40 Danny recounted that after the boat was moved, he dived off the bow of the boat into the water. The water seemed darker and as far as he could tell at the time, deeper. It was colder when he dived in. The front of the boat was again facing towards the heads. He thought he had dived in once at the second location. He said it was cold, you could tell it was deep and as he could not touch the bottom, it was hard to determine the depth. He did not remember Mickey yelling to the plaintiff something like "Robert come on dive in, [it's] safe enough to dive." He believed that a number of people had dived off the boat prior to the plaintiff's accident. He thought they may have been at the second point for twenty minutes before the accident but was unsure. He had not heard anyone say that it was too shallow or complain of touching the bottom.
41 Mickey Beaini whose evidentiary statement is exhibit 4, remembered receiving a call from someone who was going on the boat that day asking if he wanted to come. It would either have been Sam or Danny who asked him. One of them said that Buddy was going to purchase a boat which Buddy was taking out for a day. Mickey said that he could not remember a conversation with Danny or Sam whereby they invited him on the boat because he had a boat licence. He boarded the boat at the Cronulla Marina and recalled the plaintiff being collected at the Moorebank wharf. He remembered taking the wheel of the vessel a number of times but could not recall when. Mickey had owned a trailer boat but thought that his boat licence had expired at the time of the accident.
42 After mooring the boat at Brighton-Le-Sands, they had decided to go for a swim and everyone except Buddy went into the water. He recalled them diving off the front and front sides of the boat which appeared to be at least 20 metres from the shore. Before entering the water, it had looked to him deep enough to dive into. They had swum and dived around the boat for about 20 to 30 minutes. During that period, Mickey could not stand in the water and did not touch the sandy bottom until, on one occasion, his hands, which were outstretched in front of him, touched it. In his oral testimony, he said that it was a standard dive, that his hands hit the bottom and jolted his shoulders. It was possible, he said, that the depth of the water had altered but he did not know whether the boat had drifted backwards towards the beach. He agreed that when he had come out of the water he said, "I've hit the bottom and it's no longer safe to dive here." He agreed that he had used words to the effect, "If we are going to continue to dive we need to move to deeper water so we can dive safely." He agreed that the sole purpose for moving the vessel was to enable them to dive or jump safely. Mickey could not remember if he had driven the boat to the second spot but thought it was possible. He could not remember whether Danny was up the front of the boat but thought it was possible that they had got to a point where the person at the front said "that's far enough" or "that's deep enough here." The boat was moved to deeper water, he believed approximately 15 metres further out.
43 Prior to diving off the bow, Mickey said that he had looked at the water and observed that it had changed colour in that the water was darker. It seemed a deeper blue. He believed this to mean that it was deeper. He formed the view that it was safe to dive in, although he did not make any comment to that effect to anyone else on the boat. When he dived in, he found it was deeper water and did not touch the bottom. Prior to the plaintiff's accident, he saw a number of people dive off the boat but did not remember the plaintiff diving in.
44 Mickey did not remember how many times he had dived in. It was possibly three or four times. On each occasion that he had dived, he had looked at the water and did not consider that it was too shallow at any time prior to the plaintiff's accident. He recalled that Charlie, Danny and possibly Sam had dived in.
45 He did not see the plaintiff dive in at the time of his accident. He was in the water at the time and was swimming round to the back of the boat. Mickey heard the other guys talking about the plaintiff and how he was floating with his face down. After hearing this talk for some seconds, perhaps a minute, he swam back to the plaintiff who was floating face down, arms out, about 8 to 10 metres away from the front of the boat. When he touched the plaintiff, it seemed like he was touching jelly. He immediately took hold of him and yelled to Danny to call an ambulance.
46 Mickey could not remember yelling out to the plaintiff before his accident dive "come on, dive in, it's safe to dive" and did not recall instructing anybody to dive off the vessel.
Matters of credit
47 I propose to detail here my evaluation of the plaintiff as a witness. He impressed me as being a courageous person who was doing his best to recall what occurred before he was grievously injured. It was evident, however, that on some important matters of fact his recollection was either mistaken or the subject of favourable reconstruction and was unreliable. A salient matter was his oral testimony that he had been reassured by Mickey that it was safe to dive in, that he was not going to dive but was encouraged by others in the water telling him to "come on, jump in, dive in".
48 There are two evidentiary statements made by the plaintiff in evidence; exhibit C, which was made the week prior to the commencement of the trial, and exhibit 1 which is dated 27 March 2009. In neither statement does the plaintiff make reference to being reassured by Mickey or encouraged by others to dive, which I find to be remarkable given the significance of this evidence. Badui and Sam Laoulach did not give evidence that they heard words of assurance or encouragement. Danny Ibrahim and Mickey Beaini could not remember reassuring or encouraging the plaintiff to dive. Danny was standing at the back of the vessel when he spotted the plaintiff floating in the water and Mickey was swimming to the stern when the plaintiff dived. In any event, it makes little sense that the plaintiff required any encouragement to make a second dive as he had presumed that the depth of the water was the same as it was at the time of the first dive at the second anchor point.
49 Mr Cavanagh pointed to a number of inconsistencies between the two evidentiary statements. Particular reference was made to the plaintiff's assertion at ex 1 par 24 that Charlie moved the boat from the first anchor point to the second anchor point whereas at ex C par 31 it was Mickey who was said to have been the driver. Mr Cavanagh brought to my attention the difference between the plaintiff's statement at ex C par 28 that he had dived from the bow of the vessel on one occasion at the first point whereas that was expressly disavowed during his oral testimony. He had also recalled in oral testimony that he had not gone into the water from the bow but from the back of the vessel which is different to what is stated in ex C par 26.
50 Another inconsistency is the plaintiff's statement at ex 1 par 24 that he was unaware but had "since been advised that Mickey told Charlie that the water was too shallow at the point where we had moored further away from shore". This statement appears to ground particular (e) of the particulars of the defendants' negligence. It was, however, the plaintiff's evidence at ex C par 29 and in his oral testimony that he had heard Mickey's account of hurting his shoulder and the need to move the vessel to a safer depth. All of these matters detract from the reliability of the plaintiff's evidence.
51 I do not accept that the plaintiff was reassured or encouraged by Mickey or anybody else to dive in before he made the second dive and was injured. Before he made the second dive, the plaintiff noticed that the water was slightly lighter in colour than before the first dive but was still dark blue. The plaintiff presumed that it was the same spot from where he had safely made the first dive. The plaintiff exercised his own judgment in deciding that it was safe to dive from the vessel a second time.
52 Whilst there was a degree of imprecision and some inconsistency in the evidence of Badui and Sam Laoulach, and there were aspects of their evidence I did not accept, I found them overall to be honest and reliable witnesses. Although the evidence of the second and fourth defendants was marked by lack of memory on some matters of significance, my evaluation was that any failure of recollection was not deliberate. Although I did not accept all of their evidence, I assessed them for the most part to be credible witnesses.
53 Charbel Ibrahim, the third defendant, did not give evidence. Mr Cavanagh conceded that he had been available to do so. Mr Dooley asked the court to draw an inference that the third defendant would not have assisted "the single case of the defendants." He argued that the failure to call the third defendant did not assist the defendants' case in terms of proof of driving and controlling the vessel: (T 325 L 9-14). Mr Cavanagh said that the Jones v Dunkel inference could be drawn: T 308 L 25. He explained that as it was no longer the plaintiff's case that the third defendant drove the vessel, it was considered to be unnecessary to call him. What was said by Mr Cavanagh does not provide a satisfactory "explanation why the witness was not called or shows that the reason for not calling him was not that the party 'fears to do so'": Fabre v Arenales (1992) 27 NSWLR 437 at 445-6. There are disputed issues other than that of the identity of the drivers of the vessel. Accordingly, I draw the inference sought by the plaintiff that the third defendant's evidence would not have helped the defendants and I will take that into account in my consideration of any matters on which the third defendant could have spoken.