Moxham v Kaal & Ors

LOWER COURT District Court JURISDICTION : LOWER COURT DC 81/02 FILE NUMBER(S) : LOWER COURT Robison DCJ JUDICIAL OFFICER :

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40928/03 DC 81/02

SHELLER JA BEAZLEY JA HODGSON JA

The appellant, who was injured in a water skiing accident, brought proceedings against the speed boat driver (the respondent) claiming he had negligently driven the boat at high speed through a part of the course, causing her to fall off her skis.

After having considered all the evidence, the trial judge concluded that the appellant must have been mistaken in her version of the accident. The appellant appealed against the verdict entered for the respondent.

HELD per Beazley JA (Sheller and Hodgson JJA agreeing):

(i) It was open to the trial judge to find that the appellant must have been mistaken in her version of the accident even though he accepted her as a witness of credit.

(ii) The trial judge gave adequate reasons for rejecting the appellant's version of the accident.

(iii) The trial judge did not merely find that the appellant had failed to establish the respondent's negligence. He found that the respondent was not negligent after a consideration of the whole of the evidence: Duggan v Ampelite Fibreglass Pty Limited [2003] NSWCA 357 and Fitzgibbon v Waterways Authority [2003] NSWCA 294 distinguished.

(iv) Although there were discrepancies between the evidence of the respondent and that of his witness, his Honour found that their evidence was largely consistent.

(v) His Honour's failure to deal with all of the discrepancies in the evidence in the respondent's case did not undermine his ultimate finding that the respondent was not negligent.

(vi) The drawing of a Jones v Dunkel inference does not solve any insufficiency in the evidence of the opposing party.

(vii) The acceptance and rejection of evidence, in whole or in part, and the making of findings on the accepted evidence are the essential tasks of a trial judge. That task must be fulfilled even if the evidence for a party is not wholly consistent.

(viii) Expert evidence given by a person with experience as opposed to technical training is admissible under s.79 of the Evidence Act 1995 (NSW). (ix) The trial judge was correct in rejecting the "expert" evidence put forward by the appellant. A person put forward as an expert must have experience specifically relevant to the issue about which they give evidence.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40928/03 DC 81/02

SHELLER JA BEAZLEY JA HODGSON JA

1 SHELLER JA: I agree with Beazley JA. 2 BEAZLEY JA: The appellant (Ms. Moxham) was injured in a water skiing accident on 20 May 2000. She brought proceedings against Mr Kaal the driver of the boat claiming that he had negligently driven at high speed through a certain part of the course, causing her to fall off her skis and suffer serious injuries. Ms. Moxham was unsuccessful before the trial judge and appeals against the verdict entered in favour of Mr. Kaal.

Factual background 3 Certain of the facts in the case were uncontested. The accident occurred during the course of a competition which was being conducted on Budgewoi Lake. The appellant was being towed behind the boat "Argo" which was being driven by Mr. Kaal. This particular race was the fifth in a series in which Ms. Moxham had won the previous four. This meant she had won the series in any event and was thus eligible to compete in a competition to be conducted in America. 4 The competitive aspect of the race did not only involve the skiers. It was also a competition as between drivers and as between boats. Ms. Moxham had been towed by Mr. Kaal on Argo in her previous four races so that Mr. Kaal and the boat were also leading their respective parts of the competition. 5 Each boat has an observer. The role of the observer is to communicate between the driver and the skier. This is done by a series of standardised hand signals. On the Argo, the observer was seated beside and slightly to the front of the driver, obviously looking backwards. On the occasion of the accident Mr. Kaal's brother Joe was the observer. Ms. Moxham had originally commenced proceedings against Joe Kaal but these were discontinued. This is only relevant in that Joe thereby became a potential witness in the case. 6 There were seven boats and skiers in this particular race. The race was conducted over a circuit of five laps of a total length of approximately 5 kilometres. The circuit had an approximate north/south orientation with the skiers commencing in a northerly direction, travelling in an anti-clockwise direction. 7 The procedure for the race was governed by standard competition rules. The race is started in a designated area (the start area) with the skiers initially remaining on the boat. At the raising of a flag, the skiers are permitted to get into the water and the boats move along the course playing out the length of the ski rope, which is 230 metres. This takes about 30 seconds. The race is then officially started by the lowering of a green flag. This is the point at which the boats are permitted to commence their acceleration. When they do this, the bows of the boats lift up out of the water and the sterns drop more deeply into the water. This has an effect of creating a series of waves that roll towards the skiers. These waves are commonly referred to as "rollers". 8 It is a known phenomenon of the rollers that they remain in a wave formation for at least as long as it takes speed boats to complete a circuit of the course and they are thus frequently encountered when the boats and skiers round the second bend (which was referred to in the evidence as the "bottom bend") before travelling again. The rollers require careful negotiation by a skier as it is easy to become destabilised and fall off. If rollers are encountered, the boats moderate their speed, and do not accelerate again until being given a sign by the observer on the boat that the skier is through them. 9 In this case, the evidence of both Ms. Moxham and Mr. Kaal was that they had travelled along the northern part of the circuit, negotiated the northern bend and had travelled along the southern straight on the first lap. The Argo was coming second behind another boat, Stinger. The two boats maintained their respective positions as they rounded the bottom bend so as to turn back into the straight. 10 Thereafter, the evidence of Ms. Moxham and Mr. Kaal diverged markedly.

Appellant's version of accident 11 Ms. Moxham said that as they came around the last part of the bottom bend, Argo commenced to accelerate she observed some large rollers coming towards her. That is her last memory until some time after the accident had occurred. She said she thought she fell just as she was finishing the corner of the bottom bend. Ms. Moxham recalls only a very brief period of time between when she commenced to prepare herself to ski over the rollers to the point of her last memory. She estimated that time as between two but no more than five seconds. 12 She estimated that she was travelling at a speed in the high 80 miles per hour range and when she saw the rollers, she adjusted her position so as to get through them. She estimated the speed by reference to sensations she had when skiing at that speed on occasions when she had been towed by her father on his boat. 13 She knew that encountering rollers increased the risk of falling off and whether or not she might fall would depend upon how quickly she adjusted her method of skiing. Ms. Moxham said that if rollers are present, "we don't accelerate out of the corner".

Evidence of Mr. Brier 14 Ms. Moxham's father, Mr. Brier, was on the finish boat, which was located on the finish line towards the bottom section of the southern straight. He was taking a video of the race and did not see his daughter fall. He saw her in the water after her fall, "just at the end of the corner of the starting line". He described this as being level with the finish boat but on the other side of the course. From the diagrammatical evidence in the case, it would seem that this was some distance north of the start area. This was consistent with the evidence of the respondent and Mr Boylan. However, as the diagram was not scale little significance should be attached to this observation. 15 In dealing with the video evidence his Honour rejected the suggestion that the height of spray coming from the boat was evidence of speed. There was no expert evidence to support such a contention, his Honour having rejected Mr. Ritchie's evidence on this issue. In addition, Mr. Kaal said that the height of spray coming from the boat had nothing to do with speed. 16 The Court view about a minute and a half of the video. At various times the video depicted both Stinger and Argo. Spray could be seen coming from the boats. The video did not show the fall although the words "Lisa's come off" could be heard on the sound recording. To the extent that anything could be discerned from the video, the point at which this comment can be heard, appears to have the incident occurring further north than the place where Ms. Moxham located her fall.

17 Mr. Brier was recalled to give evidence in reply in relation to a conversation he had with Mr. Boylan on the day of and shortly after the accident. He said: "Q. [Mr. Boylan] came up to me and said that it was the worst accident he'd ever seen and that the waves were so big that Lee's knees hit her in the chest and I said, 'It must have been a bad accident because of the injuries that Lisa had sustained'."

The trial judge accepted Mr. Brier's account of this conversation and rejected Mr. Boylan's evidence on this matter.

Mr. Ritchie 18 Mr. Ritchie was called as an expert in Ms. Moxham's case. He had provided two reports, which purported to be expert reports. He also gave oral evidence. Mr. Ritchie had extensive experience as a water skier, including as a highly successful competitive skier. He had, on a "few occasions" been a driver and observer in ski races. He has owed and operated a water ski goods franchise for many years. Mr. Ritchie did not see the accident but was asked to express an expert opinion on a number of aspects of the accident. Certain of his opinions were based upon his viewing of the video. 19 The trial judge rejected much of the material in Mr. Ritchie's report. His Honour's rejection of this material is subject to a separate ground of appeal. To the extent that his evidence was admitted, he disputed the accuracy of portions of the appellant's evidence, and in particular where she said she had seen the rollers. He also gave some evidence as to how rollers were formed, which was consistent with the other evidence in the case. His comment that it was "difficult for me to say exactly what caused Lisa to fall" also survived the evidentiary challenge to his evidence. 20 The trial judge found Mr. Ritchie's evidence about the formation of rollers to be helpful. His Honour made particular reference to his evidence that it was unlikely Ms. Moxham saw the rollers as she rounded the bottom buoy, as she had maintained, although he said she would have anticipated rollers at the start line. That was not really in dispute. Apart from this, his evidence proceeds upon the assumption that the appellant fell in the vicinity of the first rollers which was the issue the trial judge was required to determine.

Respondent's version of accident 21 Mr. Kaal and his witness Mr. Boylan, said the accident occurred some short distance down the straight. Mr. Kaal said that as he came around the bottom bend and rounded the bottom buoy, he decelerated slightly and then accelerated slightly again. During this time the observer steadied him with a hand signal. There were rollers in the start area and he went over them. He had commenced accelerating slightly before he went over the rollers and the observer continued to steady him. He went over the rollers, eased off the throttle and waited for the observer to give him the "all clear basically that the [the appellant was] over the rollers". He was given the signal that Ms. Moxham was through the rollers and he accelerated again. The next thing he felt were some more bumps under the boat, although he had not seen anything unusual in the water. When he felt these bumps he eased off the throttle and waited for the observer to give him "the okay" to accelerate again. However the next signal was that Ms. Moxham had fallen off. 22 Mr. Kaal estimated his speed going around the bottom bend as between 70-75 mph. He said that when he decelerated so as to go through the bumps caused by the rollers he slowed his speed by about 5 mph. When he accelerated, having been given the signal by the observer that Ms. Moxham was through the rollers, he estimated that he increased his speed by "5, 10 miles an hour" and that it would have taken about 5 seconds to increase to that speed. It was at about this point that he felt the bumps. Mr. Kaal said that when he hit the second set of bumps he eased off the speed again by about 5-10 mph. 23 Mr. Kaal agreed that if instead of reducing speed to a moderate speed when the skier was going over rollers a driver accelerated, that would create a higher risk of the skier falling. He said that by moderating his speed as he did, he was acting as a competent race classed driver would be expected to act. He conceded that had he increased speed he would not be doing what a reasonable driver should do in the circumstances. 24 Mr. Boylan who was the observer on the race boat, Stinger, gave evidence in the defence case. He was the only witness who saw the fall. Mr. Boylan said that his boat went through the rollers at about 65-68 mph. He observed Argo go through the rollers. His boat pulled away a little bit at this time. He said that his skier skied out of the bend and into the straight and he observed Ms. Moxham skiing out of the bend and into the straight. Further up the straight he saw Ms. Moxham fall. He placed the fall about 175-200 metres further on after she had skied out of the rollers. He said he observed Ms. Moxham cartwheel before crashing into the water. 25 There was no way of reconciling the versions of the respective parties. On Ms. Moxham's version, there may have been a basis for a finding of negligence. On Mr. Kaal's version there was no basis for a finding of negligence against him.

Trial Judge's finding 26 The trial judge found that Ms. Moxham "was an honest and truthful witness in every respect". However, having considered all of the evidence, he concluded that she "must have been mistaken" as to how and where the accident occurred.

Alleged error 27 Ms. Moxham contended that in reaching this conclusion his Honour failed to resolve the conflict in the evidence in a way that would enable a dissatisfied person to understand why particular evidence was accepted or rejected. Senior counsel for Ms. Moxham relied upon the recent decisions of this Court in Duggan v. Ampelite Fibreglass Pty. Limited [2003] NSWCA 357 and Fitzgibbon v. Waterways Authority [2003] NSWCA 294 in support of this challenge to the trial judge's reasons. 28 In Duggan, the plaintiff had failed at first instance in an action for damages for injuries he received when he slipped on some fibreglass sheeting. The plaintiff and the defendant's witness differed as to where the accident occurred. There were other disputes in the evidence which were relevant to the question as to whether the plaintiff's version was more likely to be correct. The trial judge set out in summary form an account of the evidence given on behalf of each party and said that because there were "too many discrepancies" in the evidence of the parties, she was unable "to be satisfied on the balance of probabilities that the events occurred as [the plaintiff] described them. [And was] therefore unable to return a verdict for him". 29 On the appeal Giles JA at [8] criticised the trial judge's approach, stating that she had failed to resolve the factual disputes, as she was bound to do, so as to decide how the plaintiff fell. Ipp JA pointed out the necessity for her Honour to evaluate the evidence. He added at [13]: "… It was, with respect, a failure of her judicial function not to explain why she could not come to a conclusion, by some form of analysis of the evidence and in particular by taking note of the discrepancies within the evidence of [the defendant's witness]. …" 30 Of this passage Giles JA said at [11]: "It may be that her Honour meant that, having considered all of the evidence, she was unable to decide one way or the other how the plaintiff's accident occurred, so that the plaintiff had not discharged his burden of proof. It would be a rare case in which a judge would dispose of a matter in that way, but if that is what her Honour did her reason for it was that there were discrepancies between the evidence of the plaintiff and the evidence of [the defendant's witnesses] …" 31 In Fitzgibbon v. Waterways Authority there was likewise a conflict of evidence as to how the accident occurred. The Court of Appeal ordered a new trial on a limited basis because of the trial judge's failure to give adequate reasons as to why he had rejected the plaintiff's case. In particular, the Court was of the opinion that the trial judge had 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 challenged in the course of the conduct of the case. 32 Duggan v. Ampelite Fibreglass Pty. Limited and Fitzgibbon v. Waterways Authority are examples of cases where an appellate court has held that a trial judge had failed to give adequate reasons for decision where there were conflicting versions of the accident. In this case senior counsel for Ms. Moxham submitted that his Honour had failed to explain why he rejected the plaintiff's case. This was obvious, it was said, from the following passages containing his Honour's conclusions:: "… the evidence of the plaintiff is scant to the extent that she is really unable to tell this Court exactly what happened to her immediately preceding her injury … . If there had not been evidence from Mr. Boylan and the defendant I may well have found that the plaintiff sustained the injury in the circumstances that she described but if I were to accept the plaintiff's evidence and make a finding along the lines that the accident occurred in the way she described in this case that would fly directly in the face of the evidence not only of the defendant but also Mr. Boylan. If I were to accept the plaintiff's evidence along those lines, that would be entirely irresponsible as far as this Court is concerned and that should not be permitted. … It is not necessary for this Court to determine in fact where the plaintiff fell. The onus, as I said, remains with the plaintiff. If the plaintiff had satisfied me where she fell, so be it, but the combined effect of the evidence of the defendant and Mr. Boylan leads me to conclude that there is a significant problem with the plaintiff's evidence when it comes to the question of the plaintiff's recollection and its reliability. I stress yet again the plaintiff was a truthful witness. She did her best to tell this Court what happened. It seems, when I look at all of this evidence, that the plaintiff must have been mistaken. …" 33 It was said these reasons were inadequate to explain why Ms. Moxham's evidence was found to be unreliable. It is thus necessary to consider in more detail the approach taken by his Honour to the evaluation of the conflicting accounts of the evidence given by Ms. Moxham and her witnesses on the one hand and Mr. Kaal and Mr. Boylan on the other.

Assessment of the Respondent's Evidence 34 The trial judge extensively reviewed the evidence of the Mr. Kaal and his witness Mr Doylan, finding the credit of both to be wanting in part. However, as it had not been suggested that either the respondent or Mr. Boylan was lying he considered their evidence should be assessed with the other evidence in the case. In undertaking that task his Honour drew a "strong" Jones v. Dunkel inference against the respondent due to the failure to call the respondent's brother Joe, the observer on Argo. However, as his Honour also observed, the drawing of a Jones v. Dunkel inference does not solve any insufficiency in the evidence of the opposing party. 35 His Honour then dealt with Mr. Kaal's cross-examination. He accepted Mr. Kaal's denial that he was not going "flat out", because, as his Honour observed, Mr. Kaal was not under any pressure to win this race and at all times was behind the lead boat. Nor was he critical of Mr Kaal's inability to be precise about speeds or distances given that there was no speedometer on the boat and no means of measuring any distance or location that was said to be relevant to determining where Ms Moxham fell. 36 His Honour next considered the major challenge to Mr Kaal's version. This arose out of an alleged inconsistency between the formal report of the accident and Mr. Kaal's version of the accident given in Court. The report of the accident was Exhibit E in the proceedings. It was filled out by the Honorary Secretary of the Club (the Secretary) from information provided by Mr. Kaal and his brother Joe on the day of the accident. Against the entry "CAUSE OF FALL" there appeared the words "rolling waves". Then, under "DETAILS OF ACCIDENT" was the entry "Rounded buoy on bottom turn - came upon rolling waves up straight". 37 Attached to the report was a diagram that had a drawing of the bottom bend, a series of squiggles, presumably representing waves and notations as to the location of the two boats, Stinger and Argo, and Ms. Moxham. The position of Ms. Moxham on the diagram is at the commencement of the rollers. It is not known who drew the diagram. Ms Moxham contended that the accident report supported her version of the accident. 38 Mr. Kaal was cross-examined extensively on the report. He said the writing was not his nor did he draw the diagram but agreed that the "DETAILS OF ACCIDENT" was the information he and his brother provided to the Secretary on the day of the accident. When it was pointed out to him that the report only referred to one set of rollers, he said: "I'm just thinking, I'm not sure. I'm not sure what I would've told Mrs. Osborne."

He was then cross-examined about the diagram and conceded that it didn't show two sets of rollers separated by a time interval of about 8 seconds, as he had said in his evidence. 39 His Honour concluded that very little could be drawn from the accident report in support of either of the plaintiff's case or indeed the defendant's. This conclusion was open to him. The accident report did not provide evidence that should have led his Honour to reject Mr. Kaal's evidence. There is nothing inaccurate on Mr. Kaal's case, to state as was recorded in the accident report that he "came upon rolling waves up the straight" (emphasis added). Indeed that was consistent with his case. Nor is there any basis upon which it can be said the report required his Honour to accept Ms. Moxham's evidence. Although the depiction of Ms. Moxham at the commencement of the rollers was consistent with her case, the diagram was not to scale and other parts of the report were, as I have said, consistent with Mr. Kaal's version. 40 There was other extensive cross-examination in which counsel for Ms. Moxham attempted to gain concessions from Mr Kaal that he must have been travelling at high speed and that Ms Moxham's injuries were of a type that were caused by high speed. No concession was forthcoming. 41 His Honour was then left with, as he described it "the sworn testimony of the [appellant] and the others who gave evidence before me during the hearing". He commented again that no allegation had been made that the respondent or Mr. Boylan "were deliberately setting out to deceive this Court". As his Honour said, the determination of the case "… depends upon whether I accept the evidence of the appellant as being reliable and accurate". That evidence as he noted, was not supported by any other evidence. 42 His Honour then moved on to consider the evidence of Mr. Boylan.

Assessment of Mr. Boylan's evidence 43 Mr. Boylan gave a more specific location of the fall than the other witnesses - "175-200 metres from where she came out of the rollers". His Honour observed that this evidence "flies directly in the face of the evidence of the plaintiff". 44 This was a partially successful challenge to Mr Boylan's credit and impartiality. However, as his Honour observed: "… that of itself does not mean that a court should reject clear and unequivocal evidence as to the observations enunciated by a person during the course of sworn testimony. He did not resile from his evidence as to what he saw."

His Honour said that Mr. Boylan's evidence had to be considered with all the other evidence in the case and noted that it was " largely consistent " with the evidence of Mr. Kaal. 45 A particular challenge was made in the grounds of appeal to his Honour's failure to deal with the absence in Mr. Boylan's evidence of any reference to a second set of rollers. This was said to be a major discrepancy between his evidence and Mr Kaal's and lent weight to the likely accuracy of the accident report and, it following, Ms. Moxham's version. In my opinion this omission in the trial judge's reasons does not undermine his ultimate finding. He found that the evidence of Mr. Kaal and Mr. Boylan was largely consistent. In particular, it was consistent in two critical respects: first, in that both Argo and more significantly, Ms. Moxham, had gone through the rollers which had built up in the start area: and secondly, Ms. Moxham came off the skis down the straight. 46 Contrary to Ms Moxham's contention, a review of his Honour's reasons demonstrates that his Honour thoroughly and faithfully recounted the evidence; considered the aspects in which any particular witness was challenged; made findings as to credit; considered the reliability of the evidence; made findings as to what evidence he accepted; and came to a conclusion. His Honour did not merely resort to finding that Ms. Moxham had failed to establish that Mr. Kaal was negligent because there were discrepancies in the evidence as was the case in Dugganand Fitzgibbon. His Honour gave reasons as to why, after a consideration of the whole of the evidence, he ultimately accepted Mr. Kaal's and Mr. Boylan's evidence over that of Ms. Moxham. 47 The acceptance and rejection of evidence, in whole or in part, and making findings on the accepted evidence are the essential tasks of a trial judge. That task must be fulfilled even if the evidence for one party is not wholly consistent. In this case, his Honour fully complied with his judicial obligation to consider and analyse the evidence and to give reasons as to why he rejected Ms Moylan's version and accepted Mr Kaal's case despite some deficiencies in it. It follows that this challenge to his Honour's judgment fails.

Rejection of "expert" evidence 48 As I have already mentioned portions of the reports prepared by Mr. Ritchie were rejected by the trial judge. Those portions related to:

(i) the speed at which he assessed Argo was travelling;

(ii) an " assumption " that speed was the cause of the accident;

(iii) an opinion as to how the accident could have been avoided, namely, by reducing speed;

(iv) comments on the ability of the observer to signal to reduce speed.

The matters referred to in (ii), (iii) and (iv) were all dependent upon the correctness of (i). The question of how the accident could have been avoided (item (iii)) was common ground between the parties in the sense that the respondent agreed that good driving requires a boat to slow down whilst the skier negotiates any rollers. 49 The following aspects of Mr. Ritchie's second report were also rejected:

(i) an interpretation of the location of roller activity on the diagram attached to the Accident Report;

(ii) an opinion as to the need for the exercise of extreme caution when approaching or travelling over rollers;

(iii) an opinion that the respondent should have been able to travel through the rollers allowing Ms. Moxham to maintain her position; and

(iv) a statement that: "the skier fell while travelling through the rollers so this in itself indicated that the skier was being towed at an excessive speed above their ability." [Blue 84]

The trial judge rejected the evidence to which I have referred that Mr. Ritchie " was not an expert in driving boats " and despite his experience as a water skier, was not " equipped to provide expert evidence " in respect of the above matters " insofar as the speed of the boat is concerned ". His Honour added that there was insufficient information provided to Mr. Ritchie, particularly, in the form of the video, to enable him to assess the speed of the boat. He had no technical training or experience in assessing speed. Accordingly, Mr. Ritchie was put forward, not as a person with technical expertise, but as a person with experience. Such evidence is admissible pursuant to s.79 of the Evidence Act 1995 (NSW) provided the opinion is based on specialised knowledge and the specialised knowledge is based on the person's experience. 50 In this case, the specialised knowledge in question was knowledge as to the speed of speed boats. The experience in question was long experience as a competitive water skier and wholesale and retail experience in relation to water ski equipment. In my opinion, the trial judge was correct in determining that such experience did not qualify Mr. Ritchie to give evidence of the speed of the boat. In particular, it did not qualify him to give evidence of the speed from the spray from the side of the boat. The other matters in respect of which Mr. Ritchie expressed an opinion were assumptions dependent upon the speed of the boat. 51 In my opinion his Honour was correct in rejecting his evidence on these matters. 52 It follows that on the conclusions I have reached, the appeal should be dismissed with costs. 53 HODGSON JA: I agree with Beazley JA. **********

Last Modified: 04/18/2008 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.