Daniel Gerard FITZGIBBON v THE WATERWAYS AUTHORITY & ORS

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 20293/99 FILE NUMBER(S) : LOWER COURT NEWMAN AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41223/02

MEAGHER JA SANTOW JA FOSTER AJA Wednesday, 3 December, 2003 Daniel Gerard FITZGIBBON v THE WATERWAYS AUTHORITY & ORS

Judgment 1 MEAGHER JA: I agree with Foster AJA. 2 SANTOW JA: I agree with Foster AJA. 3 FOSTER AJA: This is an appeal from the decision of a judge sitting in the Common Law Division of the Court on 20 December 2002. His Honour dismissed the claim of the plaintiff, Daniel Gerard Fitzgibbon, against each of the defendants, entered judgment for each of them and also judgment for the cross-defendants in respect of the various cross-claims that they had brought amongst themselves. By his appeal, the appellant (to whom I shall also refer as "Mr Fitzgibbon") asserts that his Honour erred in dismissing his claim, in that the basis upon which the dismissal occurred involved errors of fact and defects in his Honour's reasoning. A new trial is sought on a limited basis to which I shall refer later. Alternatively, it is claimed that his Honour failed to provide adequate reasons for his decision, with the result that a full new trial should be ordered. 4 Mr Fitzgibbon suffered the injuries in respect of which he sued when he struck his head upon the sandy bottom of shallow waters within the premises of the Middle Harbour Yacht Club. The accident occurred during the evening of 29 March 1997 and resulted in Mr Fitzgibbon becoming a high level quadriplegic. At this stage, it is convenient to set out, briefly, some background in relation to Mr Fitzgibbon and his accident, which is not the subject of dispute in the proceedings. 5 At the time of the accident, Mr Fitzgibbon was aged twenty years and was a resident of Queensland. He had successfully completed his school education and had entered the Queensland University of Technology, with a view to obtaining a degree in applied science in construction management. He was in the third year of his university course. For a number of years he had been a keen participant in the sport of sailing. He had been a State champion in the racing of a small boat class, known as Sabots. From that class he had graduated to the four-twenties class, a somewhat larger racing sailing boat, in which he had had marked success in both State and National titles. At the time of his accident he was present in Sydney for the purpose of racing in a regatta, in which the four-twenty class was participating. Competitors in this regatta came from all over Australia. From Mr Fitzgibbon's point of view, it was an important event, which provided a stepping stone to competitive sailing in the four-seventy class, which was an Olympic games class. Mr Fitzgibbon had had a significant level of success in the Australian titles in the four-twenty class, held in Hobart in the previous summer. He had a realistic ambition to win the Australian titles in the four-twenty class later in the year, progress to the four-seventy class and then participate, as an Australian representative, in the next Olympic games, in that class. The evidence indicates that he was a healthy, young man engaging in a variety of out-of-door activities, which, as well as sailing, involved scuba diving, water skiing and competitive swimming. He had performed well in the regatta and was intending to sail competitively upon the day following the evening of the accident. 6 The sailing regatta for the four-twenties class was conducted partly out of the Middle Harbour Yacht Club premises and partly from the premises of the Woollahra Sailing Club. A social function had been arranged for the evening of 29 March 1997, to be held at the premises of the Middle Harbour Yacht Club. It was described as the "Yachtsman's Ball" although, apparently, it was primarily a social evening, during which participants in the regatta could mingle and enjoy each others company. There was a small admission fee, which allowed entrants to use the club's bar facilities and gather together in a function room of the club and upon an adjacent boardwalk area, which was associated and continuous with a jetty area, which led towards the club's marina facilities, where boats were moored. The boardwalk and jetty enclosed an area of sandy beach, which led to the water over which the jetty was built. The waters were tidal, with the necessary result that the extent of the sand and the depth of the adjacent water varied throughout the day. 7 The evidence in the case is replete with plans and photographs of the club premises where the function was held, the boardwalk and jetty and the sand and adjacent water. This material makes it clear that the main building of the club, in the bottom storey of which was situated the function room and bar, pointed in a roughly southerly direction towards the sand and water, as did the main area of the boardwalk. The jetty associated with the boardwalk pointed outwards, in a roughly easterly direction. The photographs were, obviously, taken at a low point in the tide. They indicated that the relevant parts of the boardwalk and jetty, being the areas where the events leading up to the appellant's accident occurred, were situated quite close to the sand. At the point more or less opposite the entrance from the function room to the boardwalk, the boardwalk, itself, was only a fairly short step above the sand. From the area further to the east along the jetty, in the vicinity of where Mr Fitzgibbon entered the water and struck his head, the distance from the floor of the jetty to the sand was greater but still only small. The evidence suggests a drop of about 1.5 metres. The photographs show only the sand at the foot of this area of the jetty. However, at the time of the accident, the tide was in, with the result that the sandy bottom was covered by water. The water would have, however, been significantly shallow. The accident took place at night. There was lighting on the jetty but, according to the evidence, this did not illuminate the sandy bottom so as to give any indication of its depth. There was no railing along the seaward side of the boardwalk and associated jetty, to prevent a person falling from the boardwalk or jetty onto the sand or into the water. Along the extreme edge of the boardwalk and jetty there was a fixture, described in the evidence as a toe-board, painted white and being about 200 cm in height. This marked the edge of the boardwalk and jetty but, obviously, did not provide any sort of barrier, which might prevent persons in the area from falling outwards onto the sand or into the water. 8 A large number of young people attended the function. Estimates in the evidence vary from fifty to a hundred and fifty. The exact number is of no consequence. There was, obviously, a sufficient number of persons present to create a crowd. It was a gathering at which alcoholic liquor was consumed but the evidence makes it clear that, apart from ordinary high spirits and exuberance, appropriate to such an occasion, the gathering was well-behaved. Mr Fitzgibbon had partaken of some alcohol. The evidence, however, does not suggest that he was affected to any significant degree. It does not appear that his ordinary judgment was impaired or that there was any likelihood that he would engage in behaviour which he would not have undertaken if sober. As indicated in the evidence, he was to sail in an important race the next day and had that in mind. 9 One of those present was a young sailor, named Nathan Wilmott. It appears that he was well known to the other participants. He had won the National titles in Hobart the previous summer. There was a tradition that the winner should, at the conclusion of the regatta, be "dunked" in the harbour where the regatta was sailed. It had not been possible for this ritual to be performed in Hobart and there was an intention on the part of some of those present that it should be performed during the evening of the Yachtsman's Ball. This, in fact, occurred. A small group took hold of Mr Wilmott, removed him from the position where he was seated inside the function room, marched him out onto the boardwalk and "dunked" him in the shallow water off the beach. I shall refer to the evidence as to the manner in which he was introduced into the water and his activities immediately thereafter, later in these reasons. There was a suggestion in the evidence that Mr Fitzgibbon was part of the group involved in the "dunking" ritual. He denied this. His Honour made no finding that he was so involved. The preponderance of evidence suggests that he was not. It is appropriate, in my view, to approach this appeal on the basis that he took no part in it. 10 The evidence makes it clear that Mr Fitzgibbon, as he himself asserted, took an interest in what was happening and moved with a throng of others along the boardwalk and further up the jetty in order to obtain a view. The appellant, as a result of this movement, reached a position where he was standing on the outer extremity of a throng of young people with his feet up against the toe-board at the edge of the jetty. From this position and whilst surrounded by the throng, he entered the shallow water in front of him, collided forcibly with the sandy bottom and broke his neck. 11 It will be necessary to consider later, in greater detail, factual material in the case. However, the above recitation is sufficient to provide the background to the claim that Mr Fitzgibbon brought against the defendants. In the circumstances of this appeal his case may be stated quite succinctly in the manner in which it appears in the "Differential Case Management Document" filed on his behalf, by his solicitors. It was put in the following terms:- "The plaintiff was in a group of people adjacent to the edge of a boardwalk/jetty area which led to a marina where boats were moored. Below the jetty where the plaintiff stood was an area of shallow water and sandy bottom. The plaintiff fell from the jetty area and struck his head on the sandy bottom, causing serious injury, principally quadriplegia. There was absent any handrailing on the water edge of the aforesaid boardwalk/jetty area to prevent the plaintiff's fall from the boardwalk/jetty, there was no warning sign as to the shallowness of the water below the boardwalk/jetty and the state of lighting was such as to deceive persons as to the depth of available water. The owner and the occupier, and the responsible local government authority, failed to ensure that appropriate safety features were incorporated into the built premises to prevent the plaintiff's entry into the shallow water." 12 The first defendant/respondent, the Waterways Authority was, relevantly, the owner of the land upon which the boardwalk and jetty was situated; the second defendant/respondent, Middle Harbour Yacht Club was the occupier of the relevant premises; and the third defendant/respondent, Mosman Municipal Council, was alleged to be the responsible local government authority. It may be noted that the appellant's case was further elaborated to the extent that, whilst he was positioned at the edge of the jetty, he was nudged or jostled from behind, in a manner which led to him losing his balance and falling forward. 13 The respondents' defences to Mr Fitzgibbon's claim, as indicated in their pleadings and set-out in their Differential Case Management Documents, filed approximately three years after the accident, did not take issue with Mr Fitzgibbon's allegations as to the way in which the accident occurred. Their defences and the cross-claims amongst themselves related to the question of whether there existed any duty of care to Mr Fitzgibbon, which involved the requiring or providing of adequate railing on the seaward edge of the jetty. The narrative of facts provided in the documents by each of the defendants accepted that he fell into the water or was pushed and fell. Significantly, no allegation was made that the appellant deliberately dived into the water. 14 This being so, it was somewhat surprising that there emerged at the hearing, as a major issue between the parties, the question whether Mr Fitzgibbon deliberately dived into the water from the jetty. Not only did it become a significant issue but it was accepted that a finding by the trial judge that Mr Fitzgibbon had deliberately dived would require that his claim be dismissed and that a verdict be entered in favour of the defendants. 15 The learned primary judge found in favour of the defendants on this issue. He held that the appellant had deliberately dived into the water. He found verdicts in favour of the defendants, based simply upon this finding of fact. Accordingly, the defendants' other defences based upon absence of a duty to provide safety railing, were not the subject of consideration or decision in his Honour's judgment. 16 In this appeal, the appellant seeks a reversal of his Honour's finding that he deliberately dived into the water or a determination that his Honour's reasoning in relation to this finding was so flawed as to require that this aspect of the case be reheard. A rehearing is also sought on the basis of inadequacy of reasons. In the event of any of these grounds being established, of course, a further hearing will be necessary, as the other issues in the case have not been the subject of determination. 17 Mr Fitzgibbon called six eye-witnesses in support of his contention that he did not dive but overbalanced and fell head first into the water. It will be necessary to consider the evidence of these witnesses later in these reasons. However, at this stage, it is convenient to consider his Honour's reasons for judgment.

The primary judge's reasons 18 His Honour stated the plaintiff's case as follows:- "The plaintiff's case as to how it was that he fell from the jetty was either:- (a) that he fell from the jetty having been jostled by other persons upon it, or (b) that, while on the jetty, he was pushed by some person or persons who were also upon it causing him to fall. Essentially it was the plaintiff's case at trial that the failure of the defendants in their various capacities to ensure that a handrail had been erected along the jetty's edge was the key factor in the events which led to the plaintiff entering the water. In short, the plaintiff's case was that the defendants' failure to ensure that a handrail was built along the jetty's edge was a breach of their respective duties to obviate the risk of injury to persons on the jetty." 19 His Honour then noted that the three defendants all alleged that the plaintiff had deliberately entered the water "by diving from the jetty's edge" and that "the presence or absence of a handrail on the jetty's edge was irrelevant to this mode of entry." (Although this was not a point raised in argument, one might be pardoned for wondering why this was irrelevant - the presence of a handrail might well have prevented "this mode of entry".) 20 His Honour then referred to the issue of diving as being "the prime factual issue in the case" and turned to consider the evidence on that issue. After referring to the layout of the premises and the ritual dunking of regatta winners, he referred to the commencement of the dunking of Nathan Wilmott and Mr Fitzgibbon's moving to a position on the jetty to observe proceedings. He noted that Mr Fitzgibbon had not seen Wilmott actually enter the water but had heard a splash, after which he said that "he saw Wilmott standing in the water probably ankle - or knee - deep in the water." Wilmott was in the water to the right of the appellant's position. His Honour then recorded the plaintiff's evidence-in-chief as to how he entered the water, as follows:- "Q. --what you experienced? A. Well, it was a nudge from behind as I was on the edge which put me off balance and it - and I couldn't recover because my feet were butted up against this raised timber edging, I couldn't put my feet out to stop my momentum so I just fell forward. WHEELAHAN: Q. Do you recall anything about the way in which you fell? A. With regard - sorry? Q. You have told his Honour that there was this nudge from behind? A. Yes. Q. You lost your balance, you went forward? A. Yep. Q. Do you recall what inclination you adopted as you went down? A. Well, I think I tried to-- HIS HONOUR: No, no. WITNESS: Sorry, I tried to counteract it by putting - by swinging my arms back. WHEELAHAN: Q. Did that do any good? A. No, no, I just toppled there. Q. What did you strike? A. The bottom, the sandy bottom it was. Q. With what? A. My head. Q. What did you notice about yourself? A. I didn't notice anything at the time. I did black out. The next thing I remember, I - it was quite a bit of commotion and water and - and looked up and there was Nathan Wilmott looking down at me and I noticed I couldn't control - like I couldn't stand up or couldn't control what was happening." 21 His Honour noted that the plaintiff did not vary from this description in cross-examination. He added:- "However, in answer to questions put to him by senior counsel for the first defendant the plaintiff denied that he had dived into the water. Not only that, when it was put to the plaintiff that he had later in the evening told a doctor at North Shore Hospital that he had entered the water by reason of diving he claimed that he had no recollection of any conversations with doctors at the hospital." 22 The transcript indicates that when Mr Fitzgibbon was asked whether he deliberately dived into the water. He denied this and, contemporaneously, there was an objection to the question. The transcript then continued as follows:- "OBJECTION WHEELAHAN: Never been pleaded. Never been particularised. Never been alleged. My learned friend has raised issues of contributory negligence. Well, I assume that this is directed to that issue. HIS HONOUR: I would think so. Pretty obvious, I would have thought. BRIDGE: And primary liability, your Honour. HIS HONOUR: Quite right. It's not just contributory negligence. It goes to the heart of the talks". (Obviously, the "tort")" 23 It would appear that this exchange amounted, in effect, to an over-ruling of the objection. The question was put again and Mr Fitzgibbon again denied deliberate diving. It was also suggested to him that he had not tripped or been pushed from behind. He denied that suggestion. 24 His Honour, in his judgment, then referred to the layout of the function room, timber deck and jetty and the position of light poles and marina berths. He discussed the evidence as to the number of people who were present at the function and expressed the view that there was no real issue that "at the time the plaintiff left the wharf to enter the water he was surrounded by a number of people," there being "nothing in the evidence relating to the group around the plaintiff at that time which makes his allegation that he was either jostled or pushed other than a feasible explanation." 25 His Honour then made a survey of the witnesses called by the plaintiff "in support of his allegation that he entered the water because he either over-balanced on the upraised plank or was pushed." He referred to the evidence of Vincent James, Sarah Roberts-Thomson, Adam Roberts-Thomson and Luke Molloy. He set-out portions of the transcript of their evidence. I shall not set them out at this stage, as I intend to refer in greater detail to their evidence later in these reasons. The portions set-out, however, all indicate observations of the appellant's having over-balanced at the edge of the jetty and fallen forward, there being no indication of purposeful diving. His Honour also referred to the evidence of Matthew Von Bibra, who also gave evidence-in-chief of the appellant's having lost balance. He set-out some portions of his cross-examination and made the comment that "there is some inconsistency between the evidence Von Bibra gave in chief and the statement he had earlier given to the plaintiff's solicitors and his answers to representatives of the defendants which are outlined in the questions and answers in cross-examination which I have set-out." I shall refer later to the question of this inconsistency. At this stage I note that his Honour made no finding as to the effect of this on the acceptability of Von Bibra as a witness and the reliability of his testimony. His Honour simply remarked:- "However, the other witnesses called on behalf of the plaintiff maintained the evidence-in-chief when subject to cross-examination." 26 The learned primary judge then made some reference to the issue "as to how Wilmott had entered the water", noting that "the plaintiff, Messrs. Felton, James and Adam Roberts-Thomson and Sarah Roberts-Thomson deposed that they did not see how Wilmott entered the water." He contrasted this evidence with that of Luke Molloy, in a passage which he set-out in detail and which I will summarise as follows. He said that the appellant was part of a group of ten involved in escorting Nathan out. He said that he saw Nathan Wilmott thrown into the water from the decking, that he did not fall over but he couldn't recall his entry into the water. He was standing approximately waist deep in the water. He was not lying in the water and not "making as though he had been injured or was in distress." He was just "floundering around in the water". He also said that when Nathan was thrown in he "had a bit of a swim and then stood up". He indicated that by "floundering" he meant "sort of walk around in the water. Moving. He was just standing-up still, he was moving around in the water." He further said that Nathan "got completely immersed" but that the swim was very brief and that "he didn't really move anywhere from where he was thrown in. Maybe two metres." The final question and answer quoted were as follows:- "Q. And he stood up and floundered? A. Yes.

Q. And it's after that that Daniel was in the water? A. Yes." 27 His Honour then made the following comment in relation to this evidence:- "Molloy's evidence is clearly contradictory of the plaintiff's evidence relating to his part in the manner in which Wilmott entered the water. Molloy has the plaintiff as an active participant in the dunking of Wilmott whereas, of course, the plaintiff maintains his part was no more than a spectator. Not only that, Molloy deposes that Wilmott's actions in the water involved him carrying out a range of activities which were much more extensive than him merely standing up as all other witnesses called by the plaintiff deposed to. The contradictory nature of Molloy's evidence is of some importance when the evidence called by the first defendant in the matter is taken into account."

It is difficult to determine what significance this paragraph has in the general flow of his Honour's reasoning. I have already indicated that the preponderance of evidence in the case is to the effect that the appellant played no part in the dunking of Wilmott, with the result that Molloy's evidence, if truly contradictory, is so not only of the plaintiff's evidence but also that of other witnesses. Moreover, Molloy's evidence appears to stop fairly short of asserting that the plaintiff was "an active participant in the dunking." Also, a reading of his evidence hardly seems to bear out that he was asserting a "much more extensive" range of activities than those deposed to by other witnesses. If there be, in fact, a significant contradiction between Molloy's evidence and that of the plaintiff and the other witnesses then, with respect, I am not able to determine what effect his Honour gave to this contradiction. Did he accept Molloy as against the other witnesses and, if so, what effect did this have upon the substance of the plaintiff's case? His reference to "the evidence called by the first defendant" could not include any eye-witness evidence, as none was called, despite the large number of persons who were present and who would have also witnessed the critical events. Moreover, in the next paragraph of his Honour's judgment, he says:- "The evidence called by the plaintiff as to the events surrounding him entering the water is of such nature that in the absence of any evidence called on behalf of the defendant I would have come to the conclusion that the plaintiff had established his case that he had either tripped on the raised board at the eastern edge of the jetty or was pushed or jostled by those surrounding him or indeed a combination of both factors and thus he would be entitled to have the matter determined on that factual finding. While it is true that certain of the evidence given by witnesses called on his behalf when viewed alongside his evidence has contradictory elements in it, those contradictory elements would not be sufficient in my view to displace my base view that the plaintiff had established his case on a balance of probabilities." 28 His Honour does not indicate, in this paragraph, what were "the contradictory elements" to which he was making reference. The evidence called by the plaintiff included, of course, the evidence of Mr Molloy. It would seem that the "contradictory" elements in that evidence would not, in accordance with his Honour's reasoning, have prevented the plaintiff's establishing his case. Accordingly, the result, so far, would seem to have been that his Honour was of the view that the plaintiff had, through his evidence and that of the witnesses he had called, established his assertion that he had lost his balance and fallen rather than deliberately dived, despite minor evidentiary discrepancies of the kind normally to be expected in the testimony of a number of eye-witnesses to an event. In particular, he makes no adverse findings as to the credibility of any of these witnesses, who had all given evidence before him and whose demeanour in so doing would have been clearly observable. 29 However, notwithstanding these statements, his Honour, ultimately, did not accept the plaintiff's case. As he stated in his judgment, he did not do so "because of oral evidence given by Dr Trevithick, the emergency registrar at Royal North Shore Hospital on the evening in question." Mr Fitzgibbon had been taken to the hospital by ambulance, which had been summoned urgently to the Middle Harbour Yacht Club, shortly after the accident. Dr. Trevithick was the first medical officer to examine him upon his arrival at the hospital. His Honour expressed the view that the doctor's oral evidence was supported not only by the doctor's notes on the evening "but also by notes made by other personnel at Royal North Shore Hospital and by ambulance officers of statements made to them by the plaintiff when he was being transported to Royal North Shore Hospital and after his arrival at that institution." 30 After recording that the doctor had deposed to a clear recollection of the events of the evening, during which he had had no less than five major trauma cases coming through the department, the learned primary judge noted that the doctor remembered that the plaintiff had been completely alert and capable of speaking to him and that while he smelt of alcohol, he did not appear to be affected to such a degree as to constitute a concern in his management. He then set out the doctor's oral evidence as to what the plaintiff had told him about the circumstances of the accident, when the doctor first saw him at the hospital. The evidence was as follows:- "He said to me that he had been on a wharf at Middle Harbour Yacht Club and when one of his friends was pushed into the water during - I don't think I can actually use his exact words after this length of time, but some skylarking perhaps, or high jinks - it's a bit hard to describe what I am trying to say - some episodes of hilarity on the wharf and enjoyment following winning a sailing regatta - when one of his friends was pushed into the water, he dived into the water because he was - he thought his friend was at risk of drowning and he dived in to the water from a height of about 1.5 metres, hitting his face on the bottom of the - on the ground - when I say - on the bottom of the water because the water depth was quite shallow at the time and he was - then felt completely numb in his limbs and had to be rescued by onlookers". 31 His Honour said of the doctor that his answers in a searching cross-examination served to confirm his evidence-in-chief and that he was a most impressive witness. He accepted that the doctor had a very clear recollection of the events of the evening and that he accepted his evidence "as being that of a truthful witness". That evidence was "entirely consistent with the note he made of his conversation with the plaintiff that evening", the note reading:- "Visiting Sydney with friends for sailing regatta. Had several alcoholic drinks with friends. One friend was thrown into the water at the Spit and pretended to drown so Daniel dived 1.5m into shallow water, striking his mouth on the bottom - he was paralysed immediately, rescued by onlookers - Ambulance attended and placed cervical collar." 32 His Honour then referred to support given to the doctor's evidence by notes made by other persons. He set out the nursing trauma admission note which read:- "Patient BIBA after diving (the word 'jumping' crossed out) into water off Spit Bridge 1.5 metres head first into H0…Patient alert & orientated."

BIBA means "brought in by ambulance". The admission note appears under the sub-heading of "Diving Accident".

The nurse who made this note in relation to the appellant's admission was not called to give evidence. The appellant had, of course, not dived off the Spit Bridge, which is some distance from the Middle Harbour Yacht Club and could not, conceivably, be confused with it. 33 His Honour then made reference to the appellant's having been seen by a Dr Sew Hoy at 12.45am on the morning of the 30th March, at which time that doctor made a note "no recollection of having fallen? dived into the water." His Honour said of this note that it was history given to the doctor by the plaintiff and that it was equivocal. His Honour then noted that when another medical practitioner, Dr Liston, saw the plaintiff later, in the intensive care ward, he made a record of the following history:- "20-year-old male; previously well; acute spinal injury secondary to diving into shallow water under the influence of ETOH."

Neither Dr Sew Hoy or Dr Liston was called to give evidence. 34 His Honour made reference to the Patient Report prepared by the Ambulance Service of New South Wales which read:- "? Spinal injury. 20-year-old male dived approximately 1.5 metres landing face first in shallow water." 35 His Honour then referred to a number of submissions which had been made on behalf of the appellant, in relation to Dr Trevithick's evidence. As these are relied upon in submissions made to this Court, I shall refer to them later in these reasons. His Honour disposed of these submissions and, in effect, of the plaintiff's case in the following paragraph:- "None of the arguments advanced on behalf of the plaintiff in any way reduces the view I have formed as to the credibility and reliability of Dr Trevithick's evidence. I am of the view that Dr Tevithick was not only a truthful witness but also a reliable one. I accept fully that he had a clear recollection of what he was told that evening by the plaintiff. As I have already indicated his evidence does not stand alone, it is supported by notations made by others who had the care of the plaintiff on that evening. In my view it overcomes the probative value of the evidence given by the plaintiff and those called in his case. I should add that even if those other notations did not exist, my view as to the probative value of Dr Trevithick's evidence would be unchanged." 36 His Honour then stated his factual conclusion that, on the balance of probabilities, the plaintiff had dived from the jetty. Accordingly, he dismissed the plaintiff's claim and made the orders to which I have already referred.

The Appeal 37 The appellant's main submission is that the learned primary judge simply erred in his evaluation of the evidence in the case. He attributed far too much weight to Dr Trevithick's evidence of alleged admissions by the plaintiff and, in the passage set out above, simply brushed aside the accumulation of powerful evidence given by the eye-witnesses called by the plaintiff. Indeed, one such witness, whose evidence was of the greatest importance, was not even mentioned in his Honour's judgment. It was also submitted that little or no weight was given to arguments which sought to reduce the value of Dr Trevithick's testimony and the significance which could be attributed, reasonably, to the alleged admissions of the plaintiff. In order to address these arguments it is necessary to consider, in some detail, the evidence in the case. 38 I have already mentioned some of the plaintiff's evidence. It is necessary to mention other parts of it. He stated that he was with a group of people outside the bar area on the timber deck or boardwalk, where there was a large number of people. He heard "a bit of joking around, bit of laughing". He then stated that he looked through the crowd and saw a group of people around Nathan Wilmott leading him to the edge of the timber deck. He thought they were going to dunk him "for the previous regatta" and decided to make his way to the edge and have a look at it happen. He then moved to the position from which he entered the water and stood quite close to the "raised timber plank which was painted white." He had not seen Nathan thrown into the water. He said: "I must have missed that on my journey over to the edge." He thought he had heard the splash. When he leant out to look from his position at the edge, he saw Nathan in the water. He was then standing in the water "probably ankle, knee deep - not very deep into the water." Nathan was standing to his right. 39 After the evidence which I have set out previously in these reasons, relating to his entry into the water, hitting his head, blacking-out, and then looking up and seeing Nathan Wilmott looking down at him, he further testified that Nathan dragged him to the beach. He gave the following evidence:- "A. ..once I was on the beach, they just kept me there, just comforting me and I said I couldn't move or anything and just - at the edge - at the edge of the water and, yeah, I just waited. They said they called an ambulance and we just waited for it. Q. Did you realise at that stage what was the problem with you? A. I just wanted to get to the hospital. I knew I just couldn't - I couldn't move, and, yep. It was serious." 40 In cross-examination he reiterated that he had nothing to do with the dunking of Nathan Wilmott and that he had glimpsed him on the deck being marched towards the edge and had at that time "presumed that they were going to dunk him." He didn't see whether Nathan entered the water from the deck or from the beach. When he saw Nathan he was standing-up facing the crowd. He also gave the following evidence:- "Q. ….do you have any recollection of Nathan lying in the water as if he was pretending to drown? A. No. Q. Have you ever told anyone about that? A. About Nathan?

Q. Have you ever told anyone that Nathan was pretending to drown? A. No. Q. You never have? A. No." 41 The appellant testified that he did not remember speaking to the ambulance officers who attended him at the scene and conveyed him to Royal North Shore Hospital. He denied the suggestion that he dived into the water and said that he did not recollect using the word "dived" to an ambulance officer or anybody at the hospital. He did not remember how many ambulance officers attended at the scene. He said, "I wasn't very lucid at that time." He also gave the following evidence:- "Q. Can I suggest to you that you told at least one and perhaps two of the ambulance officers that you dived approximately 1.5 metres, landing face first in shallow water. Did you tell anyone that? A. I don't remember. Q. Did you tell any of the ambulance officers that you'd been drinking rum and Coke and beer? A. I didn't drink any beer. Q. So it may be you told the ambulance officers you'd been drinking rum and Coke? A. I don't remember saying that, no. Q. Do you have a recollection now of being taken or actually being admitted to Royal North Shore Hospital? A. When I first got there? Q. Yes? A. I don't remember. It's very hazy. Q. Do you remember whether anyone from the yachtsman's ball either went to hospital with you or was at the hospital after you were admitted? A. Do remember Ben Moon being in the ambulance with me." 42 Apart from Ben Moon, he could not remember the presence at the hospital of other sailing friends, although other evidence makes it plain that persons, to whom I shall make reference later, went to the hospital after the ambulance left, travelling independently. He did not remember being spoken to by nurses in the Trauma Centre nor of speaking to Dr Trevithick. He did not remember speaking to any doctor that night. He said: "When I got to the hospital I don't remember anything." 43 Other matters were put to the appellant, based upon hospital notes and Dr Trevithick's anticipated evidence, to which the appellant returned the same answer. It was not put to him, in cross-examination, that his absence of recollection was merely convenient and that he, in truth, did recall the matters being suggested to him. 44 In re-examination the appellant gave the following evidence:- "Q. Did you have any intention of entering that water that night? A. None at all. Q. Did you know how high the deck was from the water? A. I had not been to the yacht club before so I wasn't aware of the heights of anything. Q. Did you know how deep the water was above the sandy beach? A. Yeah, I had no idea of the surroundings. Q. Did you know what the nature of the bottom was? A. No. I'd never been to yacht club before. WHEELAHAN: Q. Did you know what the nature of the bottom was off that point of the timber deck? A. No. Q. Did you know if it was sand? A. No. Q. Or rock? A. I didn't know of anything. Q. Did you see Mr Wilmott at any time face down in the water? A. No. Q. What was the deepest into the water that you saw him at any stage? A. At ankle deep. Q. In what position was he when you saw him at that depth? A. He was standing in the water. Q. Did he convey to you the appearance of any difficulty in the water? A. No. Q. Were you affected by liquor at the time you entered the water? A. No. Q. Do you recall any conversation in the ambulance? A. No. I was - I'd just broken my neck. I had no sense."

45 The next witness to whom reference should be made is Vincent Michael James, who at the time of giving of his evidence, was a university student in Queensland, studying journalism and who was, in addition, engaged in work as a store manager. He had come to Sydney to sail in the regatta and attended the Yachtsman's Ball at the Middle Harbour Yacht Club. He sailed with Luke Molloy and knew the appellant. About twenty minutes after he arrived he saw Nathan Wilmott, whom he had just met, being escorted "towards the dock by a group of people". The demeanour of those forming the escort party was "joking around, mucking around." He did not see Nathan enter the water, but heard him landing in it. He saw him when he was in the water and was, at that time, the only person in the water. He was then standing with the water up to around his thigh or upper thigh. Nathan was then facing towards him, where he was standing with the people "up near the deck area." After seeing Nathan in the water, he saw Mr Fitzgibbon standing "right up against the tow-board", with other persons on either side of him and behind him, he being at the front of the group. He gave the following evidence:- "Q. What became of Mr Fitzgibbon? A. I saw Mr Fitzgibbon standing there looking in towards Nathan, and then I was talking back to my friends, turned around and I saw him overbalanced. HIS HONOUR: Q. You saw him overbalance? A. Yes sir, I saw him trying to regain balance. Like he was leaning over, going like this, trying to regain balance. WHEELAHAN: Q. When you indicated "going like this trying to regain balance", you were moving your arms in a fashion. Would you stand up and demonstrate what it was that you saw him do in that connection? A. Sure. It was - without falling over - it was like this, like leaning over, going as anybody does. Q. You demonstrate leaning forward, and rotating the arms in a circular fashion. You were-- BRIDGE: I am sorry to interrupt my friend. I didn't see any rotation of the arms in a circular fashion. HIS HONOUR: I am afraid he did. I will say what I saw. Don't worry, Mr James, these things have to be noted for the purposes of transcript. Nobody is taking a shot at you, please understand. The witness, Mr James, leant forward, extended his arms and moved them in a circular fashion. BRIDGE: I am sorry, I misunderstood. WHEELAHAN: Would your Honour indicate the direction in which that circular fashion occurred, as you saw it? HIS HONOUR: I thought he was moving anti-clockwise. WHEELAHAN: Yes. HIS HONOUR: His arms anti-clockwise, that is. WHEELAHAN: Q. Mr James, having seen Mr Fitzgibbon in that position behaving in that fashion, what next did you notice about him? A. Next I saw him leaning over, overbalancing, and then I was turned around talking to my friends and they were, they were looking at Daniel. So I looked with them, and I saw him falling towards the water. Q. Did you actually see him enter the water? A. Yes, by that time I had seen him enter the water. Q. How would you describe the method or plane in which he entered? A. I would say he entered, he was falling over head first, and he entered the water in a forwards motion. …………………. Q. The picture that you saw was one of him attempting to regain his balance? A. Yes, sir. Q. Did he achieve that outcome? A. No. sir. Q. When he entered the water, did you see any sign of Mr Wilmott conveying an impression of being in distress in the water? A. No, sir. Q. Did you ever see him lying face down? A. No, sir. Q. Or conveying an impression of drowning? A. No, sir. Q. Or in any way being injured? A. No."

46 Mr James was cross-examined as to the relative positions occupied by him and Mr Fitzgibbon at the time he made his observations, it being suggested that the interposition of other people could have had the effect of obscuring his vision of the appellant's "precise movements." To this and similar questions, Mr James replied that he could see Mr Fitzgibbon clearly and had a precise view of all of him. He said, "There were people there, but it did not obscure my vision." He further said that the appellant's arms were roughly at 90 to his body when he went forward into the water and that he didn't specifically recall seeing his arms move as he went forward. 47 In further cross-examination he agreed that when he saw Mr Fitzgibbon he was already falling in towards the water. His head went into the water first "because he was curled over." 48 The next witness to whom reference should be made was Sarah Roberts-Thompson. At the time of giving evidence she was a university student in Queensland, also working in a surf shop. She had been a keen sailor for a number of years and had been involved in the four-twenty class. She had been taking part in the regatta and attended the function at the Middle Harbour Yacht Club. She was inside the premises when she saw "a mingle of people" going towards the wharf, laughing around "as boys do". The "mingle" related to Nathan Wilmott. She followed the people outside. She did not see Nathan enter the water but saw him in the water. He was standing up with the water around his knees. She was asked whether she had seen him "clowning or acting as though he was injured or hurt" to which she returned the answer "No way. Not at all." He was not lying face down in the water nor conveying any impression of being in distress. She remembered there being a group of boys up on the wharf closer to seaward than she. She did not see Mr Fitzgibbon in the group at that time but saw him when he was falling into the water. She gave the following evidence:- "Q. Where was he in relation to the edge? A. I couldn't tell you in relation to the edge. I could tell you - I only saw him when he was falling into the water. Q. Well, what did you see then? A. I saw him falling into the water and as he got closer, right to the end - as he was falling I saw his arms go forward but he landed in the water before any of that, before he could finish anything. Q. Before his arms moved in the way that you have described how would you describe their position with regard to his body generally before he put them out as you've described it? A. Just, it would be a like a falling forward motion. Q. Did he appear to you to be diving? A. No. Not at all. Q. How did he enter the water? A. Well, as I said before, he was trying to get his hands out but he hit the water. It was basically headfirst." 49 When Nathan brought the appellant into the beach she immediately ran down as she had had some first aid training. Nathan had walked across to where the appellant was floating face down. They carefully dragged the appellant to a position where his head was out of the water but the rest of his body remained in it. Some centreboards were placed around his head to protect it from the incoming tide. The ambulance arrived at the scene and the appellant was put in a neck brace, conveyed to the jetty and thence into the ambulance. 50 In cross-examination she agreed that her brother, Adam, had gone to the hospital. She also gave her opinion that Nathan was wet all over and looked as though he had been under the water fully at some stage, because his head was wet. She was not cross-examined as to her stated opinion that the appellant did not seem to be diving when she saw him fall. 51 The next witness was her brother, Adam Roberts-Thompson. He was from Queensland and knew Mr Fitzgibbon, having sailed with him and against him for at least a couple of years. At the time of the accident he was a university student in Queensland. At the time of giving evidence he was employed by the Commonwealth Bank as a foreign exchange dealer, having obtained an economics/arts degree at the University of Queensland. He did not sail in the regatta but attended as a member of the national jury that dealt with protest hearings in relation to the races. He was present at the Yachtsman's Ball. He became aware of "goings on at the end of the pier involving Nathan Wilmott." He did not actually see him enter the water. When he saw him he was standing no more than waist deep and was the only person in the water. He was not giving any impression of being injured or in distress, nor was he lying in the water in a face down position. He testified that after seeing Nathan in the water he looked up towards the end where everyone was standing. He saw Daniel leave the wharf but didn't know why that was happening. In relation to his movement towards the water he said: "It wasn't his intention to be heading towards the water. It wasn't that he was purposely diving." He was "caught off balance, or fell or basically that it was not his intention to be heading towards the water." At the position from which he had fallen there was "a fairly tight bunch of people in respect of which the appellant "was closest to the edge or right on the edge." He entered the water "in an arched position." He went to the water's edge and observed that Mr Fitzgibbon was being carefully moved so that he was right on the water's edge, when no further attempt to move him was made. He requested an ambulance by use of his mobile phone. It was plain that the appellant was seriously injured. He said: "His comments suggested he was in some distress and the first thing he said was: "Get me to hospital."" 52 Mr Roberts-Thompson went to the hospital. His recollection was that Ben Moon, Simon Harding and Matthew Von Bibra were also present. He remembered one of the doctors talking to them. He gave the following evidence in cross-examination:- "Q. Was there a conversation there with the doctor about what had happened? A. No, I don't believe so. Q. You don't believe that at all? When you say you don't believe so, is that you can't remember one way or the other? A. That's correct, I can't recall, but I don't believe so. I remember us being terribly concerned for his welfare and wanting information, rather than-- Q. I understand that. You were more concerned with how Daniel was going, rather than what the cause of it in a legal or factual sense might have been? A. Correct. Q. Did anyone say anything to the doctor in your presence about Daniel diving into the water, and the emphasis which I place is on the use of the word diving? A. Not that I can remember, no. Q. Do you recall anyone saying to the doctor in your presence that one friend, that is one of you, and obviously Nathan, was thrown into the water at The Spit? Do you recall that being said? A. No, I don't recall that at all. Q. Do you recall anyone saying anything to the doctor about this person pretending to drown? A. No. Q. Did anyone say anything to the doctor about Daniel diving 1.5 metres into shallow water? A. No, I don't think so." 53 The next evidence to be considered is that of the witness, Luke Thomas Molloy. He was a friend of the appellant's, having known him for a number of years, through a common interest in sailing. He attended the function at the Middle Harbour Yacht Club. He was out on the deck area when Nathan was led out by a group. He saw him thrown into the water from the decking. He could not recall his entry into the water but he was "standing approximately waist deep. He was not lying in the water and gave no signs of injury or distress." He was "just floundering around in the water." He saw Mr Fitzgibbon standing in a group. He was behind the tow-board. He saw him "over-balancing with his arms raised beside him and he couldn't regain balance and fell into the water." He fell in head first. He was waving his arms around "as you do when you try to regain balance." 54 I have already referred to the cross-examination of this witness in relation to "floundering" and swimming. It was not put to him that what he observed in this regard was indicative, in any way, of Nathan being in some form of distress, actual or feigned. Nor was it suggested to him that these events occurred contemporaneously with the appellant's heading towards the water. Indeed, as I have already recorded, it was specifically put to him in cross-examination that Daniel Fitzgibbon entered the water after Nathan had stood up and floundered around, a proposition to which the witness agreed. 55 The next witness was Matthew John Von Bibra. He knew the appellant and had been involved for many years in the sport of sailing, having sailed in regattas both in Australia and overseas. He was a competitor in the regatta held in Sydney and attended the function at the Middle Harbour Yacht Club. He saw a group of people escorting Nathan outside. He did not see Nathan get into the water but saw him after he was in the water, when he was just standing up to around knee depth. He gave no appearance of being injured or disabled. He then noticed Mr Fitzgibbon. He said: "I noticed Daniel - caught my attention when he lost balance on the end of the boardwalk." He said that Mr Fitzgibbon was "right on the edge of the boardwalk so his feet would have been next to that timber board" (indicating the toe-board). In further elaboration of what he saw of the appellant's entry into the water he said that he had gone forward and put his arms out to try and stop himself, demonstrating the motion that he observed, and that he couldn't regain balance and fell into the water. He entered the water with his arms out but below shoulder height. It became obvious that the appellant was injured and he saw Nathan Wilmott move to help him. In doing so he had to move a little bit further out, a distance of a metre and a half to two metres. Whilst waiting for the ambulance he observed that Mr Fitzgibbon "was going in and out of consciousness." He said that they were trying to keep him awake. 56 Mr Von Bibra was cross-examined in relation to a statement that he had given to the representatives of the second defendant. I have already referred to this matter. The cross-examination occupied several pages of transcript and it is not convenient to set it out here. It led to the tender of an earlier statement made by Mr Von Bibra, to which he said he had had recourse before giving his evidence. This earlier statement was consistent with the evidence he gave. It was never put to Mr Von Bibra that he had seen the appellant diving into the water. For my part, I can see no basis for the rejection of Mr Von Bibra's evidence, based upon this cross-examination. Moreover, it does not appear from his Honour's judgment that he, in fact, rejected it. 57 The next witness was Robert Hugh Treharne. I have already noted that his Honour made no reference in his judgment to the evidence of this witness. In my view, his evidence is of considerable importance. At the time of the giving of his evidence Mr Treharne was a qualified accountant employed by a senior accounting firm, in a permanent full-time position. He was familiar with the Middle Harbour Yacht Club, where his father was a well-known member and yacht owner. He had participated in the regatta and attended the function at the club. He saw Nathan Wilmott, who was his cousin, "being carried by force towards the end of the wharf. He followed the crowd that was gathering to watch the occurrence. He went straight from the entrance to the club. He said: "I made a direct line to the edge of the wharf, to push my way through to the edge of the wharf." He did not see Nathan enter the water. When he saw him he was standing straight up, knee deep in the water. He appeared to be wet all over. He did not convey the impression of being in distress or being injured. He was definitely not lying face down in the water. When he took up the position from which he observed Nathan in the water, he became aware of the presence of Mr Fitzgibbon. He was "shoulder to shoulder" with him. He thought Mr Fitzgibbon was to his left but was not one hundred percent sure. He said that he stood in this position with Mr Fitzgibbon, observing Nathan in the water for "no more than ten seconds." He then gave the following evidence:- "Q. Whilst you were standing there with him in that position, did you notice something happen to him? A. Yes, I did. Q. What did you observe? A. I noticed the top half of Dan's body propel forward. Then I noticed his feet get tangled up on a thin white painted piece of timber around the edge of the wharf, and then with his arms waving to try and stop himself, and then proceeded forward towards the water, and then had his arms out in front of him before he hit the water. Q. How did he strike the water? A. Head first. Q. At any time before you saw him propelled forward, as you have described it, did you observe your cousin lying in the water? A. No. Q. Or conveying an impression of being in distress? A. Definitely not." 58 He also gave the following evidence:- "Q. Other than you being shoulder to shoulder with Mr Fitzgibbon at the point that you have indicated, and at the time that you have indicated, were you aware of the presence of other people around you? A. Yes. Q. Where were those other persons located apropos Mr Fitzgibbon? A. Congregated out at the end of the wharf and obviously behind us, because we were out on the edge of the wharf. Q. Did you see anyone push him? A. No. Q. Did you see a hand applied to him? A. No. Q. Or a shoulder, or any other propelling force? A. No. Q. Did he dive in? A. No."

59 Mr Treharne also indicated in his evidence that the point at which Mr Fitzgibbon entered the water was very close where Nathan was so that the water would have been about knee deep at that point. Mr Treharne also indicated that he had been required to attend an interview conducted by counsel for the Middle Harbour Yacht Club pursuant to a summons served upon him, the purpose of which was to see if he could identify "who pushed Mr Fitzgibbon into the water." The interview was recorded. He was not cross-examined in respect of anything said in that interview. 60 Mr Treharne was cross-examined as to his observation. He was not questioned about his evidence as to Mr Fitzgibbon's feet being tangled in the toe-board. He said that as soon as he saw Mr Fitzgibbon's upper body move forward, his immediate reaction was to try to regain his balance. Some questions were put to him suggestive of Mr Fitzgibbon's having adopted a posture consistent with diving. The evidence is not clear and, it is to be noted that it was not put directly to Mr Treharne that he had observed Mr Fitzgibbon making a dive. It is to be remembered that, in his evidence-in-chief, he had said, quite directly, that the appellant had not dived. 61 The final eye-witness called on behalf of the appellant was Benedict Russell Moon. At the time of his giving evidence he was a sales representative in the sailing industry, who had recently been relocated by his employer from Queensland to Western Australia. At the time of the Yachtsman's Ball in 1997 he had known Mr Fitzgibbon quite well, having sailed with him in national championships and in world championships. He had come to Sydney with Mr Fitzgibbon and Simon Hardigan, who was not available to give evidence. He was sailing with the appellant in the Sydney regatta. He attended the function at the Middle Harbour Yacht Club. He was involved in the episode with Nathan Wilmott. He said that Nathan was carried outside by a large group, apparently including himself, put down on the boardwalk and pushed into the water. He said that Nathan managed to sort of grab hold, with the result that he landed in the water only from the waist down. Before Nathan was put in the water Mr Moon took Nathan's shoes off because they would obviously be difficult to dry. After Nathan was pushed into the water Mr Moon said he saw him standing in the water. He did not indicate any distress and was not lying down in the water. He bent down to pick up Nathan's shoes so that he could return them to him. He heard a commotion behind him, he turned round and saw there was somebody else in the water. Within a matter of seconds he was able to see that the situation was serious. He saw Nathan wade out to a person, who turned out to be the appellant, grab hold of him and drag him into the shallow water. Mr Moon then went to the shoreline where Mr Fitzgibbon had been positioned. He was standing on the opposite side of him to Sarah Roberts-Thompson. Mr Moon heard the appellant say: "Who pushed me in?" 62 After the ambulance arrived and the appellant was placed in it, Mr Moon travelled with it to the hospital. Mr Fitzgibbon was in the back of the ambulance which was not sealed off from the driving cabin. Mr Moon gave the following evidence:- "Q. And you could hear him being treated? A. Yes, I could. Q. And his symptoms elicited, matters of that sort, by the officer attending him in the rear of the ambulance, is that so? A. Yes, I could. Q. At the hospital, did you furnish any particulars to anybody about Daniel's relatives and friends in Queensland? A. I recall the doctor coming and asking for some details and we put him in contact with - or I put him in contact with Dan's older brother, Greg. Q. That was Greg, that was the brother with whom he lived? A. Yes, that's correct. Q. And left it at that, did you? A. Yes, that's correct. Q. Other than provide him with the contact to reach Daniel's brother Gregory, that was the end of that aspect of the conversation that you had with-- A. That's correct. Q. --officers or representatives of the hospital. Did you provide anybody at the hospital with a history, that is a development in words of the circumstances which led to Daniel's injury? A. I don't recall." 63 In cross-examination Mr Moon gave the following further evidence:- "Q. Apart from the words, "Who pushed me in?" that you have told us about, you do not recall any other conversation with any other person on this entire evening, do you? A. I do recall the constant conversation between myself and Sarah and a lady on the beach that kept saying, "Roll him into recovery position", and we kept saying, "No, do not". I remember vividly Dan sort of going in and out of consciousness and mumbling, you know, saying those words on more than one occasion. That's probably why it sticks - sticks to mind but apart from that -- Q. Going in and out of consciousness? A. Yes. Q. What did you actually observe about Dan that led you to that conclusion? A. Well-- Q. What did you see? A. The fact that he was aware that we were there and then - then aware that we - not so much aware that we weren't but eyes closed - you know, not so much eyes closed - eyes closed basically. It is vague. It was five years ago." 64 Mr Moon agreed that he did not have any present recollection of the precise terms of any conversation that occurred in the ambulance. He remembered that two ambulance officers arrived at the scene. He did not speak to them about what might have occurred in relation to the appellant's injuries. He didn't recall anyone saying to either of the ambulance officers that Daniel had dived approximately 1.5 metres landing face first in shallow water. He remembered that Adam, Simon and Nathan turned up at the hospital whilst he was there and that the doctor to whom he had spoken had already given him the tragic news. He did not recall speaking to a nurse at the hospital nor telling anyone at the hospital that Daniel had dived into the water. He stated that he and the others were in shock after being told how Dan was. So "it was not a focus". In this regard he gave the following evidence:- "Q. Do you recall anyone, any of the four of you, saying to any member of staff at the hospital that one friend was thrown into the water at the Spit and pretended to drown so Daniel dived 1.5 metres into shallow water? A. No. I definitely don't recall. No." 65 In addition to this oral evidence, there was tendered, in Mr Fitzgibbon's case, a written statement of Nathan Wilmott. Mr Wilmott was not available to give oral evidence. The statement was dated 20 February 1998. Mr Wilmott stated that he was grabbed by Ben Moon and Simon Hardigan who had told him that "you are going swimming." He did not struggle. He gave his wallet to someone and requested that his shoes be taken off. He was marched to the edge of the timber deck and "was pushed into the water to about waist deep." 66 The statement continues as follows:- "13. There were heaps of people besides Ben and Simon and everyone was watching. I think Simon took my shoes off. 14. Whilst I was in the water I hadn't noticed Dan on the wharf. I commenced to walk out of the water and got up onto the wharf near the point (marked A photograph 1). Then I heard a splash looked towards the water and saw Dan face down in the water not moving. 15. I didn't hear anyone shouting out. I just walked back into deeper water. He was still face down I rolled him over. He was just lying in the water not moving. I rolled him over near the point either (marked B or C photograph 1). Only people who came to help me and Dan were at the water's edge in the sand. I remember one time I fell over completely into the water as I was pulling him towards the shore. 16. Then other people like Moon Dog - Sarah Roberts-Thompson - her skipper Lisa were helping to get Dan's head onto the sand. I remember Dan saying to 'Moon Dog' - 'call an Ambulance.' I realized that Dan was badly injured. We got Dan out of the water I got out of the water." 67 Later in the statement he refers to his getting back his wallet and shoes and to the ambulance coming and treating Dan on the beach for a fair while. Moon Dog is Ben Moon. According to him it was he who removed Nathan's shoes, not Simon Hardigan. This type of conflict of testimony is, of course, quite usual, in circumstances such as these. His evidence about being pushed in to waist deep accords with the evidence of Mr Moon, the only one of the witnesses who took part in the actual dunking operation. It was clearly a fairly minor affair. Nathan was not flung into the water. He was pushed over a very short drop into shallow water in a manner that allowed him to retain a more or less upright position and hold on to the deck. The evidence of other witnesses that he was wet from head to toe is explained in this statement, insofar as he fell over completely when rescuing the appellant. His immersion in the water at this stage may account for Mr Molloy's testimony to the effect that "Nathan went for a bit of a swim for a couple of metres." 68 Although Nathan Wilmott did not give oral evidence, there seems no reason to doubt the veracity and accuracy of his statement, especially as he was a major participant in the events of the evening. It is quite plain that he does not assert that he was in any danger nor that he was distressed or feigning symptoms of distress. The effect of his statement is that he was resigned to the fact that he was to undergo a ritual dunking. He did not resist. He ensured that his inconvenience was minimized by disposing of his wallet and shoes before being put in the water. He was able to avoid total immersion by hanging on to the deck and, the ritual having been completed, he made haste to get out of the shallow water in which he was standing and had, in fact, done so at the time when the appellant splashed into the water. His evidence would appear to negate any possibility that Mr Fitzgibbon deliberately dived into the water because he thought Nathan was at risk of drowning. No reference is made to this evidence in his Honour's reasons for judgment. 69 This completes my survey of the evidence given in Mr Fitzgibbon's case, relevant to the issue of whether or not he deliberately dived into the shallow water. I make the following comments in relation to it. It appears to have been given by witnesses who were honest and credible. No attack was made on their honesty in cross-examination. No suggestion was put to them that their evidence was fabricated in order to assist the appellant. Nor was it suggested, in cross-examination, that they were grossly mistaken in their observations of the events of the evening or in their recall of them. Unlike the questions to the appellant which I have set out, there were no questions in cross-examination to the eye-witnesses, to the effect that what they had observed was, throughout, a deliberate dive. My reading of the cross-examination satisfies me that the question most likely was not put because the tenour of the testimony of each witness was such that it was obvious that such a proposition would have been unequivocally denied. There is, after all, an obvious difference in appearance between an unintended fall and a deliberate dive; this is so, even where one who has accidentally fallen towards water is seen attempting to recover his situation by endeavouring to convert his uncontrolled fall into a dive, before entering the water. 70 Consequently, in my view, at the completion of the appellant's case there was a significant volume of apparently credible evidence pointing to the appellant's having lost his balance at the edge of the jetty, being unable to regain it and being unable to prevent a head first fall into the water. Indeed, his Honour's remarks, to which I have already made reference, would appear to indicate that his Honour was of the same view. Certainly his Honour gives no indication of any significant basis upon which the evidence might be rejected. The demeanour of the witnesses is not called in question. Nor is it suggested that there were any serious signs that their evidence was unreliable or inherently improbable. 71 As appears from the reasons for judgment, the effect of this evidence, in his Honour's view, was totally destroyed by the evidence of Dr Trevithick. This was so, even without the assistance to be obtained from the hospital and ambulance notes. However, these notes were tendered in evidence and should be considered along with the doctor's evidence, which must, itself, be considered in some detail. 72 I have already set out the portion of the report of the Ambulance officers referred to in his Honour's judgment. I note that, although it refers to the appellant as having "dived" approximately 1.5 metres, there is no reference to any reason for the dive. Also, in the absence of any evidence from the relevant officers, there is nothing to indicate the source of this information. Having regard to the position and condition of Mr Fitzgibbon at the scene, and when being transported in the ambulance (the notes show he was being given oxygen and intravenous medication and had been placed in a cervical collar and splint) I, for my part, would regard it as unlikely that the information came from him, even though he was described as "conscious and alert". Moreover, one would expect that the fact that he had landed "face first in shallow water" from a height of 1.5 metres would have been the significant aspect of the history to be passed on by this report, whether he deliberately dived or fell being of little or no importance. Also, the word "dive" is capable of describing a mode of entry into the water, which was not, at its outset, intentional. In the absence of evidence from the recording officer, the sense in which it was used is unclear. 73 Upon arrival at the hospital, Mr Fitzgibbon was handed over by the ambulance officers to the care of the nursing staff in the Trauma Admission Centre and of the emergency registrar, Dr Trevithick. No member of the nursing staff was called to give evidence but the nurses' notes, in a document headed Nursing Trauma Admission, were tendered as part of the hospital records. It contains the description of the accident, referred to by his Honour and already set out above. In the absence of any testimony from the nurse making the note, it is unclear what was the source of the information. As originally recorded, it referred to the appellant "jumping into water off Spit Bridge. The word "jumping" was crossed out and the word "diving" was substituted. There is no evidence as to the circumstances in which this alteration was made nor is there any explanation as to how the word "jumping" was thought to be an appropriate description of the occurrence. It is also significant, in my view, that despite this alteration being made, there was no alteration of the words "Spit Bridge". This description of the accident scene was clearly erroneous. There is no explanation as to how this mistake was made. The appellant is described as being "alert and orientated". It is inconceivable that he could have made such a mistake in any description of the accident being given by him. In my opinion, this, in itself, must cast doubt upon this note as being a record of anything said by the appellant. 74 His Honour, in his reasons for judgment, has made a finding, without discussion, that both these descriptions were statements made by the appellant to the relevant ambulance and hospital personnel. With respect, I am unable to agree. In my opinion, the evidence falls short of establishing that these entries recorded admissions made by the appellant to the effect that he deliberately dived into the water. 75 I am of the same view in relation to the notes made after the appellant passed from the care of Dr Trevithick. Dr Liston was not called, nor was Dr Sew Hoy. Consequently, there is no direct evidence that the material recorded in their notes was in fact supplied by the appellant rather than from the hospital documents which would have accompanied him. In the absence of any expert evidence on the topic, the question whether Mr Fitzgibbon dived or simply fell head first into the shallow water, striking his head on the bottom, would appear to be of no medical significance. The fact that Dr Sew Hoy, the orthopaedic registrar, who saw the appellant approximately one and a half hours after his admission to the hospital, recorded that the appellant had "no recollection of having fallen? dived into the water" cannot, in my view, be treated as merely "equivocal". It is consistent with the appellant's sworn testimony that he had no recollection of speaking to any doctors at the hospital. It also suggests that, at this very early stage, there as at least uncertainty as to whether he had dived or fallen. The note, clearly enough, indicates that, in a short space of time after being seen by Dr Trevithink, the appellant was unable to provide information as to the happening of the accident. 76 Again, the note made by Dr Liston, who saw him later in the following morning when he was admitted to the Intensive Care Unit is to the effect that the appellant had dived into shallow water "under the influence of ETOH". It is difficult to reconcile this with Dr Trevithink's testimony that Mr Fitzgibbon, although having a smell of alcohol about him, was not significantly affected. Also, the nursing trauma admission sheet made no reference to alcohol. 77 In summary, I have formed the view that, in the absence of oral testimony from the persons making the notes, the notes themselves can form no sound basis for an inference that the appellant made any statements amounting to admissions that he had deliberately dived into the water. Indeed, it appears from the reasons of the learned primary judge, that he did not place significant reliance upon them, in comparison with the very considerable reliance he placed upon the oral evidence and written note of Dr Trevithick. I turn, then, to this evidence. 78 Dr Trevithick was called by the first defendant. He was not called to provide expert medical testimony but to furnish evidence of admissions allegedly made by Mr Fitzgibbon, to the effect that he had deliberately dived into the water from the jetty. His Honour found him to be both a truthful witness and also that his testimony was reliable. His findings were, therefore, to an extent, credit based. The finding that his evidence was truthful would, obviously, have been assisted by observation of his demeanour in the giving of his evidence, in which area his Honour had the usual advantage of the trial judge. The reliability of evidence, however, can usually be tested by way of objective assessment, not dependent upon demeanour. In this area, the primary judge does not enjoy any particular advantage vis-à-vis the appellate Court. 79 The doctor commenced his evidence by indicating that he had graduated in medicine in 1994, had worked as an intern in that year and thereafter as a resident in 1995 and 1996 for the Northern Sydney Area Health. He had had working experience at various hospitals and by the night of the accident, 29 March 1997, was working as the emergency registrar in the Emergency Department at Royal North Shore Hospital. 80 The doctor stated that it was an "extremely unusual night" being "the busiest night - or the most involved night I have ever had in any Emergency Department that I have worked in". There were five major trauma cases, of which the appellant's was the third. He indicated, in evidence-in-chief, the nature of the first two cases, the purpose of this evidence being, apparently, to underline the strength of his recollection of the evening in question. In answer to a question whether he had "a specific recollection" of the events of that night, he responded "I certainly do." In answer to the question, in chief, whether he had "a specific recollection of attending to Daniel on that particular night", he returned the same answer. 81 He agreed that he had a conversation with Daniel. He said that he was specifically responsible for his care in the emergency department and had seen him in the resuscitation room. He had also escorted him to the CT scanner and back to the resuscitation room, where he occupied "bed No. 2". The doctor gave the following evidence:- "Q. Did you do anything to satisfy yourself about his ability to communicate in terms of him being alert or otherwise? A. The standard part of the initial examination is to ascertain whether or not a patient is - especially somebody in a trauma - is capable of giving a lucid and clear history. In that situation, I examine someone to see whether they have suffered an obvious head injury which might impair their memory, whether they are awake and alert, and that's the first part of my examination. Whether they are affected by alcohol or appear to be affected by any other substances as well. Q. Did you form any view when you first spoke to Daniel about his alertness? A. I remember him being completely alert and capable of speaking to me when I first saw him. Q. Did you form any view about alcohol? A. At the time, I believed he smelt of alcohol but it didn't appear to have affected him sufficiently to concern me in his management." 82 The doctor said that when Daniel gave him a history, he was alone in the resuscitation room. Although his friends were in the relatives' room adjacent to the resuscitation room, he hadn't spoken to them before he spoke to Daniel. In answer to the question "What did Daniel say in relation to matters of history?" he gave the following evidence:- "A. ..He - he said to me that he had been on a wharf at Middle Harbour Yacht Club and when one of his friends was pushed into the water during - I don't think I can actually use his exact words after this length of time, but some skylarking perhaps, or high jinks - it's a bit hard to describe what I am trying to say - some episodes of hilarity on the wharf and enjoyment following winning a sailing regatta - when one of his friends was pushed into the water, he dived into the water because he was - he thought his friend was at risk of drowning and he dived in to the water from a height of about 1.5 metres, hitting his face on the bottom of the - on the ground - when I say - on the bottom of the water because the water depth was quite shallow at the time and he was - then felt completely numb in his limbs and had to be rescued by onlookers." 83 The doctor, in answer to a question whether the appellant had told him anything about his special circumstances, said that he remembered that the appellant had come down from Brisbane where his family lived, that he was with a team, that it was a holiday and they had had a great success in the sailing regatta they had been involved in". He specifically questioned the appellant about his family because he had to talk to them. He says the appellant "described his parents living separately in Brisbane as well." They were separated, living apart. 84 He then had a conversation with the friends in the relatives room and subsequently telephoned both the mother and father of the appellant. After speaking to the friends he telephoned the appellant's mother at a phone number which had been provided to him, on request, by Daniel. He dialled that number and spoke to the appellant's mother, who was extremely distressed. He thought that he obtained the phone number of Daniel's father from Daniel, although it might have been from Daniel's mother. He spoke to Daniel's father. 85 He said that he had spoken to the ambulance officers but had not read the Ambulance report before Daniel gave him the history. 86 He was then taken, in chief, to the hospital records which were tendered. He identified the "nursing trauma admission" document and indicated that no part of the handwriting on that document was his. He was then taken to a two-page document in his handwriting, which he said was completed "after I completed my history and physical examination and the investigation including the CT scan." It related to events commencing at seventeen minutes past eleven on that night. It recorded the history he took, findings on examination and matters of family and medical history relating to Mr Fitzgibbon. He then identified the documents containing the notes of Dr Sew Hoy and Dr Liston and of a physiotherapist, the following day. 87 The history of the accident, appearing in Dr Trevithick's notes, has been set out above. The doctor had given his evidence of his conversation with Mr Fitzgibbon without reference to his note in the hospital records. Nor was he asked whether he had refreshed his recollection from it. His evidence purported to be his unaided recollection of a conversation occurring some five and one half years earlier. It is not surprising that he observed that "I don't think I can use his exact words after this length of time." 88 In any evaluation of Dr Trevithick's evidence, however, it would fly in the face of common sense to assume that he had not had recourse to his written notes of the evening of the accident prior to the giving of his evidence. Although this matter was not directly addressed in questions to him, it was brought out in cross-examination that the doctor, apart from those notes, had never set out in any document "what it was that you have recorded that evening." It appears that the doctor had not provided any statement of his intended evidence, given nearly six years after the event. 89 In my view, the reliability of Dr Trevithick's evidence as to the conversation must, in large measure, be dependent upon the reliability of the note that he made that night. On more than one occasion he stated, as would be obvious, that the note was made for the purpose of Mr Fitzgibbon's medical management. As he agreed, it was not made for the purpose of enabling him to give evidence nearly six years later. Indeed, the doctor explained the absence from the note of any reference to "highjinks on the wharf" on the basis that this was not a matter relevant to such management. 90 Having regard to the significance of the note, the doctor was questioned as to the events leading up to its creation. In relation to the taking of a history and the making of an examination of the appellant, after his arrival at the hospital he gave the following evidence:- "Q. Just clear up for us, if you would, the sequence of events dealing with the arrival of the plaintiff at the hospital, when you say you took a history. Correct? A. Yes. Q. What happened then? Was it then that you examined him? A. I did the two simultaneously. I took the initial history of the events which occurred and examined him at the same time to ensure that it was safe - to make sure that he wasn't going to suddenly die or anything like that. Q. Then you took him to the CT scan, is that so? A. Initially he had a chest and lateral cervical spine x-ray, a mobile x-ray. That was performed in the resuscitation room and he also had - I had to insert an intravenous cannula and undertake further treatment and following all that we took him to the CT scanner. Q. When he was brought back from there is it then that you recorded the history? A. Yes, That's correct. Q. How long elapsed between the taking of the history and the recording of it? A. An hour." 91 Later in relation to some questions concerning the reliability of the history that he had obtained, he volunteered the following statement:- "The history I secured was written after I had spoken to his four friends who witnessed the events as well."

This led to the following further questions and answers in cross-examination:- "Q. Let me get it right, if I may. You examined the patient and, during the course of the examination, took a history. Correct? A. Yes. Q. You then arranged for and accompanied him to the CT scanning unit? A. Yes. Q. You then came back and consulted with his four friends, correct? A. Yes. Q. And then you set out your record of his history? A. That's correct, yes. Q. When was it in relation to the taking of the history that you recorded it in the notes? How long? A. After I'd taken the history and spoken to the friends it was an hour and a half." 92 The doctor also said that he had spoken to the ambulance team and obtained from them "a hand over", being a history from the ambulance officers "such as they may have had it." The doctor then gave the following evidence:- "Q. You've told his Honour today that before you wrote the history that appears in your notes you confirmed it with his four friends who witnessed it, that is the incident, as well? A. Yes, that's correct. Q. Who said what about the incident from the four friends? A. I couldn't - because there were four of them and I could not recall which individual said what about the incident. Q. So some or all may have made a contribution to the history that you then had after discussing the matter with this group? A. That's correct. Yes. Q. I'm suggesting to you that the history that you have set out here in this document is a composite history obtained in part from the nurse's notes, in part from the ambulance officers, in part from the four friends who you say witnessed the incident as well and perhaps in part from the plaintiff. What do you say to that? A. That's not completely correct. The history I took was from Mr Fitzgibbon initially and then also from the ambulance officers' verbal hand over and from the four friends. I didn't take a history from the nurse's notes. Q. But those nurse's notes accompanied the plaintiff and became part of the documents available to you? A. They were written concurrently with my writing of the notes. Q. What? An hour and a half after his arrival? A. They weren't something I would have looked at when I was writing my notes. Q. Do you know whether you did? A. I don't think I did, no. That's very unlikely." 93 In relation to the doctor's looking at the nurse's notes, other portions of his cross-examination suggest that he may have been mistaken in the passage just set out. It will be recalled that the doctor had said that he had obtained the telephone number of the appellant's mother from Mr Fitzgibbon. In relation to this he gave the following evidence:- "Q. Who did you speak to next? A. After speaking to his four friends, the first person I telephoned was his mother. Q. And how did you know where to telephone her? A. Well, I had asked - I had asked Daniel for her phone number. Q. Had he given you a phone number? A. Yes, he had. Q. And when you dialled that number, you spoke to somebody? A. I spoke to his mother, yes." 94 In cross-examination it was drawn to his attention that there was no record in his notes "of telephone numbers at which anybody could be reached". The following evidence was then given:- "A. The telephone numbers are on the nursing trauma admission. Q. They're the numbers that you say you relied upon to telephone the plaintiff's mother, correct? A. Yes. Q. And the plaintiff's father? A. Yes. Q. Did you speak to the plaintiff's brother that night? A. I can't recall. I don't think so. Q. You wouldn't reject it as a possibility though, would you? A. No. Q. You see, if I suggested to you that 07 3348861 was not the telephone number of the plaintiff's mother at the time then you'd have no alternative number that you could offer as the one where you reach her, could you? A. That's not correct. No. There is an alternative source of numbers which is the front sheet for the admission-- BRIDGE: Your Honour-- HIS HONOUR: Let him finish his answer. WITNESS: I may have looked at the front sheet as well so it is possible I could have got the number from another source." 95 There followed some rather involved questions and answers relating to phone numbers which appeared handwritten on the front of the nurse's admission sheet. These included the number 07 38991727 which had the name of the appellant's brother Greg written beside it. In relation to this number the following questions and answers occurred in cross-examination:- "Q. You see, you've just told us that you may have reached his mother on 07 38991727, correct? A. I can only say what probably happened. I can say what I remember. What probably happened was that he told me a number, I wrote it down on a scrap of paper, walked over to the phone and rang it and then threw the scrap of paper away. Q. Or a friend perhaps put you in touch with Greg and you got the numbers from there? A. That's possible" 96 In relation to this evidence, it will be remembered that Mr Moon, who was present at the hospital said, in the passage already quoted, that he had put the doctor in contact with Dan's older brother Greg. This area of the evidence would seem to indicate two things: (a) Dr Trevithick, at or about the time of the making of his note, did see the nursing admission sheet, upon which the telephone numbers were noted and (b) despite his initial certainty that he had obtained the appellant's mother's phone number from the appellant himself, he eventually conceded the possibility that he had, consistently with Mr Moon's evidence, obtained the number by ringing the appellant's brother Greg in Queensland. There were, thus, two instances in which the doctor's initial certainty proved to be ill-founded. 97 The following evidence should also be referred to, in relation to the question of the reliability of Dr Trevithick's note taken on the night. It will be remembered that Mr Moon, who was present at the hospital, had been beside the appellant whilst he was lying supine partly on the beach and partly in the water and had observed that he was going in and out of consciousness. The following questions were asked of the doctor on this topic:- "Q. Had you obtained a history of this man going in and out of consciousness at the scene of his accident? A. Yes. Q. Where is that recorded? A. I don't think - it's not something I've recorded in my notes. Q. But it's something that you remember? A. I certainly do. Q. That would be of considerable significance, would it not, in the assessment of the extent of this man's injury? A. It certainly was, yes. Q. Any explanation why it's not recorded? A. Because at that point my notes are a summary of what's occurred and it's not - in a situation such as that night, patient care is the priority and so it's not surprising that I've left that out." 98 Later in his evidence, in passages which are too lengthy to set out, the topic was revisited and the doctor changed his explanation for the absence from his notes of any reference to the loss of consciousness. He gave the following evidence:- "Q. Why isn't it in the notes? A. Because when I wrote the notes I didn't believe it was an important factor. Q. You see, once he passed from your care he was going to be dealt with, presumably, by other members of the medical team at the Royal North Shore Hospital? A. That's correct. Q. Was it not important for them to know this important piece of history? A. Not when it's not important. If the loss of consciousness is transient and very brief, that's not significant. Given that I'd written the notes after I'd been observing him for a period of an hour, an hour and a half. Q. Was it very brief, the period of unconsciousness? A. As I recall it was. Q. What did he say in respect of the period for which he was unconscious? A. I can't recall the exact words. Q. You've got no idea, have you? Have you? A. I can't recall exactly what was said." 99 Apart from questions which, in my view, must necessarily arise from these passages concerning the reliability of the doctor's recollection of the events of the night including his conversation with the appellant, there is a broader question arising from the alleged content of the conversation itself. Mr Fitzgibbon's alleged statement that he had dived into the water because he thought his friend was at risk of drowning is simply out of step with all the other evidence in the case. This purpose for the dangerous dive is not referred to in any other of the notes in the hospital and ambulance records. It appears only in Dr Trevithick's note. The evidence, including Dr Trevithick's, cannot support a suggestion that Mr Fitzgibbon was so affected by alcohol as to form a mistaken view that Mr Wilmott was in danger of drowning or to have acted on some inebriated impulse . This being so, the whole of the evidence renders nonsensical the suggested attempt at rescue. Mr Wilmott was never in any danger, nor did he appear to be so. According to the sworn testimony of the appellant and the eye- witnesses, he was standing in shallow water, or even making his way out of it, at the time when the appellant entered the water. There was no rational basis upon which, in these circumstances, Mr Fitzgibbon could have made the statement recorded in the doctor's notes. Nor, having regard to the evidence, was there any basis for anyone else making such a suggestion. In this regard, no evidence was called by the respondents from any persons also present at the scene to support the proposition that the appellant was diving to attempt the rescue of Mr Wilmott. The absence of such evidence strongly suggests that none was available. 100 His Honour's finding, based on demeanour, that Dr Trevithick was truthful must be accepted, of course, as establishing that the doctor was giving a version in which he honestly believed. This does not mean, however, that his recollection was necessarily accurate. Its reliability falls to be tested by an examination of the passages in the evidence which I have cited and also against the matrix of facts otherwise established in the case. Obviously, questions necessarily arise as to whether the doctor was mistaken in his recollection or whether, having regard to the fact that his note was written one and a half hours after he had spoken to the appellant and after he had received information from other sources, he misunderstood, in all the circumstances of the pressures of the night, what was being said. 101 Moreover, even if it be accepted that the doctor's record and recollection accurately reflected what he was told, this would not necessarily dispose of the appellant's case. His statement to the doctor would operate only as an admission, to be considered as a piece of evidence in the whole of the case. It was made in circumstances where he had been previously going in and out of consciousness, and where his mind, in any event, would reasonably have been focused upon the terrible situation in which he found himself. What he said in those circumstances would necessarily have to be weighed against his sworn testimony and that of the eye witnesses. 102 I come, then, to consider what, in my opinion, should be the result of this appeal.

Conclusions 103 It is firstly put on behalf of the appellant that his Honour's decision should be set aside, on the basis that he has not, in the circumstances of this case, provided adequate reasons for it. This submission is based upon well established principles to which it is necessary to make only brief reference. 104 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 431), Mason P described the case under consideration as an unfortunate one in which he was "reluctantly driven to conclude that the appellant is entitled to a re-trial as to damages because the reasoning process exposed by the learned trial judge leaves the appellant with a justifiable sense of grievance." He continued that "there is a miscarriage where what is and is not disclosed involves a breach of the principle that justice must not only be done but must be seen to be done. The relevant legal principles are discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 especially at 280B-C and 281B-C and in Mifsud v Campbell (1991) 21 NSWLR 725." 105 I also refer to and rely upon the following passage from the judgment of Samuels JA in Mifsud (p728):- "It seems to me that this ground of appeal does not seek to establish that the learned judge's conclusion was necessarily wrong, or to seek to replace it by a finding that the plaintiff was entitled to judgment. It attacks the method by which the judge reached his conclusion. There is, I think, an analogy, which is of service in determining the present case, with those authorities which deal with the judicial obligation to give reasons. In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court *at 667) said that it was right to described the giving of reasons as "an incident of the judicial process" although a normal but not a universal one. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (at 278) makes some comments upon that holding, and goes on to say (at 281) that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. Similarly, in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case …. may promote a sense of grievance in the adversary and create a litigant who is not only "disappointed" but "disturbed" - to use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. It tends to deny both the fact and the appearance of justice having been done. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by the judge to do what the nature of the office requires." 106 I have, with respect, formed the opinion that the reasons given by his Honour, for the rejection of the body of evidence supporting the appellant's case that he lost balance and fell, rather than engaged in a deliberate dive, fail to comply with these principles. His Honour gave no reason for the rejection of this evidence other than that the evidence of Dr Trevithick, supported by "notations made by others who had the care of the appellant on that evening", overcame "the probative value of the evidence given by the appellant and those called in his case." This reasoning process, so exposed, could not, in my view, have failed to leave the appellant with a significant sense of grievance. He would be not only disappointed in the result but disturbed by it. 107 As already pointed out, his Honour's judgment provided no reasons for the rejection of the evidence of the individual witnesses, whose credibility had not been assailed and whose powers of observation and recollection had not been significantly questioned during the conduct of the case. Moreover, his Honour made no reference whatever to the compelling evidence of Mr Treharne and the statement of Mr Wilmott. Furthermore, although reference was made in the reasons to the evidence of Mr Moon, as to what the injured appellant said to him shortly after the accident, which evidence was not the subject of cross-examination, and which was directly contrary to the appellant's alleged admission at the hospital, his Honour made no findings in respect of it. Also, there was no discussion in his Honour's reasons of those matters appearing in the evidence, to which I have made reference above, which could cast doubt upon the reliability, as opposed to the truthfulness, of Dr Trevithick's evidence. These considerations compel me to the view that, unless this Court is in a position to decide this matter for itself, on the evidence in the appeal books, then a full re-trial must necessarily be ordered. 108 However, I have come to the conclusion that the appellant's primary submission, that he is entitled, in this appeal, to a finding that, through being jostled or pushed, he lost his balance and fell into the water, should be upheld. Although his Honour's decision has depended in part upon his view of the credibility of Dr Trevithick, I do not consider, in the circumstances of this case, that this should stand in the way of this Court reaching its own decision. One can accept that Dr Trevithick was a truthful witness (indeed, there is no suggestion to the contrary) but this does not mean, of course, that his evidence must be accepted as being, in all respects, reliable. I have already dealt with matters which tend to bring its reliability into question. Moreover, even if it be accepted in full, the important question still remains, what weight should be attributed to an admission against interest given by a person, in the condition and position of the appellant, at the time when the admission was made. As I have already indicated, it is no more than one piece of evidence to be weighed with all the other evidence in the case. 109 The powers and duties of an appellate Court involved in an appeal by way of re-hearing have been the subject of recent exposition in cases in the High Court. I think it necessary only to refer to the following passage from the judgment of the majority in the leading case of Fox v Percy (2003, 77ALJR 989 at 995), where their Honours, having reviewed the statutory powers of this Court on an appeal by re-hearing and discussed previous authority said:- "……the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory function s by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process." (References omitted). 110 For my part, I have come firmly to the conclusion that this is a case where, in the absence of the respondents having called any eye-witness to the accident, the body of such evidence called on behalf of the appellant could not and should not have been rejected on the basis of the evidence given by Dr Trevithick and the material in the notes. I am satisfied that a finding that the appellant deliberately dived into the water was, in all the circumstances to which I have made reference in these reasons, "glaringly improbable." It is appropriate, in my opinion, that the Court make the finding sought by the appellant. 111 In my view, the appellant's primary submission should be upheld. The appeal should be allowed, the case remitted for re-hearing, but on the basis that there be a finding that the appellant, through being jostled or pushed lost his balance and fell into the water. 112 Accordingly, I propose the following orders:-

2. The judgment in favour of the defendants be set aside.

3. That there be a new trial of the action conducted on the basis that it is established in favour of the appellant that, through being jostled or pushed, he lost his balance and fell from the jetty into the water.
4. That the respondents pay the appellant's costs of the appeal and his costs of the first trial. ***************************

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