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."