you may not remember, but I asked you yesterday at the end of the day that if you were experiencing a significant or a severe headache at 6 March 2012, that's when you went to see Drs Cook and Plumb for your annual diving medical certificate. Do you remember I was asking you yesterday about that? A. I do remember that, yeah. Q. Do you remember I said that those doctors gave you a medical certificate for your ‑ at that time for your diving, we were talking about that? A. Yes. Q. I wanted to suggest to you that had you had significant headaches at that time you would have told them about that? A. I can't answer that. I can't recall that point, so I don't know. Q. I understand you can't remember but surely that would be a matter that you would have told them at that time had you been experiencing significant headaches? A. I just needed that certificate so I just told them what they need ‑ I need for my certificate, so yep, to keep my business running. Q. I understand you say you want to keep your business running ‑ and I think her Honour's going to get cross if you keep hitting the table. A. Sorry. Q. I understand you want to keep your business running but you were there to get a medical certificate to say you can go diving weren't you? A. Yes." (T 281)
3. The plaintiff said that he still gets headaches and that "I have one right now" (T 289). As a result, he was obliged to take frequent rests during the day: "Q. Apart from doing the tax reconciliation documents what other financial management work do you do? A. They ‑ there's some domains there which we mentioned earlier, so. Q. Do you do anything else A. Work wise for the company, no. Q. Did you do anything else other than working, doing the bookkeeping work, for the company? A. For other companies, no. Q. Could you do bookkeeping work for other companies? A. Probably not. Q. Why not? A. Because I don't have the training to start with so I don't have the certifications. Q. Apart from doing, I think you said the bookkeeping takes about 16 hours a week? A. That's right. Q. Is that done on each day? Do you do some of it each day or do you do it on some days and then do nothing on other days? A. No, I try and do a bit each day and I split it up. I might do an hour here, an hour there or two hours here, depends on how I feel, how, what things stop me, headaches, et cetera, et cetera." (T 291)
4. As is noted above, the plaintiff developed his first significant headache on the evening of the day of the incident. All of the evidence points to these headaches continuing and worsening.
5. Associate Professor Bennett sums up the evidence on the issues as follows: "Mr Barrett has been seen by two neurologists concerning his ongoing symptoms, and in particular his ongoing right frontal headaches. Both Dr Katekar and Professor Colebatch suggest the primary problem now is related to a syndrome of either migraine or tension vascular headache and Professor Colebatch specifically suggests an element of anxiety. I believe these assessments are reasonable and likely to explain the current situation. They do not imply that the genesis of the problem was anything other than the original injury in January 2012. In my opinion the transoesophageal echo and procoagulant screening are unlikely to further explain the current symptom pattern. The neuropsychological report from Dr Hepner largely concurs with the general impression that Mr Barrett is displaying complex chronic illness behaviour. Her comprehensive report identifies Mr Barrett as displaying specific deficiencies in memory, attention, emotional control and areas of frontal executive function. She agrees that this pattern is consistent with DCI. She recommends treatment for sleep apnoea, memory training and cognitive behavioural therapy may improve his symptoms and this seems entirely reasonable to me. In my opinion, her report is entirely consistent with the reports from the two neurologists and all together these show a complex post-injury complex of symptoms. The report from Dr O'Sullivan is broadly consistent with my views here. I am able to answer the question raised by him as to whether the current picture can be related to the original episode of DCI in the affirmative. I can confirm that DCI, particularly when untreated, may well be associated with ongoing complaints, some of which may never completely resolve." (Report of Associate Professor Michael Bennett, 30 October 2015)
6. I accept Associate Professor Bennett's analysis of the cause of the plaintiff's ongoing right frontal headaches. While anxiety plays a role in those headaches, as Professor Colebatch suggests, I am satisfied that the anxiety and depression are also accident-related. The headaches are part of the plaintiff's complex chronic illness behaviour but that behaviour is attributable to the accident.

The plaintiff's ear problems

1. It is not in dispute that the plaintiff had suffered tinnitus for about 20 years prior to the incident, as noted by Dr Fernandes on page 1 of his report. He had also suffered prior middle ear incidents as is noted by Associate Professor Bennett, but Professor Bennett is of the view that these have no bearing on his current condition and are not pathologically related: "Contemporaneous medical records regarding this episode are not available for examination. Mr Barrett gives a history of middle ear barotrauma of descent whist engaged in diving activities as a Navy diver. He recovered fully from this by his own account. I do not believe these have any bearing on his current condition and this is not a condition related pathologically to DCI." (Report of Associate Professor Michael Bennett, 30 October 2015)
2. Dr Fernandes considers there is no hearing loss attributable to the incident: "The hearing loss is confined to both sides to only 3 and 4 KHz, denoting an occupational noise exposure cause and unattributable to the incident. Tinnitus is only assessable in the presence of a hearing loss. As there is no hearing loss attributable to the incident, the WPI is 0% (Workcover Guides Chap 9.11 p 48)" (Report of Dr Fernandes, 9 October 2015)
3. Dr Kertesz considered the plaintiff's hearing loss was due to another condition known as presbyacusis rather than inner ear DCI.
4. The plaintiff did not initially complain to doctors about suffering from tinnitus, as he acknowledged in cross-examination. He acknowledged that he had had tinnitus for 20 years, as well as an operation for an unrelated ear condition (exostosis) which he said was "like swimmers' ear", but that this was unrelated to tinnitus. He had tinnitus continually and it had been much worse since the accident.
5. Tinnitus and hearing loss are two different conditions. Dr Fernandes in his report says that "tinnitus is only assessable in the presence of a hearing loss", which I apprehend to mean that tinnitus can be measured where there is hearing loss, but if there is no hearing loss the presence of tinnitus cannot be assessed. Dr Fernandes did, however, assess the plaintiff as suffering from 5% whole person impairment for his vestibular function being affected and this condition alone (the existence of which is not challenged) creates problems for the plaintiff's hearing.
6. I am satisfied that the plaintiff has not suffered hearing loss but has suffered loss of vestibular function of the kind described by Dr Fernandes.
7. The evidence in relation to aggravation of the plaintiff's pre-existing tinnitus being of an unsatisfactory nature, I propose to limit my findings to the loss of vestibular function described by Dr Fernandes.

The MRI lesion

1. As Associate Professor Bennett notes in his report, this lesion appears to pre-date the incident and has little bearing on the plaintiff's current state of health: "In this I am guided by the expert opinion of Dr Katekar. I believe his conclusion that this lesion predates the incident in January 2012 means it can have little bearing on his current state of health. The lesion does not seem to have been associated with any pre-accident symptoms or signs and I believe it represents an incidental finding. Professor Colebatch has suggested some further investigation that might have a bearing on this assessment. I note a small patent foramen ovale (PFO) has been noted on transoesophageal echo and that there are plans to have this closed. On balance, given his long and uneventful diving history and the failure of published work to demonstrate a significant association between small PFOs and serious DCI, I believe it remains unlikely that the MRI lesion has any bearing on his current health." (Report of Associate Professor Michael Bennett, 30 October 2015)
2. As noted above, I am satisfied that the plaintiff's injuries arise from his decompression injuries rather than the lesion, and accordingly this plays no part in the plaintiff's injuries either by way of an explanation for his symptoms or as an injury caused by the incident.

The patent foramen ovale ("PFO")

1. As noted above, the PFO is excluded as being either a cause or a result of the plaintiff's symptoms. I note the explanation of this abnormality by Associate Professor Bennett as follows: "The PFO is a developmental abnormality that would have been present since birth. The natural history is for such holes to close or get smaller over time, but a proportion of adults continue to have demonstrable connection between the two atria of the heart. The PFO was in no way caused by the incident. The potential significance of the PFO is rather the reverse. The PFO may have allowed the passage of bubbles from the right side of the circulation, where they are often harmless, into the left heart and then into the brain where they have caused the clinical injury. In the case of Mr Barrett I think this is unlikely given that the hole is very small, and small holes have not been associated in the past with serious DCI, and because of Mr Barrett's previous extensive diving history without DCI. The investigations ordered by Professor Colebatch are both part of a search to determine if the passage of a small blood clot through a PFO may have caused the MRI abnormality at some time in the past. I am not expert to answer that question, but it appears unlikely to me." (Report of Associate Professor Michael Bennett, 30 October 2015)
2. I am satisfied that this condition plays no part in the plaintiff's injury-related health either as a cause or a result of the circumstances of his accident.

The plaintiff's surgery

1. The plaintiff underwent surgery to his left elbow on 6 May 2015 to remove a loose body from the elbow. This also required drilling a core into the elbow. This operation was performed by Dr Petrelis.
2. The defendant submits there is no evidence the plaintiff struck his left elbow and therefore no explanation as to how the subject accident could have resulted in a "loose body" being in the plaintiff's elbow. No report from Dr Petrelis is available.
3. The plaintiff agreed he did not report any elbow problem, saying he needed a medical report to keep his shop open and minimised his symptoms accordingly. He had no recollection of striking his left elbow on 15 January. It was as a combination of his neck, shoulder and elbow problems, together with the fact that his memory was so bad, that his ability to work was limited.
4. The problems with the plaintiff's left elbow became apparent when the plaintiff went to Queensland for the purpose of having further investigations into his ongoing problems. He had been diagnosed with serious and potentially fatal brain injuries and he was anxious to ensure that these were properly investigated.
5. The circumstances in which the plaintiff's injury to his elbow occurred cannot be established. Even on the basis of "possibility" (Tubemakers of Australia Ltd v Fernandes (1976) 10 ALR 303), the plaintiff has not discharged the onus of proof pursuant to s 5D that this injury is causally related.

Conclusions concerning the plaintiff's non-economic loss

1. All of the evidence points to the plaintiff suffering from chronic and unremitting symptoms of physical pain and impairment in his neck as well as intellectual problems and a degree of memory loss. This has been added to by a secondary injury to his right shoulder following a related fall resulting from his dizziness. He can never dive again, a significant loss for someone who lived for diving. In addition to memory lapses he suffers from significant anxiety and depression problems as the medical reports set out above indicate. These include mood swings as well as depression. These are significant problems because the impact of the loss of his main interest in life, which is also his career, has clearly hit him hard.
2. Both the plaintiff and defendant have given realistic and sensible estimates for general damages. The plaintiff submits it is 30% and the defendant submits it is 26%. I am satisfied that 29% is a realistic estimate, taking into account the severity and unusual nature of a number of the plaintiff's ongoing disabilities. The increase in tinnitus to which he refers would make little difference, and the surgery performed by Dr Petrelis I find to have been unrelated has now resolved this problem, so my findings on these issues do not warrant a significant revision of the plaintiff's claim for non-economic loss. Accordingly, the plaintiff is entitled to non-economic loss at 29%.

Past and future out-of-pockets

1. Past out-of-pocket expenses have been agreed at $51,419. This figure will need to be adjusted to remove any sums claimed for the plaintiff's elbow surgery. As I was not given a breakdown for this figure, it is not possible for me to make this reduction. I have granted liberty to apply in relation to damages generally and this adjustment can be included in the mathematically agreed judgment sum.
2. The plaintiff makes no claim for future out-of-pocket expenses because of his Royal Navy Veteran's Gold Card which covers him as a form of private policy of health insurance.

The parties' methodology in calculating past and future economic loss

1. The plaintiff's assessments for past and future economic loss are set out in the schedule above. The defendant's estimate of past economic loss at $47,000 is arrived at by being based on the net income as disclosed in the plaintiff's 2010-2011 income tax return, namely $440 net per week for 212 weeks, being $93,280 less 50% for retained capacity, making a total of $47,000. The future economic loss is similarly calculated at 50% of $440 net per week times 625, minus 15% for vissicitudes ($440 x 50% x 625 x 0.85), namely $117,000 (rounded up from $116,875).

Past economic loss, past loss of superannuation and Fox v Wood

1. The plaintiff's figure for past economic loss is formulated on an allowance of $1,000 gross and $812 net.
2. The plaintiff particularised his past and future economic loss in his statement of claim as follows: "15. The Plaintiff, prior to his injury, was self-employed through his company Frew Investment Holdings Pty Limited t/as Charlestown Diving Academy. Since the injury he has suffered various periods of total and partial incapacity and thereby claims economic loss, on the basis that he was unable to participate in any remunerative employment since the injury. 16. The Plaintiff also alleges, as a result of the injury, he will have impairment of his ability to engage in work on the open labour market, including work in fulltime and unrestricted duties and claims to be compensated in a manner to be determined by the Court for such future losses. 17. The Plaintiff alleges he has also suffered loss of opportunity to receive employer sponsored entitlements to superannuation, presently 9.5% of gross salary, and claims for such loss in a manner to be determined by the Court."
3. The plaintiff's evidence was that after he became unable to dive he simply shut down his shop. As is set out in the schedule of damages set out above, the plaintiff's claim is not based on what the company could afford to pay him (which was $440 per week) but for a loss which more accurately reflected the plaintiff's actual loss of his business. This was done on the basis of average weekly earnings.
4. The defendant's submission was that this was an incorrect basis upon which to determine the plaintiff's past and future economic loss. The plaintiff had been working at the diving academy since appropriately 2005. He stopped carrying out more lucrative work in order to set up the diving academy. His tax returns show in the year immediately preceding the accident he was earning $440 net per week. The defendant accordingly submitted that his income should be calculated on a net income of $440 per week, and not on the average weekly earnings.
5. Mr Reynolds accepted that the tax benefits of the plaintiff's company were considerable, but argued that this would sound in economic loss rather than non-economic loss. While he lost the advantage of having his own company, including the benefit of having his company pay personal expenses such as telephone and car benefits (as is set out in the company tax returns) he has lost that benefit.
6. This is not a case where the plaintiff has deliberately understated his income in order to avoid income tax: AMP General Insurance Ltd v Kull (2005) 44 MVR 339.
7. The New South Wales Court of Appeal considered this issue in Morvatjou v Modadkhani [2013] NSWCA 157. Mr Hart also referred me to Dessent v Commonwealth of Australia (1977) 13 ALR 437, a decision discussed in New South Wales v Moss (2000) 54 NSWLR 536 at [86] as follows: "[86] It is true that in some cases the courts have supplemented exiguous evidence by resort to judicial notice. The courts have inferred that rates in private employment are not lower than in public employment. Thus in Dessent v Commonwealth of Australia (1977) 51 ALJR 482; 13 ALR 437, Mason J and Aickin J were prepared to assume that the earnings of a carpenter in civilian life would be not less than those of the plaintiff carpenter while in the Royal Australian Air Force, that is, $100 per week net, and said (at 487; 447): "it would be reasonable to assess the appellant's loss of earning capacity at not less than 25 percent of his full capacity, that is $25 per week …". In Leis v Gardner (at 187), Stable J thought it "notorious that an unskilled man does not overall get the same economic rewards as a skilled man. Were it otherwise, then why bother acquiring a skill at all?" He upheld a verdict of which one ingredient was $500 for loss resulting from incapacity to work as a bricklayer despite the lack of evidence of the difference in earnings. But in many instances substantial damages have been assessed for impaired earning capacity despite an absence of evidence about earnings and an inability to take judicial notice of them."
8. The Court of Appeal went on to note at [87]: "[87] In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allan v Loadsman [1975] 2 NSWLR 789 at 792 are not correct: Baird v Roberts [1977] 2 NSWLR 389 at 397-398, per Mahoney JA; J K Kealley v Jones at 732-735, per Moffitt P; Yammine v Kalway at 154-155 and 156-157, per Reynolds JA and Mahoney JA; Thiess Properties Pty Ltd v Page (1980) 31 ALR 430; see also Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 761, where Samuels JA criticised the "meagre facts" provided but did not say it was not open to the jury to find a substantial sum for diminished earning capacity by the "application of their own knowledge and experience". The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury's task satisfactorily."
9. In the present case, there is extensive information in the form of vocational assessments carried out by the plaintiff's company's workers compensation insurer. It is generally agreed that, as Associate Professor Bennett notes, the plaintiff can never dive again. He clearly has a residual earning capacity, although his loss of intellectual function is asserted to warrant a 70% deduction of his earning capacity.
10. The plaintiff's whole work history has involved being a diver, working in constructions and in and around ships since he was 18 years of age, including eight years in the navy. It is acknowledged that the uncertainties of his past financial arrangements would warrant a higher than usual percentage of vicissitudes (an unusual submission since the defendant left these vicissitudes at 15%). There is also the question of the plaintiff's veteran's entitlements, but the information I have on this is limited and as Mr Reynolds did not deal with it, I do not propose to do any more than note it.
11. The plaintiff has suffered a loss of opportunity of the Malec v J C Hutton Pty Ltd (1990) 92 ALR 545 variety, in that he has been obliged to close down his business and reorganise his life. In those circumstances, the average weekly earnings, as opposed to the actual earnings the company was able to give him of $440 a week (which Mr Hart noted in submissions should have been $1,000 per week), is not an accurate guide.
12. Taking all of the above into account, I propose to use the average weekly earnings of $1,000 gross and $812 net per week. Given the long drawn out process of the plaintiff identifying precisely what was wrong with him (which I note included a trip to Queensland for extensive further investigations), I am satisfied that the figure of 70% for past economic loss as estimate by the plaintiff is reasonable. Accordingly, I would award the plaintiff past economic loss in the sum of $142,760 sought by the plaintiff. This would include past superannuation of 11%, which totals $15,705.
13. I also note that there is a Fox v Wood adjustment to be made. This will need to be adjusted as well (see the figure referred to in the plaintiff's schedule). As I have granted liberty to apply, the parties may either adopt the figure given by the plaintiff for Fox v Wood or seek liberty to apply if this figure cannot be mathematically agreed.
14. This brings me to the question of the plaintiff's future economic loss.

Future economic loss and future loss of superannuation

1. The plaintiff's claim is for 70% of current average weekly earnings of $1,112 net per week with a factor of 625, less 20% for vicissitudes, making a total of $389,200. While I accept the percentage for current average weekly earnings, the vocational reports do demonstrate that the plaintiff has an ability to work and I accept the submission of Mr Reynolds that the percentage should be 50% and not 70%. I also accept the 20% vicissitudes figure estimated by the plaintiff. Accordingly, the sum in question will be $1,112 x 50% x 625 x (100% - 20%), making a total of $278,000. The plaintiff is also entitled to future superannuation at the rate of 13.79% of net future loss.

Costs and interest

1. The plaintiff has been successful on all issues, save for some findings in relation to tinnitus and the elbow surgery. Costs should follow the event.
2. I have granted liberty to apply in relation to costs and interest as the parties have asked if they could address these issues after judgment has been handed down.

Orders 1. Judgment for the plaintiff. 2. Liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed damages sum. 3. Defendant pay plaintiff's costs. 4. Liberty to apply in relation to interest and costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2016