JUDGMENT
1 HIS HONOUR: James Alexander Smith is the plaintiff in proceedings against the first defendant, Benjamin Richard Perese, the second defendant, Richard Perese, and the third defendant, Perese Abalone Diving Pty Limited, as Trustee of the Perese Family Trust. The first defendant has joined Denis Guy Renton as a cross defendant, and the plaintiff's claim and the first defendant's cross claim have been heard together.
2 It is necessary at the outset to outline the nature of the plaintiff's claim.
3 The plaintiff was very seriously injured on 12 October 2001 when he was engaged in spearfishing. Spearfishing was a recreational activity enjoyed by the plaintiff and, on the day of the accident, he was spearfishing off Brush Island, an island near Kioloa on the south coast.
4 The plaintiff set out from Kioloa at about 8.30 am with the cross defendant, a regular fishing partner. Each of the two men had a son and the sons were good friends who joined their fathers on this particular outing. The party set out from Kioloa in a boat provided by the cross defendant. Neither son was engaged in the fishing activity but both the plaintiff and the cross defendant entered the water looking for lobster at a point which was known to them on the south-eastern tip of the island. Having been there for approximately five minutes, both fishermen returned to the boat and the boat was moved to a second area where again the plaintiff and the cross defendant entered the water. Whilst both men were in the water, the motor launch being driven by the first defendant proceeded over the plaintiff and he sustained injuries resulting in a below knee amputation.
5 The facts above outlined are not in dispute. However, matters of contention include wind and visibility conditions and the precise location at which the accident occurred. Whether or not the first defendant was negligent in the circumstances of the accident was very much in issue.
6 There is near the south-eastern corner of Brush Island a rocky outcrop and to the south of that outcrop there is a bombora. A channel runs between these two positions and I find that the first defendant took the boat he was driving through that channel. The plaintiff was struck when he was somewhere to the east of that channel. The earlier position at which he had entered the water was north-east of that channel.
7 It becomes necessary to review the evidence given by the plaintiff, his son, the cross defendant, the first defendant and Timothy Leather, a deckhand who was accompanying the first defendant.
8 According to the plaintiff, the place where the accident happened was a familiar fishing location for the cross defendant and himself. Indeed, the plaintiff's evidence was that it was generally a popular spot for fishing and diving, and this is not a matter of contention. I accept it to be the case.
9 The plaintiff described the morning as ideal. He said it was quite bright and the diving area was "flat and glassy". He said that, if anything, there was a very light wind from the north (T 32).
10 The plaintiff said that he entered the water the second time thirty to thirty-five metres from the shore and at a point twenty metres east of the bombora (T 40). He said that the cross defendant was the first to enter the water and he said he asked the boys who remained with the boat to take him in "a little bit closer". He said that by the time he entered the water, a westerly wind was starting. He described the wind as being from the north-west, and he said that here he was was in the lee of the wind (T 42). He described the sea as still being quite calm, and he said that there were no whitecaps. He said he had been in the water for probably ten minutes when the accident happened; he had dived once, and was proceeding on the surface "just finning and using his flippers" (T 43).
11 The plaintiff described the equipment he was wearing. It consisted of a snorkel and mask and a wetsuit. The snorkel was luminescent green. His flippers were black. He was using a Ronstan float attached to his speargun. I accept the evidence which the plaintiff gave that his float was an orange one and was exactly the same as the float which was tendered in evidence as Exhibit A. The tether, attached to the float at one end and to the speargun at the other end, was ten metres long. The plaintiff said that when the accident happened the cross defendant was east of him and closer into shore. He said the distance separating the two men was ten to fifteen metres (T 46). When he last looked up, he saw the boat he had left, and it was drifting away. He estimated it to be 150 feet away. He said that was a few minutes before the accident.
12 Mathew Smith gave evidence of accompanying his father out in the boat on 12 October 2001. He said that they left Kioloa ramp about 8.30 am and were out at the island within fifteen minutes. He gave evidence of the first drop. He said the weather was calm at that time but that the wind was gradually picking up. He described the location of the second drop as being forty metres off the island and, like his father, Mathew Smith said it was the cross defendant who left the boat first. He said there was no real change in the weather. The wind was coming from the north-west and he said there was very little swell. The day was clear and sunny (T 152). He said that he and his friend, Colin Renton, drifted in the boat to the south-east after their parents left it. He observed the other vessel approaching on the plane. He said that when the other vessel was seen by him the boat he was in was fifty or sixty metres away from his father and from the cross defendant. He said both men had their floats with them in the water. He identified the float, Exhibit P, as being like the float the cross defendant was using, except that the cross defendant's float was a yellow one. The witness said that when he first saw the vessel approaching on the plane, it was heading east-east-north-east. He heard yelling and screaming and he saw that vessel do "a 180 spin back around" (T 154). It is to be inferred that this was after the collision.
13 The cross defendant gave evidence of accompanying the plaintiff, and that his son and the plaintiff's son were with them. The boat they went out to the island in belonged to the cross defendant's stepfather. The cross defendant described the activity at the first spot, where he and the plaintiff went to a particular hole looking for crayfish. They then proceeded in the boat to the second spot and he said that the boat stopped at the south side of the rocky outcrop. He said he and the plaintiff entered the water sixty to seventy metres from shore. He said he started to swim to the shore to a position within twenty metres of the island. He said he checked the plaintiff's position two or three times after leaving the boat. He said the plaintiff was west of his position, fifteen to twenty metres away, and he said that just before the impact, he, the cross defendant, was twenty to thirty metres off shore. He heard the boat, looked up and saw it two or three metres away coming off the plane. That I infer to be after the impact. According to the cross defendant, the wind was coming from the north-west to the west. He said it remained relatively calm in the water, with very mild chop. He said the swell was less than half a metre. Coming out from Kioloa he proceeded directly from the wharf and he noticed no glare. He said he used his float in the water and so, too, did the plaintiff. The cross defendant said that the plaintiff had a white tether rope. He placed the accident as occurring at about 9.15 am. He said they entered the water for the second time at about nine o'clock and had been in the water for about ten or fifteen minutes. He said when he last looked, his stepfather's boat was approximately fifty to sixty metres away, and that would have been within five minutes of the accident. He described the floats that he and the plaintiff were wearing as each being highly visible on the water.
14 The first defendant said that he proceeded out towards Brush Island accompanied by his deckhand, Timothy Leather. He was heading for the eastern side of the island to dive for abalone, having left Kioloa boat ramp about 9.00 am. He said that when he left Kioloa, there was a wind blowing which he estimated to be a twenty knot westerly. The sky was clear. He said that he followed the shoreline north having left Kioloa and then turned to travel east to proceed along the southern side of the island. He said he reduced his speed from twenty knots to ten to fifteen knots as it was getting rougher (T 361). He said that both he and Mr Leather were looking straight out in front of the vessel. He said the further out they went the choppier the sea was getting. He was influenced to reduce his speed by both the chop and the glare. He said the glare was "quite bad, I was sort of facing straight into the sun" (T 362). He said he passed the south-western tip of the island about forty metres off shore. He passed between the rocky outcrop and the bombora, a distance of twenty metres from the rocky outcrop. Here he said the sea was choppy and glary. He continued to travel east another fifty metres and that was where the accident happened: "I was still heading in an easterly direction and heard a thump, looked around, and noticed that I must have run over a diver" (T 364). At no time prior to the accident did he see either diver or any float in the water. As he approached the scene of the accident, he did see the other boat (carrying Mathew Smith and Colin Renton). He first saw it when it was 400 metres distant and he said that at the point of the accident, it was well over 100 metres to the east of the plaintiff.
15 Timothy Leather said that they left the Kioloa boat ramp between 8.50 am and 9.00 am. He said it was blowing a gale with a wind of 30-40 knots. He said that during the journey he was facing the front and he said the sea was choppier further off shore, although it had been smooth before the vessel he was proceeding in turned to the east. He said that having turned, the vessel travelled east along the south side of Brush Island and he was on the port side looking east over the front. He said that the first defendant eased off from a speed of 20 knots when he reached the island. He said at that point it was "glary and real windy" (T 484). He said it was choppy as well. He said the vessel "cut through the bommie". He did not see the plaintiff or his buoy prior to the accident. He said that the vessel was proceeding at about 10 knots at impact. In the moment before the accident he described visibility in these terms (T 484):
"It was glary, it was choppy, rough from the wind which westerlies do, visibility would have been wasn't too bad, like you could still see, but just the glare off the water reflects, takes a lot off the water's surface to make it hard to see a bubble."
16 He first saw the orange dive bubble when it was forty to fifty metres away, but this was after the accident. He became aware of the cross defendant's presence in the water after the accident when the cross defendant was yelling at them. He said that the cross defendant was at least five or ten metres east of the plaintiff at that point and a bit closer to shore.
17 I have reviewed in the broadest outline the evidence from those at the accident scene. That review discloses that there is really no issue but that the accident occurred after the first defendant had negotiated the channel described, but there is an issue as to the precise location of the plaintiff at the time he was injured. The first defendant said in the evidence I have reviewed that he had negotiated the channel about twenty metres from the outcrop and that he proceeded on fifty metres to the point of impact. The plaintiff said he left the boat thirty to thirty-five metres from the shore; his son said that his father entered the water forty metres off shore; and the cross defendant said that the entry was fifty to sixty metres off shore. I find myself unable to determine the precise location of the accident, but I accept that each swimmer had been in the water for about ten minutes or thereabouts, and that each man was heading towards the southern shoreline of the island. I am satisfied on the balance of probabilities that the accident happened somewhere within thirty metres of that shoreline and within fifty metres to the east of the imaginary centreline between the rocky outcrop of the island and the bombora. The location of those features is conveniently depicted in the aerial photograph (Exhibit 2(2D)).
18 I am also satisfied that a distance of approximately fifteen metres separated the plaintiff and the cross defendant at the time that the impact occurred.
19 I find further that both the plaintiff and the cross defendant were using floats tethered to their spearguns. I find that the plaintiff had an orange float and that the cross defendant had a yellow one, those floats being similar to Exhibit A and Exhibit P respectively (save as to the colour in the case of the "Picasso" float).
20 What were the weather conditions?
21 It is common ground that it was a fine, sunny morning. A certified extract from the official meteorological records was introduced into evidence as Exhibit S, and this records wind observations from Ulladulla on the morning in question. The content of the certificate is, of course, not challenged. The certificate content and the evidence that Captain Downes gave about it I consider affords the most reliable basis for determining what the sea conditions were like.
22 I have reviewed the evidence that the plaintiff and his son gave and that the cross defendant gave about the weather conditions. I have also reviewed the evidence that the first defendant and Mr Leather gave. I do not consider that the water was as calm as the plaintiff said nor as choppy as the first defendant said it was. I consider that it was probable that there was some chop, although not as much as the evidence of the first defendant and of Mr Leather would suggest.
23 Mr Leather said that by the time he and first defendant left Kioloa it was blowing a gale, "between thirty and forty knots" (T 482). His evidence to that effect is inconsistent with the content of Exhibit S and affects the reliability of his evidence as to the conditions encountered on the journey to the scene of the accident. The first defendant's estimate was that the wind was a twenty knot westerly when he left Kioloa, and this, of course, also was incorrect, although not to the same extent as Mr Leather's estimate.
24 I return to consider the certificate, Exhibit S. The certificate discloses that the wind strengthened and changed direction as the day progressed. At 7.00 am on 12 October 2001 the wind speed was two kilometres per hour, blowing from 210; at 8.00 am it was four kilometres per hour, blowing from 340 (that is, north-north-west); and at 8.57 am the wind speed was twenty-eight kilometres per hour, blowing from 250 (that is, west-south-west). I accept Captain Downes' evidence that the wind change at Brush Island would have been some fifteen minutes behind Ulladulla, and this makes the above recorded reading at 8.57 am a significant one. Once the wind was blowing from the west-south-west, as it was at 8.57 am, Captain Downes considered that the water off the south-east corner of Brush Island would have been affected by wind chop. His evidence (at T 289) was as follows:
"Q. Captain Downs, if at a particular point in time in relation to Brush Island the wind was blowing from the west, you would expect the south eastern corner of the island to be exposed to the weather?
A. To some extent, yes.
Q. And depending on the strength of the wind you would expect, I'm sorry, the strength of the wind would affect the amount that the south eastern corner of the island was affected by the wind, is that correct?
A. Yes.
Q. If the wind was blowing at 15 knots from the west, that's about 37 kilometres an hour I think isn't it?
A. 15, it's about - 15 knots you said?
Q. I'm sorry 15 knots is less than that, 15 knots is about 28 kilometres an hour, isn't it?
A. Exactly, yes.
Q. You would expect that there would be a significant wind chop on the south eastern corner of Brush Island?
A. There would be quite a bit, yes."
25 And, later (at T 292-293):
"Q. So is the answer to my proposition that if the wind was blowing from the west at a point in time at a speed of anywhere between 15 and 20 knots, the expected sea conditions at the south eastern corner of Brush Island would be significantly different from the conditions shown in the video that you saw this morning?
A. There is a certain amount of shelter to be seen, but I would expect the sea conditions to be much the same as in this force 4.
Q. As shown in the photograph force 4 in the documents that you've just shown us?
A. Yeah."
26 The reference to the photo in the above extract is a reference to a photo showing the effect of a Force 4 wind, being part of Exhibit 2 (1,3D). That photograph affords some visual assistance as to what effect a Force 4 wind would have upon open sea.
27 Captain Downes gave the following evidence as to the effect of a Force 4 wind on the visibility of a float (T 328-329):
"Q. And would you think that a person, skilled person driving a craft would have any difficulty seeing that sort of a float if there was a force 4 situation?
A. It might disappear for just momentarily behind the odd wave but basically it would be visible all the time, for almost all the time.
Q. And I think you said in your evidence earlier today that you thought that the maximum distance that the boat should get away from where the divers were dropped off was 75 metres where they could still see the floats?
A. Yeah.
Q. And would it be the case that a person who was an experienced person on the water would have a greater capacity to pick things up as a result of his experience?
A. You're talking about picking things up visually.
Q. Visually yes, such as floats and divers?
A. Should be no problem at all."
28 I accept the above evidence.
29 Allowing for the distance from Ulladulla to Brush Island, and finding as I do that the accident occurred about 9.15 am, the wind speed probably had just reached fifteen knots by that point of time, and the effect of the wind upon the sea is unlikely to have been as great as it would have been, say, thirty minutes later. The effect of the wind was probably between the effect of a Force 3 wind and a Force 4 wind.
30 Accepting as I do the content of the meteorological certificate and the evidence of Captain Downes as to its significance, I do not consider it likely that the sea was perfectly calm when this accident happened. Rather, I consider it more likely than not that there was chop building up. However, I do not accept that the chop was such as would afford an acceptable explanation for the failure of the first defendant and of Mr Leather to see the two floats before the accident happened.
31 Allowing for some chop, it would not have been such as to obscure vision of the floats continuously.
32 The other factor to be considered is the issue of glare. I have already referred to the first defendant's evidence as to his perception of the glare and its effect (para 14), and to the evidence of Mr Leather as to glare (para 15). The cross defendant gave evidence that he had no difficulty with glare as he proceeded to the island (T 754). His journey was earlier than that undertaken by the first defendant and the sun would have been lower for him; on the other hand, he did not follow precisely the same course as the first defendant. The cross defendant went straight out to the island from the boat ramp.
33 The second defendant gave evidence as to his experience in trying to find floats he had laid in the water off Brush Island on occasions when he was confronted by the sun at 40. His evidence was that he found it very difficult to see floats when travelling in an easterly direction (T 656), and he adopted the procedure in glary, choppy conditions of approaching any buoys he wanted to retrieve from the east, so that he had the sun behind him. I am not persuaded by the evidence of this witness that his son was confronted with such glare as would have prevented him from seeing the plaintiff's float and that of the cross defendant.
34 Captain Downes, who I assess to be a very experienced, objective and reliable expert, wrote in his report (Exhibit T):
"With datum based on Brush Island at 0900 on the 12th October, 2001, this information may be summarised as follows:-
3.1 Sunrise was at 0522 and the sun's altitude at solar noon (1122) was approximately 61.1/2. At 0900 the sun's altitude would have been about 4348' and its bearing 06323'. Whilst Mr. Perese would have been heading up sun, there would have been little or no glare from the water."
35 A video was taken in October 2004 when Ronald Duncan, a charter operator with considerable diving experience, took his vessel to Brush Island. The journey started at 7.28 am (8.28 am daylight saving time). It has to be appreciated in viewing the video that the wind and tide conditions were different. Moreover, the camera was not always focussed directly ahead. It cannot be assumed that the vessel took the same path as the vessel which the first defendant was operating. However, the video captured glare from the sun to afford a visual appreciation of its possible impact. When Captain Downes was shown the video, he thought the glitter was greater than he would have expected. Nevertheless, having considered all the evidence that bears upon the point, I do not conclude that there was glare such as would have been likely to prevent a person keeping a proper lookout from seeing the floats which the plaintiff and the cross defendant were using.
36 Mr Duncan gave evidence that on the occasion the video was taken in October 2004 the floats were visible from at least 100 metres away at different times and on different angles (T 251). Earlier he said that one of the floats was seen fifty to sixty metres away at a particular point captured on the video (at about 8.50 am) (T 185-186).
37 There was a criticism of Mr Duncan to the effect that he was less than objective in his evidence, but I accept the evidence as to distances that he gave and which I have just recorded.
38 It is to be borne in mind that whatever the effect of the sun, it was not such as to have prevented the first defendant from negotiating the channel between the rocky outcrop and the bombora. The first defendant had available to him sunglasses which I am satisfied would have the effect of reducing the glare. The first defendant was unable to recall whether he had the sunglasses on when he passed the rocky outcrop but they were available for his assistance if the glare was troublesome. Doubtless, too, if the glare was so troublesome as to have prevented him from seeing if there were objects in the water, a change in direction would have been employed to address that difficulty.
39 The first defendant does not suggest that he found it necessary to change direction because of the glare. Whatever its effect and the effect of chop was, he says that he addressed this by reducing speed.
40 The first defendant had an obligation to keep a proper look out and to travel at an appropriate speed. That common law duty was also reflected in rr 5 and 6 of the Navigation (Collisions) Regulations 1983, to which Mr Kennedy referred. It is not suggested that those rules afford a basis for a statutory cause of action and they do not add relevantly to the common law duty owed by the first defendant.
41 The first defendant was aware that the area in which this accident occurred was one that was favoured by spearfishermen (T 418). It was his appreciation on the day in question that the general area was one where spearfishermen might be expected to be present (T 435). These were considerations relevant to what was required of the first defendant in the discharge of his duty of care.
42 The first defendant acknowledged in cross examination that it was incumbent upon him to keep a proper lookout, appreciating that he may find spearfishermen in the area (T 440). An explanation was sought as to why he did not see the spearfishermen in the water:
"HIS HONOUR: Q. How do you explain the fact that you didn't see them at any stage before the collision?
A. I'm not sure, I was just driving the boat keeping a lookout and I just didn't see them or didn't see any bubbles.
Q. Whatever the chop there must have been a point before the collision surely when they would have been visible to you, could you account for how you didn't see?
A. I just assume it was the glare and the chop.
Q. But did that prevent you from seeing what was immediately in front of the vessel? I'm just having difficulty understanding, can you help me with that?
A. I'm not sure, I didn't see so I don't really know, it was just the glare and the chop."
43 I find myself unable to accept that explanation.
44 The plaintiff's float and the cross defendant's float were quite large coloured objects. Mr Duncan described both floats as highly visible (T 268); so, too, did Captain Downes (T 280); and Mr Vanzino (T 545, 546). I accept, of course, as did Mr Duncan (T 217), that glare can disguise colour but the evidence satisfies me that had the first defendant been keeping a proper look out he would have seen the floats in time sufficient to have avoided the collision. I find that neither the first defendant nor Mr Leather was keeping a proper look out.
45 The video, Exhibit V, demonstrates how manoeuvrable the first defendant's vessel was and evidences its capacity to come quickly to a halt. The video showed the vessel coming to a halt within two boat lengths from a speed of ten to fifteen knots. The video also showed the vessel coming to a crash stop within half a boat length.
46 I find that had the first defendant seen the floats when he was twenty metres away, there would have been sufficient time for him to have avoided a collision if he was travelling at ten to fifteen knots. I find, further, that had he been keeping a proper look out he would have seen the plaintiff's float when he was no less than twenty metres away from it.
47 The more the water was affected by chop and glare the greater the need for caution in this area which the first defendant appreciated was used by spearfishermen. The first defendant was cross examined (T 442):
"Q. And the slower you go the easier it is to pick up things in the water?
A. Yes.
Q. Therefore I suggest to you that if you'd have been going slower, that is some speed well below 10 to 15 knots, say 8 to 10 or 8, then it would have been much easier for you to observe the floats and the spear-fishermen that were in the water ahead of your boat, isn't that correct?
A. Well maybe.
Q. Maybe. You just a moment ago conceded that the slower the speed the easier it is to see and the higher the speed the more difficult it is to see, isn't that correct?
A. Yeah, if you're going really fast it'd be hard to see I'd imagine.
Q. So what you're saying is, if you were going really fast then it'd be hard to see in the conditions that you say prevailed?
A. I assume so."
48 If, contrary to the finding I have made, the first defendant, whilst keeping a proper look out, was unable to see the floats from twenty metres away, then to proceed at ten to fifteen knots was to proceed too quickly.
49 I am satisfied for the above reasons that the first defendant was negligent and, having regard to his relationship with the third defendant, to which I shall presently refer more closely, I also find the third defendant to be vicariously liable for his negligence.