The events of 18 November 2007
43The plaintiff's evidentiary statement, dated 28 March 2011, was admitted without objection and marked exhibit D. On the day of the accident the plaintiff had been working at the Coles supermarket at Tweed Mall. He finished his shift early and proceeded to the Chinderah Boat Ramp where he met the defendant and various other friends, including Bryan Woodford and Scott Nipperess, each of whom gave evidence. The plaintiff and his friends were all very young men at the relevant time. When the plaintiff arrived the defendant was navigating the boat to the ramp, where Mr Nipperess, and some others whom the plaintiff did not identify, alighted. The plaintiff got into the boat with Mr Woodford, as observer, and the defendant as driver. The trio entered the channel.
44The plaintiff put on a lifejacket and entered the water to wakeboard. Mr Hume had experience wakeboarding, having undertaken the activity since the age of sixteen, including on at least ten occasions in the two years leading up to the accident, each time on the Tweed River (exhibit D at [10], [13]). From the stretch of river adjacent to the Chinderah boat ramp, the plaintiff was towed upstream (in a southerly direction) toward Murwillumbah, during which time he "got up on the wakeboard a few times... [and] came off a couple of times". At this point, the defendant turned the boat around, and headed downstream, in a northerly direction. Soon after, the boat stopped and the plaintiff switched from the wakeboard to a wakeskate. The plaintiff had never wakeskated before (exhibit D at [18]).
45Heading downstream on the wakeskate, it was the plaintiff's evidence that he fell three times; on the first occasion "almost straight away", and on the second occasion, after "about 50 metres". And it was on the third occasion that he fell that he sustained his injuries. His account of the incident is in the following terms (exhibit D at [44]-[46]):
The last time that I got up on the board I didn't even have time to properly position my feet on the board before I came off. The board wasn't straight at the time I fell.
The boat hadn't yet hit full speed when the accident happened. I think it had moved about 15 metres from its start position when I came off the board.
The next thing that I remember is falling off the wake-skate. I fell forwards. I can't remember whether I let go of the rope as I fell, but I can remember getting a breath of air.
I don't recall going up in the air before I hit the water. My feet did leave the board and I went forward. Then I hit the water, head first.
46The plaintiff's memory in the moments following the fall is understandably poor. He said that he did not know how deep he went below the water, whether he hit the bottom, or how long he was lying in the water before help arrived (exhibit D at [49]-[50], [52]). He said his first memory after falling was trying unsuccessfully to roll over, before being turned over in the water by his friend, Mr Woodford (exhibit D at [52], [54]).
47He recalled that there were a number of people in the water assisting him, and that they were standing. He said the person who was near his head had water up to, about, his belly button (exhibit D [57]-[58]). He also gave evidence that when he was rolled over, he could see that he was "very close to the channel markers", but could not say whether he was "just inside the channel or just outside it" (exhibit D at [56]).
48Police interviewed the plaintiff on 26th March 2008. Exhibit E is a transcript of the recording. His account with respect to the distance over which he travelled on the wakeskate before his third fall differs from the account given in exhibit D. In the course of the police interview, Mr Hume suggested that prior to the fall causing his injuries he was up on the board for "at least 100 metres". Counsel for the defendant, Mr Parker SC, crossed examined the plaintiff about these varying accounts. Mr Hume's oral testimony was that while he could not recall the distance he had travelled, "it would be the longer distance rather than the shorter distance, because 15 metres would be barely enough to get you out of the water in wake skating" (35.35T). This must be correct.
49As I have said, Mr Woodford was the observer on the boat at the time of the accident. The observer's chair faces the skater. His role includes reporting any difficulty experienced by the skater to the driver (exhibit 7A at p7). Mr Woodford's evidence in chief is recorded in two statements, one of which was dated 17th April 2011 and marked exhibit 4A, while the other was undated and marked as exhibit 4B. As Mr Woodford did not have a boating licence (exhibit 4B at [3]-[4], [8]), but nothing turns on this.
50Mr Woodford said before the plaintiff's third fall, the defendant had throttled up to a speed of about fifteen to twenty knots. As I have said, this is cruising speed. After getting up onto the wakeboard for "about 5 seconds", the plaintiff suddenly fell forward (exhibit 4A at [2]). Mr Woodford then informed the defendant that the plaintiff had fallen off, at which point the defendant circled the boat back to pick him up. When the boat returned to the site of the fall, Mr Woodford realised the plaintiff was still lying face down in the water. He then entered the water to assist him. On Mr Woodford's account, the water depth was "above [his] head height", and he said he recalled having to push off the bottom to try to support the plaintiff (exhibit 4A at [5]). He also said that he then "moved over to the shallower water so that [he] could stand up on the mud flats or sandbars", and that this occurred "before any other persons turned up to assist" (exhibit 4A at [6]-[7]).
51Mr Woodford was cross-examined by Dr Morrison SC about the precise distance over which he had moved with the plaintiff before being able to stand. He agreed that he had not moved "any significant distance"(188.45-189.5T). He also agreed the accident occurred "very close to the sandbar", and that the sandbar was at least at waist depth a metre or two from where the plaintiff fell (190.35T). Mr Woodford however was of the belief that they were inside the channel marker when the accident happened (exhibit 4A at [9]; 189.15T). Whilst maintaining his belief that the accident happened "in the channel", he agreed that it happened "very close to the sandbar". He agreed with the cross-examiner that "nowhere [in the channel was] shallower than 3 metres". He seemed to accept that if that was so, the accident could not have occurred in the channel (190.5 - .20T).
52Before me he maintained that he entered the water by diving, suggesting deep water. But in exhibit 4A he had said he "jumped in", suggesting shallower water. In the end I understood him to accept that he had jumped, not dived (193.5T).
53I permitted some further examination in chief by reference to the aerial photograph attached to exhibit 4A. Mr. Woodford, for the purpose of his statement, marked in pen a rough straight line and a circle. The circle appears above a white dot, which is the depiction of the marker buoy in the photograph. It may be taken to indicate the area around the marker buoy. He said that the circle depicts "roughly where the accident happened", and the line "where the boat was travelling" (195.20 - .30T). In further cross-examination, he agreed that if the plaintiff fell off somewhere in the vicinity of the green channel buoy in accordance with his markings "it may well have been out of the channel" (196.15T).
54In a sketch prepared by Mr. Woodford dated 24th November 2007, admitted into evidence without objection as part of exhibit "X" (it bears the pagination "88"), Mr. Woodford depicted himself and the plaintiff in the water as other boats arrived - no other persons are shown as being in the water - at a point to the west of the channel marker. Moreover, in his statement to the police on 26th November 2007, also forming part of exhibit "X" and paginated 85-86, Mr. Woodford said at [12]:
We really didn't move once Marto fell, we just stayed there until the emergency services arrived. We could have drifted but we were pretty much in the same spot.
55The defendant, Mr Patterson, gave two written statements, dated 5th February 2008 and 30th June 2011. These were marked as exhibits 2 and 3 respectively. The defendant's account of the events leading up to the incident was in similar terms to that given by the plaintiff. The defendant said that he collected the plaintiff from the Chinderah boat ramp at approximately 2:00 pm on the day of the incident, and that he, the plaintiff and Mr Woodford had set out into the channel, with the plaintiff in tow riding a wakeboard. The plaintiff wakeboarded for a short time (approximately 20 minutes), falling occasionally, before switching to a wakeskate (exhibit 2 at [13]-[14]).
56With respect to the sequence of events surrounding the fall causing the plaintiff's injuries, the defendant's evidence-in-chief is similar to that given by Mr Woodford in chief. Mr Patterson said that the plaintiff was attempting a 'deep water start' while he (the defendant) throttled the boat up to a speed of fifteen to twenty knots, moving downstream (exhibit 2 at [15]-[16], exhibit 3 at [2]). As the defendant was driving the boat and was facing away from the plaintiff, he did not see the accident occur, but was alerted to the fall by Mr Woodford. The defendant turned the boat around and when the boat arrived by the plaintiff's side, the defendant saw Mr Hume "face down in the water, panicking" (exhibit 2 at [17]). Mr Woodford then entered the water. In exhibit 2 he said Mr Woodford "dove in" and in exhibit 3, he "jumped in". It was Mr Patterson's evidence that Mr Woodford "could not touch the bottom of the river" (exhibit 3 at [4]). After the plaintiff reported an inability to feel any part of his body, Mr Patterson called an ambulance using his mobile telephone. He stayed on the phone, in the boat, until the ambulance arrived (exhibit 2 at [19]). The defendant said that whilst he and Mr Woodford assisted the plaintiff, the defendant from the boat, they drifted over towards the sand bank and eventually Mr Woodford was able to stand up in the shallower water once they were out of the channel (exhibit 3 at [5]). At this time, after the ambulance had been called and the trio had drifted to the sand bar, a person in another boat arrived at the scene and also entered the water, helping Mr Woodford keep the plaintiff stable in the water (exhibit 2 at [20]; exhibit 3 at [6]).
57Mr Patterson gave evidence about the location of the boat at the time of the incident. In his second written statement he indicated that he was "clearly to the right of the channel marker" and "far from the edge of the channel" although he was "not... sure how far inside the channel marker" he was (exhibit 3, page 2). The defendant reiterated the substance of this evidence in cross-examination. He said he was "on the eastern side of the buoy" (160.45T) and "just to the left of the centre of the channel" (160.50T).
58Under cross-examination, Mr. Patterson initially remained adamant that the accident happened whilst he was navigating in the channel just to the left of its centre (160.45 - 161.5T). He didn't observe any shallow areas in the channel nor did he observe any "debris or wreckage or hard object" (155.25 - .30T), submerged or otherwise, I interpolate. He agreed that his first statement, exhibit 2, made no reference to the plaintiff drifting to shallower water after Mr. Woodford commenced to rescue him (157.5T). Nor does this statement contain any suggestion that Mr. Woodford swam Mr. Hume across to the sandbank (158.25T). He agreed that in a sketch prepared by him on 24th November 2007 he drew the boats involved in Mr. Hume's rescue "clustered around in the vicinity of the channel marker" (170.10T; exhibit P). He denied that the accident happened over the edge of the sandbank or that Mr. Woodford was able to stand when he entered the water to assist the plaintiff (177.15 - .25T).
59Mr. Patterson was cross-examined about his conversation on the telephone with the ambulance operator. He recalled some of the details but not all of them (179.10 - 181.35T). I am satisfied that the transcript, which was admitted as exhibit O, is accurate.
60He told the operator that the accident happened "just about five minutes ago". I would not take this literally as the call was logged close to 2:15pm. It indicates the passing of a short period of time only. At that time, the defendant reported that there were two people in the water supporting the plaintiff. From this I infer that the call took place after Mr. James Myers, another boater, whose evidence is referred to below, arrived on the scene. The defendant said, "There are two blokes standing and holding him up about waist deep". The defendant confirmed that the persons supporting the plaintiff were able to stand up. A little later he said, "We've got half a dozen people here supporting him". The transcript contradicts the statement that other rescuers only arrived after the call to the ambulance. I accept it as reliable as to its details.
61Early in the conversation, the defendant said to the operator:
I don't think we can get him across the river because we are on a sandbank away from the other side of the river ...
He reported "we are at least 100 metres across the river ... in the middle of the river". And a little later the following exchange occurred:
Operator: Just get somebody to support him but try not to move him as well. Is the water running anywhere or is he going anywhere?
[The Defendant]: No we are still sitting in the same spot. We are on the sandbar.
62The defendant was recalled to give further evidence on 25th March 2013. Again he was adamant that he did not go outside the channel. He denied the suggestion going outside the channel is "exactly what happened on [the] day" (341.10T).
63Notwithstanding his adamantine answers, at 175.35 - 50T he became unable to say where he was in relation to the channel marker at the time the accident occurred, although he rejected the suggestion that "it must have happened outside the channel marker" (176.20T).
64Mr James Myers gave a sworn statement dated 20th October 2011 with an annexed colour aerial map of the location of the incident marked with two coloured "X" symbols. Together these were marked exhibit M. A second evidentiary statement of 25 November 2007, taken by the police seven days after the incident occurred, was also tendered as exhibit N. James Myers (whom I will refer to as Mr J Myers so as to distinguish him from his son Adam, whom I will refer to below as Mr A Myers) was on board the first boat that came to assist the plaintiff and his friends at the scene. His son, Mr A Myers, and his son's friend Geoffrey Harrison were also in the boat. They were aged twelve and thirteen respectively.
65Mr J Myers says he saw the boat towing the plaintiff approaching the bend at Chinderah prior to the accident, and formed the impression "that the driver was cutting the bend too close" (exhibit M at [6]). I repeat that the river turns from the north east to north at Chinderah Bay. Mr J Myers did not see the plaintiff fall from his wakeskate because he was manoeuvring his vessel into the Chinderah boat ramp - and therefore facing in the opposite direction - when the fall occurred. He says that when he was alerted to the fall by his son, and noticed that the plaintiff was not moving in the water, he "immediately turned [his] boat around and accelerated" toward the scene, arriving there "no more than a minute" later (exhibit M at [6], [9], [12]).
66He says when he arrived at the scene of the fall he handed over control of the boat to his son and jumped in the water. His evidence is that the water was only "crotch to waist deep" on him, and "probably chest deep or lower" on Mr Woodford (125.50; 139.30T). He is 186cm tall (exhibit M at [13]). He also said (exhibit M at [17]):
The whole area in the vicinity of where we were was shallow. It never got above waist deep.
67When questioned about whether the plaintiff's position in the water had changed during the time from when he first saw the plaintiff in the water to when he jumped in to assist, Mr J Myers denied that the plaintiff had moved in the water or had been moved by anybody else (125.20-.35T).
68As I have said, Mr J Myers' statement includes a colour aerial map of the location of the accident. On this map are marked two "X" symbols, one in yellow indicating Mr J Myers' impression of the location of the boat in which he was travelling when he was alerted to the accident, and another in purple indicating the position on the river where Mr J Myers says the plaintiff fell, and at which Mr J Myers entered the water to help. The latter symbol places the location of the incident on the eastern edge of the sandbar. However under cross-examination Mr J Myers accepted that he could not identify the channel marker on the map and therefore could not say whether the position indicated as the site of the fall was inside or outside the marker (130.25T).
69Mr A Myers, as I have noted above, is the son of Mr J Myers, and was in the boat with his father and a friend, Mr Harrison (whose evidence I will refer to below) when the plaintiff fell from his wakeskate. Mr A Myers was born on 18th April 1995, was twelve years old at the time of the incident and seventeen years old when he gave evidence at trial. His evidentiary statement of 13th January 2012 was marked exhibit G while his police statement of 25th November 2007 was marked exhibit H.
70Mr A Myers noticed the boat towing the plaintiff approaching from approximately 60 metres away. In his statement he gave the following account (exhibit G at [5] - [6], [8] - [9])
I saw the skier do some turns in the wake [and] he then went outside the wake and came back in. When he went over the wake he got airborne and lost control, fell forward and hit the water at a fairly steep angle.
From where we were I could see the sandbar. The boat appeared to be on or near the edge of the sandbar.
When he jumped off the wake the front of his board caught [an] edge and he tipped forward quickly. He let go of the rope before he hit the water.
When he hit the water he went in head first with his hands in an upward position but only as far as the side of his head. He went into the water and suddenly stopped with his feet left sticking out of the water. He then floated to the surface and floated face down.
71Mr A Myers said that the defendant then turned the boat around and returned to the location of the fall. He says that the observer, Mr Woodford:
...rushed to the back of the boat and jumped onto the duckboard. He sat down on the duckboard and tried to grab the person in the water. He then pushed himself off the duckboard and slid into the water and grabbed the skier around the chest and flipped him over. (Exhibit G at [10]).
72In cross examination Mr A Myers agreed that he had mistakenly referred to the plaintiff as a "skier" and that it was more accurate to describe him as a "skater". However he rejected any suggestion he may have been mistaken about whether the plaintiff had gone outside of the boats wake and then come back in (76.10T). He gave evidence that both the plaintiff and the towboat were "on the plane" and that the plaintiff then got airborne, about two feet off the water, at which point he fell at an angle of about 35 to 40 degrees (74.40-76.5T). Mr A Myers disagreed with the suggestion that he may have been mistaken about the boat from which the plaintiff was being towed having a duckboard (81.20T). He said he could not remember seeing the navigation marker (77.45T; 82.10T).
73In his statement, Mr A Myers said the water was waist deep on the bodies of both Mr Woodford and Mr J Myers (exhibit G at [13]). When questioned about these matters, Mr A Myers confirmed that the water was "probably just above [Mr Woodford's] waist", and "waist deep" on his father (68.25-30T). Mr A Myers also rejected the suggestion that the plaintiff's position had moved more than one or two metres from the time he fell to the time his fathers boat arrived, or that Mr Woodford moved the plaintiff over to the sandbar (68.35-40).
74Mr Geoffrey Harrison, as I have said, was also on board Mr J Myers' boat. He was born on 24th February 1994. He saw a wake boarder coming towards him on the river. He says the rider fell from his board, went three feet in the air, hit the water and then lay face down floating in the water, not moving (exhibit J at [5]-[7]).
75In exhibit K, a statement made on 25th November 2007, he put the sequence of events differently (at paragraph [6]). The wakeboarder "getting air" preceded him falling. In cross-examination (at 108.10 - .20T) he sought to clarify his evidence by explaining that the wakeboarder crossed to the outside of the wake and "as he was coming back he got air". Then he fell. He said he entered the water at an angle of about 45 degrees (109.12T). In his statement he described the injured person as a wakeboarder. He knew the difference between a wakeboard and a wakeskate, but at the time of the accident he assumed that the plaintiff was on a wakeboard.
76Mr. Harrison said that when he got into the river to help with the rescue the water "was up to my belly button" (exhibit K at [9]). He is now aged eighteen and six feet and four inches tall. At age thirteen was shorter.
77In chief, Mr Harrison marked exhibit L with an "X" symbol to indicate where the accident happened. The symbol puts the location of the accident west of the marker, well over the sandbar, out from the boat ramp. This puts the scene of the accident in a place similar to that indicated by the mark made by him on exhibit "1", an out of court representation by him (112.5-20T), and in a similar location to Mr J Myers mark.
78Mr. Harrison was clearly confused about some details. In evidence, as I understood him, he indicated the water was deeper than he had suggested in his statement (95.20 - 91.20T). Moreover he had the plaintiff travelling upstream (south), not downstream (north), immediately before the accident (114.50 - 115.17T). This is clearly incorrect.
79It was suggested to him that he may have been mistaken as to the person he was observing, which proposition he rejected: (108.45T).
80Mr. A. Myers and Mr. Harrison were, as I have said, twelve and thirteen years old respectively at the time of the accident. Because of their youth and the effluxion of time since the accident, I am of the view they are clearly wrong in some respects. They are clearly wrong about the plaintiff being airborne immediately prior to his fall. Neither the plaintiff nor Mr. Woodford say that, and I think in this respect their account is more likely to be reliable. Obviously, they were directly involved in the action and the boys were some distance away. Moreover, the plaintiff was a novice at wakeskating and there is no suggestion he had progressed to tricks or stunts on his third attempt on his first day of trying a new sport. As I have said, Mr. Harrison clearly has the direction of travel wrong. These considerations, however, do not lead me to conclude I should reject the whole of the evidence of both of them.
81The Plaintiff's mother Mrs. Barbara Hume was called to give evidence, and, subject to some objections to part of paragraph 12, was admitted into evidence as exhibit F. She was not cross-examined. The significance of her evidence is that when stroking the plaintiff's head in hospital about a week after the accident she noticed river sand and grit in his hair and scalp. She described it as "not fine beach sand". As a mother her concern was about hygiene, as it occurred to her that her son's hair had not been washed at all in hospital. She raised this with one of the nurses who explained that they had been unable to shower the plaintiff until a surgical scar on his neck started to heal. I confess to having been initially sceptical about this evidence, not because I doubted Mrs. Hume's sincerity, but because I wondered about her ability to discern between river and beach sand. But her evidence fits in with the agreement between the biomechanical engineers as to the mechanism of injury and their evidence about a sandy river bottom "giving" and "capturing" the skull of a person colliding with it in the manner hypothesised by them in this case. As I say her testimony was not challenged.
82Mr. Scott Nipperess gave evidence in the defendant's case. He had been in the boat at the time the plaintiff joined it at the Chinderah Boat Ramp. Mr. Nipperess and two others disembarked to go for lunch. Mr. Nipperess said when he became aware of the accident he swam out to where the plaintiff was being supported and found that it was in water so deep that he could not touch the bottom (exhibit 5 at [14] - [17]). His evidence is that he assisted swimming the plaintiff over "to the sandbank so that we could at least stand up".
83The difficulty with this evidence is that he says (exhibit 5 at [11]) that he was made aware of the incident by the ambulance arriving at the boat ramp car park. By then, on any version, those assisting the plaintiff were standing in shallow water (199.40 - 200.15T). I am not able to accept his evidence.