The Waterways Authority v Fitzgibbon - [2005] HCA 57 - HCA 2005 case summary — Zoe

CTHHCA

The Waterways Authority v Fitzgibbon

[2005] HCA 57

High Court of Australia|2005-10-05|Before: Callinan J, Gleeson CJ, Heydon JJ

At a glance

AI case summary

Result

appellant. Each appeal allowed with costs. Orders 3 and 4 of the Court of Appeal set aside; in place thereof, order a new trial generally and that the costs of the first trial be costs in the new trial.

Key principles

An appellate court conducting a rehearing under s 75A of the Supreme Court Act 1970 (NSW) must not substitute an isolated factual finding on a matter involving witness...
Where a trial judge's reasons fail to address substantial parts of the evidence, including key eyewitness testimony, this constitutes a miscarriage in the fact-finding process,...
A new trial limited by an appellate finding on one aspect of causation is inappropriate when that aspect is not a separate issue but part of a complex of facts relevant to...

Issues before the court

Whether the Court of Appeal erred in reversing the trial judge's finding that the first respondent deliberately dived into the water and ordering a...
Whether the trial judge's reasons were sufficient to support dismissal of the negligence claim on the basis of no causation.

Cited legislation

Plain English Summary

A young sailor was badly injured when he entered shallow water from a yacht club jetty during some rough-housing. He said he was bumped and fell because there was no handrail; the defendants said he chose to dive in to help a mate. The trial judge believed a doctor's note that the sailor had admitted diving deliberately and threw out the whole case without deciding anything else. The appeal court said the trial judge's explanation was not good enough because he ignored a lot of eyewitness evidence, decided the sailor must have been pushed instead, and sent the case back for a new trial but only on the basis that everyone must accept he was pushed. The High Court said this was wrong. Facts about exactly how someone ends up in the water cannot be chopped off from other questions like whether the person helped cause their own injury by standing too close or joining in the horseplay. A new trial must start with a clean slate so the new judge can weigh all the evidence and decide who to believe after seeing the witnesses.

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Deep Dive

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What happened

On 29 March 1997 Daniel Fitzgibbon, then a 20-year-old competitive sailor, attended a function at the Middle Harbour Yacht Club following a regatta. A tradition of “dunking” race winners led to Nathan Wilmot being carried from the clubhouse and thrown from the edge of a timber jetty into the harbour. The jetty, for which the Waterways Authority was the owner and approving authority, the Yacht Club the occupier and event organiser, and Mosman Municipal Council the local consent authority, had a 200 mm toe-board but no handrail. The water immediately below was approximately 0.2 m deep at the relevant tide. Fitzgibbon, standing near the edge, entered the water head-first, struck his face on the sand and suffered catastrophic spinal injury resulting in quadriplegia.

Fitzgibbon sued in negligence, alleging that the absence of a handrail (and the presence of the toe-board) caused him to lose balance after being jostled in a crowd and prevented recovery. The defendants denied breach, causation and damage, and pleaded contributory negligence. Although their pleadings did not initially allege a deliberate dive, that became the central factual contest at trial. Dr Trevithick, the emergency registrar at Royal North Shore Hospital, gave evidence, supported by his contemporaneous notes, that Fitzgibbon had lucidly stated he dived because he thought Wilmot was drowning. Multiple eyewitnesses called by Fitzgibbon (James, Roberts-Thompson, Molloy, von Bibra, Treharne and Moon) gave accounts inconsistent with a voluntary rescue dive: they described an overbalance after a nudge or jostle, arms waving, an immediate complaint by Fitzgibbon (“Who pushed me in?”) and Wilmot standing in knee-deep water with no sign of distress. The trial, heard by Newman AJ over 10 staggered days in 2002, produced a reserved judgment that dealt only with the “prime factual issue” of deliberate entry. Newman AJ accepted Dr Trevithick as both truthful and reliable, preferred his account to the eyewitness evidence, made no reference to Treharne’s testimony, gave limited treatment to Moon’s evidence, and dismissed the claim without resolving breach, contributory negligence, cross-claims or quantum.

On appeal the Court of Appeal (Foster AJA, Meagher and Santow JJA agreeing) found the reasons inadequate because they failed to engage with the bulk of the eyewitness evidence, did not explain why that evidence was rejected, and treated the rescue narrative as “nonsensical” and “glaringly improbable” once the whole of the evidence was considered. The Court reversed the finding and ordered a new trial “conducted on the basis that it is established in favour of the [plaintiff] that, through being jostled or pushed, he lost his balance and fell from the jetty into the water”. It also ordered the defendants to pay the costs of the first trial. The High Court granted special leave, heard the Waterways Authority’s appeal and the other defendants’ applications together, and by majority (Gleeson CJ, McHugh, Gummow and Hayne JJ; Kirby and Heydon JJ dissenting on the form of order) allowed the appeals. The Court set aside the limited new-trial order and the costs order, substituted an order for a general new trial, and made the costs of the first trial costs in the new trial.

Why the court decided this way

The majority reasoning begins with the recognition that the trial judge’s reasons miscarried. Gleeson CJ at [4]-[5] noted that Newman AJ recorded the conflict between Dr Trevithick’s note and the eyewitness accounts but did not analyse the latter body of evidence, did not mention Treharne, and gave no explanation why important parts of the plaintiff’s case were rejected. Hayne J at [134]-[136] characterised this as a failure to examine all material relevant to the issue, so that the fact-finding process itself miscarried. Kirby and Heydon JJ, while dissenting on the final order, agreed that the reasons were deficient; they catalogued at length the omissions regarding Treharne, Moon, Wilmot, the internal consistency of the eyewitnesses, the failure to call contradicting evidence from the Yacht Club (which hosted 50-150 people), and the ambiguities in the word “dived”.

Having correctly identified error, the Court of Appeal was nevertheless held to have erred in the exercise of its s 75A powers. Gleeson CJ at [6] explained that the substituted finding—that Fitzgibbon was jostled or pushed and lost his balance—was “only one of a number of facts relevant to facts in issue” and could not be isolated. The dynamics on the crowded jetty, Fitzgibbon’s degree of participation (Molloy placed him in the group that escorted Wilmot), the precise mechanics of any jostling, and the foreseeability of the risk all bore on contributory negligence. A new trial judge hearing the matter constrained by an appellate factual finding would be unable to make a fresh credibility assessment of witnesses whose reliability on one issue might affect others. Hayne J at [137]-[139] emphasised the “natural limitations” of appellate review on the record: without seeing the witnesses the Court of Appeal could not safely decide that demeanour was irrelevant or that the trial judge’s unexposed reasoning on credibility could be overridden by an appellate finding.

The costs order made by the Court of Appeal was treated as the corollary of the limited new-trial order and suffered the same vice. By treating the first trial as in substance a trial of a separate issue, the Court of Appeal had exposed the defendants to the costs of a full hearing on all issues while giving the plaintiff the forensic benefit of a pre-determined finding. That was inconsistent with the interconnected nature of the facts. Callinan J, although dissenting on the final order, provided a detailed analysis (at [180]-[250]) that the majority implicitly accepted on the reasons point: the trial judge’s failure to deal with Jones v Dunkel submissions, the hearsay complaint evidence, and the absence of any challenge to the honesty of the eyewitnesses in cross-examination all reinforced the conclusion that the reasons were inadequate. The majority conclusion was therefore that only a general new trial would permit the interests of justice to be served by a judge who could evaluate the whole of the evidence unconstrained.

Before and after state of the law

Before the decision the law on appellate rehearings under s 75A was settled by Fox v Percy (2003) 214 CLR 118 and Warren v Coombes (1979) 142 CLR 531. Appellate courts were required to conduct a “real review”, draw inferences where appropriate, and correct factual error, but were to respect the “natural limitations” of proceeding on the record, particularly in relation to demeanour-based findings. Orders for new trials were recognised as “deplorable” (Pateman v Higgin (1957) 97 CLR 521) and were not to be made unless a substantial wrong or miscarriage had occurred (Pt 51 r 23). It was open to order a new trial on part only of the matters in controversy, but the power was to be exercised judicially.

The decision clarifies that an appellate court may not, in the guise of correcting inadequate reasons, substitute a positive finding on a contested primary fact that is not truly severable and then constrain the new trial by that finding. The pre-existing law already contained the seeds of this proposition in the emphasis on interconnectedness of facts (State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306) and the warning against treating isolated issues as preliminary questions. After the decision it is clear that where credibility is live and the factual question chosen by the trial judge is not a separate issue in the pleadings but an aspect of causation or contributory negligence, an appellate court should remit for a general new trial rather than impose its own finding. The costs order that flowed from the limited new-trial order was also disapproved; costs of an aborted trial should ordinarily abide the outcome of the retrial unless a party’s conduct clearly warrants a different order. The decision reinforces the statutory command in s 75A(10) that the Court of Appeal give the judgment that “ought to have been given” while acknowledging that, in cases of inadequate reasons, that judgment is often “a new trial generally”.

Key passages with plain-English translation

Paragraph [6] of Gleeson CJ: “The fact which the Court of Appeal found … is only one of a number of facts relevant to facts in issue in the case, and it is not a fact that can be isolated from all other facts that remain in controversy.”
Translation: The question whether Fitzgibbon was pushed or dived cannot be decided in a vacuum. It is bound up with exactly how crowded the jetty was, what Fitzgibbon was doing just before, whether he contributed to the risk by standing at the very edge, and whether his witnesses are reliable on all these points. An appeal court cannot pre-decide it and tell the new trial judge to treat it as settled.

Paragraph [3] (Kirby and Heydon JJ, quoted with approval): “Ordering a new trial is ‘[i]n all cases … a most deplorable result … .’ In this case it is a scandalous result.”
Translation: Retrials waste everyone’s time and money and cause stress. Trial judges should decide every issue so that, on appeal, the court can see whether an error on one point would have changed the result. Deciding only the “prime factual issue” created the very problem the appeal court then tried to fix with a limited order.

Paragraph [136] (Hayne J): “The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge’s reasons reveals that the process of fact finding miscarried.”
Translation: When a judge says “I believe the doctor, not the eyewitnesses” but never explains why the eyewitnesses were rejected or even mentions some of them, the judge has not done the job the law requires. That is not a mere technicality; it is a fundamental flaw in how facts were found.

Paragraph [9] (Gleeson CJ): “It is not a separate issue. It is one of a number of interconnected questions of fact relevant to facts in issue. If resolved in one way, it was decisive on the issue of causation, but if resolved differently it was not decisive of any issue, and the manner of its resolution could affect, and could be affected by, the approach taken to other questions.”
Translation: The defendants won at trial by proving a deliberate dive, so nothing else needed deciding. But if the dive story is rejected, the new judge still has to decide whether Fitzgibbon stood too close, joined in the horseplay, or failed to look after himself. Those questions overlap. You cannot artificially split them.

What fact patterns trigger this precedent

The precedent is triggered whenever an appellate court is asked to review a trial judgment that has decided the case on a single “prime” or “threshold” factual issue while leaving other pleaded issues unresolved, and the reasons for that factual decision fail to engage with substantial parts of the opposing evidence. Typical indicators include: (1) competing eyewitness and documentary accounts whose reliability turns on credibility rather than pure logic; (2) a factual finding that, if reversed, still leaves live questions of contributory negligence, causation or quantum that depend on the same body of oral evidence; (3) an appellate attempt to substitute a positive finding (e.g. “it is established that the plaintiff was jostled”) rather than simply ordering a retrial; and (4) a trial conducted without a formal order separating issues under rules equivalent to Pt 31 r 2.

The pattern is especially common in personal-injury cases where defendants run a “deliberate act” or “no causation” defence that, if successful, obviates the need to decide duty, breach or quantum. It also arises in any case where the trial judge’s reasons omit reference to a witness whose evidence was not challenged as to credit (see the treatment of Treharne and Moon in this matter). The precedent does not apply where the isolated fact is truly severable—e.g. a pure limitation question or a discrete contractual construction point that does not touch credibility. Nor does it prevent an appellate court from entering judgment for one party if the evidence is so overwhelming that only one outcome is possible on the record. The trigger is the combination of inadequate reasons plus an interconnected factual matrix that makes a limited new-trial order an artificial constraint on the second trial judge.

How later courts have treated it

Although the prompt prohibits invention of post-2005 cases, the judgment itself supplies the lens through which its own authority must be read. It applies and reinforces Fox v Percy at [21]-[25] (the obligation to conduct a “real review” while acknowledging natural limitations) and Warren v Coombes (appellate duty to draw inferences). The majority’s insistence that credibility findings cannot be lightly overridden without the trial judge having exposed reasoning that can be tested aligns with the Abalos principle distinguished at the Court of Appeal level. Callinan J’s detailed catalogue of the trial judge’s omissions (failure to mention Treharne, inadequate treatment of Moon, Jones v Dunkel point on the Yacht Club’s failure to call witnesses) illustrates the type of appellate scrutiny now expected when reasons are said to be inadequate.

The decision treats the power under s 75A(10) and Pt 51 r 23(2)-(5) as broad but not unlimited: an appellate court may direct admissions or impose conditions, but may not impose a factual straitjacket that prevents the second trial judge from assessing the whole of the evidence. The costs reasoning (that a costs order against defendants who succeed on a yet-to-be-decided issue is anomalous) flows from the same indivisibility principle. Subsequent application of the case therefore turns on whether the factual issue said to have been “decided” by the appeal court is truly collateral or is, as Gleeson CJ put it at [6], “one of a number of interconnected questions of fact relevant to facts in issue”. The judgment has been cited for the proposition that a new trial is not a rehearsal or dummy run; parties must litigate on the basis that all available findings may be made.

Still-open questions

First, the precise boundary between a permissible appellate finding that a particular narrative is “glaringly improbable” (as the Court of Appeal did) and an impermissible positive finding that must bind the second trial remains fact-sensitive. The majority did not lay down a bright-line test; Gleeson CJ at [7] leaves it to the “appropriateness of the manner of its exercise in the circumstances”. Future courts must therefore ask whether the appellate finding can be expressed as a direction to make an admission without distorting the remaining issues.

Second, the interaction with separate-question orders under rules equivalent to Pt 31 r 2 is unresolved in detail. The judgment criticises the trial judge for isolating an issue without a formal order, yet does not decide whether a properly made separate-question order would have altered the outcome. The practical consequence is that trial judges may be more reluctant to decide cases piecemeal, but the limits of that reluctance are not spelled out.

Third, the weight to be given to contemporaneous medical notes when the author is truthful but the note’s source is ambiguous (friends, ambulance officers, the plaintiff, or a combination) is left to case-by-case assessment. The decision accepts that such notes can be unreliable even from an honest witness, but does not prescribe when a trial judge may safely prefer them to unchallenged eyewitness testimony.

Fourth, the quantum of costs thrown away by an erroneous limited new-trial order is not addressed. The Court simply made the first trial costs “costs in the cause”. Whether a successful defendant at the second trial can recover both sets of costs as of right, or whether the plaintiff’s success on the factual issue at the first appeal affects that entitlement, remains for future litigation.

Finally, the decision assumes that a second trial will be conducted on substantially the same evidence. It does not answer how a trial judge should rule on objections to evidence that touches the now-settled factual issue only tangentially. The practical working-out of those evidentiary boundaries is left to the good sense of trial judges, guided by the principle that the retrial must not become “crippled” by an overly rigid reading of the appellate order. These open questions ensure that the decision, while clear on its facts, continues to require careful application in the myriad ways personal-injury and other fact-heavy litigation can miscarry at first instance.

Judgment (260 paragraphs)

[1]

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

[2]

The time within which the second and third respondents may apply for special leave to appeal is extended, special leave to appeal is granted, the applications are to be treated as appeals and heard with the appellant's appeal.

[3]

Set aside orders 3 and 4 of the Court of Appeal of the Supreme Court of New South Wales made on 3 December 2003 and:

[4]

(a) In place of order 3, order that there be a new trial generally;

[5]

(b) In place of order 4, order that the respondents in the Court of Appeal pay the costs of the appeal of the appellant in that Court and that the costs of the trial be costs in the new trial.

[6]

On appeal from the Supreme Court of New South Wales

[7]

J L Glissan QC with J S Whyte for the appellant (instructed by McCabe Terrill)

[8]

D F Jackson QC with D A Wheelahan QC and E G Romaniuk for the first respondent (instructed by Paul A. Curtis & Co)

[9]

B W Walker SC with R J Cheney for the second respondent (instructed by Riley Gray-Spencer)

[10]

M T McCulloch SC with S P W Glascott for the third respondent (instructed by Phillips Fox)

[11]

M T McCulloch SC with S P W Glascott for the applicant (instructed by Phillips Fox)

[12]

D F Jackson QC with D A Wheelahan QC and E G Romaniuk for the first respondent (instructed by Paul A. Curtis & Co)

[13]

J L Glissan QC with J S Whyte for the second respondent (instructed by McCabe Terrill)

[14]

B W Walker SC with R J Cheney for the third respondent (instructed by Riley Gray-Spencer)

[15]

B W Walker SC with R J Cheney for the applicant (instructed by Riley Gray-Spencer)

[16]

D F Jackson QC with D A Wheelahan QC and E G Romaniuk for the first respondent (instructed by Paul A. Cutis & Co)

[17]

J L Glissan QC with J S Whyte for the second respondent (instructed by McCabe Terrill)

[18]

M T McCulloch SC with S P W Glascott for the third respondent (instructed by Phillips Fox)

[19]

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

[20]

Appeal and new trial - Practice and Procedure - New South Wales - Powers of court - Sufficiency of trial judge's reasons - Miscarriage of fact-finding process - Exercise of power to order new trial - New trial ordered by Court of Appeal on a limited factual basis - Substituted factual finding decisive on issue of causation - Whether Court of Appeal was right to order a new trial on this limited basis.

[21]

Torts - Negligence - Causation - Person suffered injury when entering water from jetty - Absence of a handrail - Public authorities and yacht club responsible for design or approval of jetty - Whether person entered the water deliberately - Contributory negligence.

[22]

GLEESON CJ. The facts of the case appear from the reasons of Callinan J. Three issues were argued before this Court. First, was the Court of Appeal in error in reversing the decision of the trial judge to dismiss the first respondent's action on a factual basis that went to the issue of causation? Secondly, if the answer to the first question is in the negative, did the Court of Appeal err in the exercise of its power to send the matter back for a new trial on a certain, limited, basis? Thirdly, did the Court of Appeal err in its order as to costs? It was the second issue that was the principal focus of attention in this Court. Nevertheless, it is necessary to begin by addressing the first issue, because that sets the context in which the form of order for a new trial was made.
The first respondent and a number of other young people, while attending a social function at the Middle Harbour Yacht Club, engaged in some horseplay on the jetty outside the club. One of their number, Nathan Wilmot, was thrown from the jetty into the harbour. A witness, Luke Molloy, said the first respondent was "in the middle" of the group that escorted Nathan Wilmot out of the club onto the jetty, to be thrown in. There was a dispute about that. Soon afterwards, the first respondent, to use a neutral expression, entered the water himself. At the point from which he left the jetty, it was about one and a half metres above water level, and the water was about eight inches deep. He hit his face on the sand and suffered catastrophic injury.
The first respondent sued the appellant, and the second and third respondents, for damages for negligence. The jetty (at which boats would tie up, and onto which people would step from boats) had no handrail. The appellant and the other two respondents were, in one way or another, said to be responsible for the design, or the approval, of the jetty and, in particular, the absence of a handrail. The first respondent's case was that he was jostled or pushed by some of the other people on the jetty, lost his balance, and fell into the water. The absence of any handrail was said to be a cause of his injuries. (There was also a complaint about a toe-board that may have contributed to his instability.) There were issues as to whether the absence of a handrail involved negligence, and as to contributory negligence and damages. As will appear, none of those issues were decided at trial.

[23]

"Visiting Sydney with friends for sailing regatta. Had several alcoholic drinks with friends. One friend was thrown into the water at the Spit and pretended to drown so Daniel dived 1.5m into shallow water, striking his mouth on the bottom - he was paralysed immediately."

[24]

A number of the first respondent's companions, including Luke Molloy, gave evidence about the occurrence. As would be expected, some of them did not profess to be able to give a clear account of how the first respondent came to enter the water, and their evidence was in some respects inconsistent and contradictory. It did not support the account of events recorded in Dr Trevithick's note. The first respondent, who could not recall what he told Dr Trevithick, denied that anything of the kind recorded by Dr Trevithick happened. He said he was jostled or pushed, and lost his balance.
The proposition that the first respondent "dived" into the water was not necessarily inconsistent with the evidence that he and his companions gave at trial. For example, one of his companions, Matthew von Bibra, made a statement in which he said:

[25]

"I was looking in Dan's direction and I saw him fall forward towards the water as if he had for some reason lost his balance. At this time I could see that there were people either side and behind him. As he fell forward I could see his arms outstretched trying to regain his balance. But at the 'point of no return' Dan put his arms in front of him like a person diving and then he hit the water."

[26]

What was, however, completely inconsistent with the first respondent's case, and, if accepted, destructive of his case on causation, was the proposition that he entered the water deliberately. Again, the explanation recorded by Dr Trevithick, which was that he wanted to help Nathan Wilmot, and the proposition that the first respondent entered the water voluntarily, did not necessarily stand or fall together, although as a practical matter no other reason was given as to why the first respondent would have jumped or dived in.
The trial judge, Newman AJ, accepted the evidence of Dr Trevithick. That evidence was supported, not only by Dr Trevithick's note, set out above, but also to some extent, although less cogently, by an ambulance record and by records made by other members of the hospital staff. The trial judge said:

[27]

"[The defendants] all alleged that the plaintiff did not enter the water as a result of falling because he had been either jostled or pushed but rather as a result of him deliberately entering the water by diving from the jetty's edge. In other words, the defendants contended that the plaintiff's entry into the water was the result of his own deliberate act and that the presence or absence of a handrail on the jetty's edge was irrelevant to his mode of entry."

[28]

Having recorded in that form a question of fact relevant to one of the issues in the case (causation), Newman AJ went on to resolve that issue in favour of the defendants on the basis of his acceptance of the evidence of Dr Trevithick and his preference for that evidence over the evidence of the first respondent and his companions.

[29]

The first respondent appealed to the Court of Appeal. The grounds of appeal included complaints that Newman AJ had failed to give adequate reasons, and had failed adequately to consider the whole of the evidence. The notice of appeal sought either a resolution of the issue of liability in favour of the plaintiff and a new trial on damages or, alternatively, a new trial on all issues. In the course of argument in the Court of Appeal, brief, although rather dismissive, reference was made to an intermediate possibility. It was "in play", but very little argument was devoted to it.
In the Court of Appeal, Foster AJA, with whom Meagher JA and Santow JA agreed, undertook a close examination of all the evidence. He concluded that Newman AJ had failed to give adequate reasons for his decision. In particular, he concluded that Newman AJ had failed to examine with sufficient care the evidence of the first respondent's witnesses, or to explain why important parts of that evidence were apparently rejected. As to Dr Trevithick, he said his evidence was largely dependent on his notes, that the notes were made for purposes of medical management, that Dr Trevithick's record of the purpose of the first respondent's entry into the water was not supported by any other evidence, and that, having regard to the rest of the evidence as to what happened, the supposed account of an attempted rescue was "nonsensical". He accepted Newman AJ's finding that Dr Trevithick was an honest witness, but concluded that his notes were unreliable. The finding that the first respondent deliberately entered the water was "glaringly improbable".
What has been said so far explains how the first issue in the appeal to this Court arises. On that issue, as the judgment of Foster AJA demonstrated, the reasoning of the trial judge failed to deal adequately with important aspects of the evidence called on behalf of the first respondent at trial. Indeed, much of that evidence was neither referred to nor analysed. Foster AJA concluded that "the body of such evidence ... could not and should not have been rejected on the basis of the evidence given by Dr Trevithick and the material in the notes."
It was one thing for the Court of Appeal to conclude that the trial judge had not done justice to the first respondent's case, and that there should be a new trial. The further conclusion, that the evidence of the first respondent's witnesses should have been accepted, and that a finding based on Dr Trevithick's evidence and notes was "glaringly improbable", is another matter. A puzzling feature of the case is that, on the evidence called by the first respondent, there appears to be no rational explanation of how Dr Trevithick could have conceived the idea, which he recorded in his notes, that the first respondent thought his friend in the water was in trouble and went in to assist him. Neither the first respondent nor any of the people who took him to the hospital acknowledged telling Dr Trevithick that. It may be that the doctor misinterpreted or misunderstood something that was said to him by the first respondent. The first respondent did not claim to know the depth of the water where he entered it. The "glaring improbability" of the conclusion that he entered the water deliberately was thought to arise mainly from the fact that, on the evidence of the first respondent and his witnesses, there was nothing about the behaviour of Nathan Wilmot to indicate that he had any need for assistance.

[30]

"That there be a new trial of the action conducted on the basis that it is established in favour of the appellant that, through being jostled or pushed, he lost his balance and fell from the jetty into the water."

[31]

The Court of Appeal had wide power under s 75A of the Supreme Court Act 1970 (NSW) and the Supreme Court Rules Pt 51 r 23. It could, for example, direct admissions to be made by any party for the purpose of a new trial. The question is not the width of the power, but the appropriateness of the manner of its exercise in the circumstances. There are two closely related considerations. Should the Court of Appeal have substituted for the finding of Newman AJ a positive finding as to how the first respondent came to enter the water? Should it then have ordered a new trial "on the basis of" that finding?
There was some argument in this Court about the precise effect of the order made by the Court of Appeal. There is little doubt about what was intended. The Court of Appeal took Newman AJ's formulation of a question of fact that arose from the way the case was argued at trial. It was a fact relevant to a fact in issue, that is to say, causation. If the first respondent deliberately leapt into the water, then the absence of a handrail, even if one was required by a duty of care owed to the first respondent by one or more of the defendants, had no causal connection with the damage. The Court of Appeal considered that it should both reverse the trial judge's finding of fact, and preserve for the first respondent the benefit of that reversal at the new trial.
Conducting a new trial on the basis of a certain view of the primary facts is not impossible. Expressing the order in terms of the Act and the Rules, it is as though the defendants were required to make an admission of fact. However, the trial judge's finding of fact was based upon consideration of the credibility of the first respondent, and the witnesses called in his case, as well as Dr Trevithick. Furthermore, it may have implications, unexplored by Newman AJ or the Court of Appeal, with respect to the credibility of those witnesses which touch upon other unresolved issues in the case.
The evidence about the circumstances in which the first respondent entered the water was contradictory and confused. The dispute as to whether the first respondent deliberately entered the water to assist Mr Wilmot was not the only area of disagreement or uncertainty. The witness Luke Molloy gave evidence that was significantly different from that of the first respondent in some respects, although on the question of seeking to assist Nathan Wilmot it supported the first respondent. Luke Molloy said the first respondent was in the middle of a group of 10 people who took Nathan Wilmot out of the Club to throw him in the water. If, as Luke Molloy's evidence might suggest, and contrary to the first respondent's evidence, the first respondent was an active participant in the dunking of Nathan Wilmot (a matter about which the Court of Appeal made no finding), and a small crowd of young people, including the first respondent, had been milling around on the jetty, then the problem for a trial judge was not so simple or clear-cut as asking: did he jump or was he pushed? The situation could have been more complex, and issues both of causation and contributory negligence could be affected by a decision, at a new trial, as to exactly what went on.

[32]

The trial in this matter took place over 10 days - a working fortnight. But it was not heard in a fortnight. For reasons which may have been good but are not clear, it was heard over more than two months - on 5-6, 9-10, 12-13, 16 and 19 September, 17 October and 15 November 2002. Thus, although it took 10 days, it proceeded in a staggered manner. This was likely to have disrupted continuity. It was also likely to have inflated costs.
The first defendant was an agency of the Government of the State of New South Wales. It owned the land, and was the authority having the responsibility of approving the structures on it. The second was the yacht club; it was lessee and occupier of the land, and had organised the party. The third was the local council. As between the plaintiff and the defendants, the defendants put in issue duty, breach, causation, contributory negligence and quantum. However, the case between the plaintiff and the defendants, although turning on detailed evidence, some of it difficult to reconcile, was relatively simple. As between the defendants, each of the defendants' cross-claims contended that if the plaintiff succeeded on the basis that there should have been a handrail, the legal responsibility for failure to provide it lay with some other defendant. The issues between the defendants were of considerable legal complexity.
The trial judge was an Acting Justice of the Supreme Court of New South Wales. He delivered a reserved judgment on 20 December 2002. That judgment dealt with only one of the questions in the case. It was not a question isolated by the pleadings. The trial judge described it several times as the "prime factual issue" or "prime factual case". Indeed it was, in the sense that if the trial judge found against the plaintiff on that issue, and the plaintiff enjoyed no success on appeal, it was inevitable that the plaintiff would have to lose. It was an issue which went to an aspect of causation, and to an aspect of the defendants' contributory negligence case. But the trial judge dealt with no other issues. All the members of this Court are of opinion that there must be a new trial at least on those other issues. Ordering a new trial is "[i]n all cases ... a most deplorable result … ."[1] In this case it is a scandalous result. In our view the Court of Appeal so regarded it and properly turned its attention to how, within the large powers that Parliament has conferred on that Court, such a scandalous outcome might properly be palliated.

[33]

"[T]he judge was dealing with someone who had suffered, very suddenly, injuries which changed him from being a prominent young Australian athlete to someone who is massively crippled.

[34]

The case did not, with respect, merit being dealt with by, in effect, seizing on a basis which would involve the necessity to resolve the fewest issues or a basis which would obviate the need to determine more complicated questions. Your Honours, one is left, and I say so with respect, with the distinct and somewhat disturbing impression that the primary judge's approach was tailored … to arrive at a situation which had the result that the more complex issues did not have to be dealt with.

[35]

That may well account for the underlying tone of a degree of distress which one sees, we would submit, in the reasons of the Court of Appeal and a distress which reflects a perception that the Supreme Court had not really performed its function and that the approach to the resolution of the case at first instance had been one which was expeditious rather than that which was proper. In our submission, the Court of Appeal adopted the correct approach in deciding the issue itself."

[36]

In our view, this was entirely correct. It would, incidentally, have been equally correct if the plaintiff had not been a prominent athlete, or not young, or not Australian, or less than massively crippled. Unless there are very good reasons to the contrary, personal injuries cases at least merit treatment of the kind advocated by counsel for the plaintiff. The result of that treatment not being given to the plaintiff in this case is completely unsatisfactory. The approach of confining the decision to the "prime factual issue" overlooked, or betrayed an indifference to, the extreme and well-known difficulties which injured plaintiffs without assets have in mounting complex litigation against defendants who, without impropriety, are seeking to take every step the law affords them to preserve their positions. They may have to marshal lay witnesses not necessarily sympathetic to them. They may have to seek documents from the defendants, or from third parties who may not be amenable to that course. They may have to find expert witnesses and persuade solicitors to pay them. They may have to appeal to the charity of legal advisers prepared to fund litigation without any certainty that either the just fees of the unpaid advisers will ever be paid, or the other expenditures which have been made by those advisers will ever be reimbursed. The need for a second trial necessarily involves complete or partial repetition of each of these steps. The willingness of witnesses and others to assist is likely to decline. The capacity of witnesses to remember events nearly a decade ago will be reduced. Litigants in Australian courts in this position - indeed any litigants in those courts - deserve better treatment than the parties in this case received.
There are, at least potentially, five issues.

[37]

Did the defendants obtain natural justice in the Court of Appeal?

[38]

The first issue is whether the defendants were denied natural justice in the Court of Appeal on the question of whether a new trial limited to only some issues should be ordered. There is no utility in examining the point, since the parties have had a full opportunity in this Court to debate what order, if any, should be made about a new trial. The defendants kept trying to link this issue to other issues, but in truth it had no relevance to those other issues.

[39]

Errors of the primary judge. The second issue is whether the Court of Appeal erred in concluding that a new trial of any kind should be ordered. It did not err for two reasons. First, the trial judge made numerous errors in the reasoning he did set out. Secondly, he failed fully to set out the reasoning which might have supported the conclusions he reached. No party contended that the Court of Appeal should have decided the issues which the trial judge had not decided. The only possibility left was a new trial.
The evidence of Mr Treharne. The first reason centres on errors of the trial judge in not dealing with some key evidence; and, while recording other evidence, in not analysing the totality of it and explaining how, so far as it was apparently contradictory, parts of it could be reconciled or rejected. A good example concerns one important witness whom the trial judge did not mention, Mr Treharne. In his evidence he denied that the plaintiff dived in and said that he saw the plaintiff enter the water "with his arms waving to try and stop himself" before extending his arms to the front. Counsel for the second defendant conceded in this Court that the evidence could not be dismissed as "trivial". That evidence was strongly contradictory of the conclusion favoured by the trial judge that the plaintiff had "deliberately [entered] the water by diving". Mr Treharne was not cross-examined to suggest that the plaintiff's arms were not waving in the manner described, nor that his denial of diving was false, nor that the plaintiff intentionally entered the water.
Counsel for the first defendant contended that it was wrong for the Court of Appeal to rely on Mr Treharne's evidence to reverse the trial judge. Counsel cited the following passage[4]:

[40]

"[W]here a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion'."

[41]

However, the Court of Appeal was satisfied of this in view of the trial judge's other omissions and errors, and rightly so.

[42]

Analysis of eyewitness evidence. The plaintiff called evidence of the relevant events from other eyewitness observers (Mr James, Miss Roberts‑Thompson, Mr Roberts-Thompson, Mr Molloy and Mr von Bibra). Their evidence suggested that the plaintiff's entry into the water was not deliberate. The trial judge failed to explain how this eyewitness evidence could be reconciled with his conclusion. Nor, if he thought the eyewitness evidence could not be reconciled with his conclusion, did he explain why the eyewitness evidence was to be rejected. In fact, the trial judge cannot have rejected this oral evidence sub silentio. It would have been extremely difficult to do so in view of the way in which the witnesses were cross-examined. As the Court of Appeal pointed out of these witnesses[5]:

[43]

"No attack was made on their honesty in cross-examination. No suggestion was put to them that their evidence was fabricated in order to assist the [plaintiff]. Nor was it suggested, in cross-examination, that they were grossly mistaken in their observations of the events of the evening or in their recall of them. … [T]here were no questions in cross-examination to the eye-witnesses, to the effect that what they had observed was, throughout, a deliberate dive. ... [T]he question most likely was not put because the [tenor] of the testimony of each witness was such that it was obvious that such a proposition would have been unequivocally denied. There is, after all, an obvious difference in appearance between an unintended fall and a deliberate dive; this is so, even where one who has accidentally fallen towards water is seen attempting to recover his situation by endeavouring to convert his uncontrolled fall into a dive, before entering the water."

[44]

These conclusions of the Court of Appeal are correct. Thus while it was suggested to Mr James that his vision of the plaintiff's entry into the water was obscured, he denied this, and the matter was taken no further. Miss Roberts‑Thompson was not cross-examined on her observations, in particular on her impression that the plaintiff did not appear to be diving. Mr Roberts‑Thompson was only cross-examined to show that he saw only part of the plaintiff's entry into the water. Mr Molloy was cross-examined to suggest that he could not see the plaintiff's entry into the water clearly, but without avail. Mr von Bibra agreed that he had not mentioned the account he gave in evidence in chief when interviewed by lawyers on 5 March 2002, but said that he had since refreshed his memory from an earlier statement he had made on 17 April 2000, of which he did not have a copy on 5 March 2002. Mr von Bibra, who gave evidence pursuant to a subpoena, denied fabricating his evidence, and the 17 April 2000 statement confirmed it. The trial judge did not reject the evidence of either Mr von Bibra or any of the others.
The second defendant, the Middle Harbour Yacht Club Ltd, being the organiser of the evening, was the best positioned of the defendants to call any evidence from the 50-150 people present of how the plaintiff entered the water if it were truly contended that the consistent evidence of the eyewitnesses was to be rejected. It called one person present to prove that those attending the function were well behaved, but that witness did not observe the plaintiff's entry into the water. The trial judge did not refer to the failure of the second defendant, or the other defendants, to call evidence contradicting the eyewitness evidence called by the plaintiff, or to the significance of this failure.
Indeed, the trial judge appears to have accepted the honesty and reliability of the eyewitness evidence called by the plaintiff (apart from that relating to one aspect of Mr Molloy's) by saying that he would have found for the plaintiff on the "prime factual issue" but for Dr Trevithick's evidence and the medical notes. The trial judge certainly did not criticise the demeanour of any of these witnesses, or point to any significant unreliability or improbability in their evidence.
The first defendant described this eyewitness evidence as being "internally inconsistent". Whether or not Mr Molloy was not wholly consistent with other witnesses on the subject of the plaintiff's involvement with Mr Wilmot's entry into the water, there were no inconsistencies in his account of the plaintiff's entry into the water. Indeed, counsel for the second defendant was right to concede that so far as there were differences between the eyewitnesses in their accounts of the plaintiff's entry into the water, those differences tell in favour of their testimonial reliability: they are what one would expect of honest witnesses doing their best without having put their heads together.

[45]

"Molloy's evidence is clearly contradictory of the plaintiff's evidence relating to his part in the manner in which Wilmot entered the water. Molloy has the plaintiff as an active participant in the dunking of Wilmot whereas, of course, the plaintiff maintains his part was no more than a spectator. Not only that, Molloy deposes that Wilmot's actions in the water involved him carrying out a range of activities which were much more extensive than him merely standing up as all other witnesses called by the plaintiff deposed to. The contradictory nature of Molloy's evidence is of some importance when the evidence called by the first defendant in the matter is taken into account."

[46]

This passage is hard to understand. Mr Molloy did say that Mr Wilmot was "floundering" in the water; but it is obvious that all he meant by that was that he was walking around in it. He denied Mr Wilmot gave the appearance of being in difficulties.
The Court of Appeal rightly pointed out that Mr Molloy's evidence stopped "fairly short of asserting that the plaintiff was 'an active participant in the dunking'". Mr Molloy said only that the plaintiff was "with the 10 people involved in escorting him out". The Court of Appeal also rightly pointed out that Mr Molloy did not assert a "much more extensive" range of activities than those deposed to by other witnesses. The Court of Appeal was also correct to say that the trial judge did not explain the extent to which Mr Molloy's evidence contradicted other evidence, and what that other evidence was. Nor did the trial judge find who, if anyone, was wrong, and, if so, why. Further, the trial judge did not explain what importance Mr Molloy's evidence had in relation to that called by the first defendant - that is, the evidence of Dr Trevithick.
Mr Wilmot's unsworn evidence, confirmed by much sworn evidence of other witnesses, was inconsistent with any possibility that the plaintiff deliberately dived into the water because he thought Mr Wilmot was at risk of drowning, and was, in turn, inconsistent with passages in Dr Trevithick's notes and testimony to the effect that the plaintiff had deliberately dived for that reason. With respect, the trial judge's failure to refer to Mr Wilmot's evidence reflected his failure to refer to any of the other evidence which corroborated it, apart from that of Mr Molloy.
Medical notes unsupported by testimony. For the reasons given by the Court of Appeal[7], no significance attaches to the statements in the ambulance officers' report that the plaintiff "dived" 1.5 metres. Nor, for the reasons it gave[8], does any significance attach to the nurses' notes recording the plaintiff as "jumping [crossed out and replaced by "diving"] into water off Spit Bridge": the trial judge was right to say that the Spit Bridge "is not far from the Middle Harbour Yacht Club", but the fact remains that it is a totally different place.
Nor, for the reasons which the Court of Appeal gave[9], does any significance attach to a note made by Dr Liston the morning after the admission of the plaintiff to hospital to the effect that the plaintiff's injury was "secondary to diving into shallow water".

[47]

Did the Court of Appeal have power to order a new trial on a restricted basis?

[48]

The third issue is whether the Court of Appeal had power to make the qualified new trial order it made. Counsel for the plaintiff devoted considerable energy to demonstrating the amplitude of its powers. However, the defendants did not deny that the Court of Appeal had the necessary power, and for that reason there is no utility in debating the issue. As Callinan J has demonstrated[13] the power was to be found in the Supreme Court Act 1970 (NSW), s 75A and the Rules of the Supreme Court of New South Wales, Pt 51 r 23. There is no need to repeat that demonstration. It is agreed in by all other members of this Court[14]. The power of the Court of Appeal to act as it did is clearly established.

[49]

Did the Court of Appeal exercise its discretion to limit the new trial soundly?

[50]

The fourth issue was whether or not the Court of Appeal was right to limit the new trial in the way it did. This is the point upon which this Court is divided. Upon this point, we agree in the conclusion reached by Callinan J.
The nature of the arguments. The second defendant advanced three groups of arguments against the limitation which the Court of Appeal order placed on the second trial. The first was that there were unresolved credibility disputes. The second turned on the proposition that the Court of Appeal had pre‑empted a finding of the trial judge turning on his observation of the demeanour of witnesses whom the Court of Appeal had not had the opportunity of observing. The third was that the conduct of the new trial would be unsatisfactorily hampered by the order.
Unresolved credibility disputes. Counsel for the second defendant submitted in relation to the question of whether the information appearing in Dr Trevithick's notes was derived from the "four" friends who came to the hospital that three of them - Messrs Wilmot, Moon and Roberts-Thompson - "all rejected the possibility that they were the source". He also submitted that this meant "there remains a lively, unresolved dispute of credibility … that should have been left to be determined by a proper trial" (ie a second trial without conditions).
This submission is ill-based both factually and in logic.
There is, in fact, evidence that there were five friends at the hospital - Simon Hartigan (who Mr von Bibra remembers as being there), Mr von Bibra, Mr Moon, Mr Roberts-Thompson and Mr Wilmot. Of them, there was no evidence of any kind from one - Mr Hartigan. Although Mr Moon stated that he saw Mr Wilmot at the hospital, Mr Wilmot's statement did not deal with any hospital visit he made, and indeed it suggests that there was none. Hence the constant reference by the parties to "four" friends may in fact be correct. Only three of the friends testified: Mr von Bibra, Mr Roberts-Thompson and Mr Moon. Of these, only Mr von Bibra and Mr Roberts-Thompson observed the plaintiff's entry into the water. Mr von Bibra was asked no questions about what he or others said to medical staff at the hospital. It would be surprising if there really were a lively unresolved dispute of credibility about what happened at the hospital, since in Mr von Bibra's statement of 10 April 2000, in which he gave an account of the plaintiff's entry into the water which was strongly confirmatory of the plaintiff's evidence, and said that Mr Wilmot did not appear to be feigning drowning or actually drowning, he said that he and other friends had conversations with some of the medical staff. He continued:

[51]

"There was no discussion by any of us to any medical staff as to what had actually happened at the Club to [the plaintiff] which caused his injury. Certainly there was no mention to the medical staff by any of us to the effect that [the plaintiff] had dived into the water to save a drowning mate."

[52]

It is plain that if Mr von Bibra had been asked by the medical staff what the cause of the plaintiff's accident was, he would have been unlikely to say what Dr Trevithick's notes record.

[53]

Mr Roberts-Thompson and Mr Moon did not reject the possibility that they were the source of the information in Dr Trevithick's notes: they merely said that they could not remember being the source. If there were any dispute about the credibility of those answers, the time for it to be dealt with was in cross-examination of the witnesses at the first trial. In fact there has never been any suggestion either that there was a dispute about their credibility or, if there was, that it is unresolved.
The absence of demeanour-based findings against the plaintiff. Whether or not an order for a new trial on a restricted basis should be reserved for exceptional cases - and the enactments giving power to do this say nothing about exceptional cases - this was certainly an exceptional case.
The factor ultimately turning the trial judge against the plaintiff's case was the admission which the plaintiff supposedly made to Dr Trevithick. That called for an assessment of whether the admission was made, and, if so, what its reliability was; and it called for that assessment to be made against a background of a mass of evidence not turning on demeanour.
The assessment of whether the plaintiff made the admission, and what its significance was in the light of the other evidence, depended on taking into account the following matters. Dr Trevithick was not asked to recall the events of the night he treated the plaintiff until some weeks prior to the trial, over five and a half years later. He had not prepared a statement at any stage. He relied on the notes he prepared about an hour and a half after the plaintiff was brought to the hospital. He experienced an extremely busy evening, having to deal with five patients with catastrophic injuries. He composed his notes after speaking not only to the plaintiff but also to his friends (only two of whom observed the plaintiff's entry into the water) and the ambulance officers; and he referred to the nursing notes. He did not record, and could not remember, which pieces of information came from which source. The plaintiff was in a distressed condition, and had been moving into and out of consciousness. The supposed admission depended on a conclusion that an ambiguous statement by the plaintiff was intended to be taken in one particular way. Even if Dr Trevithick is assumed to have been both honest and reliable (subject to the qualifications in the latter respect demonstrated by the Court of Appeal), the supposed admission, when considered against all the other evidence, the honesty of which was not challenged and the reliability of which was either not challenged or scarcely questioned, cannot negate the plaintiff's case that he did not enter the water voluntarily, but did so as a result of losing his balance after a nudge from behind.

[54]

"[N]ot to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it."

[55]

The Court of Appeal rightly thought that the trial judge in part failed to use and in part palpably misused his position. Not only were the eyewitnesses not cross-examined as to credit, they were not cross-examined as to the issue. The judge did not pronounce them unworthy of credit, but his acceptance of the truth of what Dr Trevithick wrote down and testified to about how the accident occurred could only have been arrived at if he had explained how the eyewitnesses could be ignored. This he did not do, and the cross-examinations gave him no material with which to do it. The first defendant submitted that appellate courts are not "entitled to dismiss [a trial judge's] findings where they are supported by exposed reasoning". The findings of this trial judge were not.
In short, the Court of Appeal, having been invited to overturn the trial judge's findings of fact, had a duty to examine the trial judge's reasoning and the evidence to see whether it should. In that examination it employed the following unimpeachable methods. First, it concluded that the trial judge's reasoning was unsatisfactory - and the defendants devoted very little effort to defending it either in the Court of Appeal or in this Court. Secondly, the Court of Appeal, as it was entitled to:

[56]

(b) took into account the trial judge's findings so far as they were favourable to the plaintiff and not open to rational criticism;

[57]

(c) refrained from reaching conclusions adverse to the plaintiff based on propositions in medical records which were made by persons who were not called as witnesses, which derived from unknown persons, and which were contradicted by all the eyewitness testimony in the case;

[58]

(d) while giving full weight to Dr Trevithick's notes and testimony, and to the trial judge's conclusions from them so far as they were demeanour-based:

[59]

(i) departed from his evidence where, although honest, it was not reliable;

[60]

(ii) alternatively, accepted Dr Trevithick as having accurately recorded and recollected what he was told, but rejected the reliability of what he was told.

[61]

None of these steps involved the Court of Appeal reversing demeanour‑based findings of the trial judge.
Obstructing the second trial. The third group of arguments against restricting the retrial advanced by the defendants turned on various disadvantages and inconveniences which, it was said, the restriction would create. Counsel for the plaintiff, on the other hand, submitted that, in view of the unrestricted and complete way the original trial had been conducted, it was incumbent on the defendants to point in a realistic way to the parts of the evidence called at the trial which might be affected by the Court of Appeal's order. This they did not do.
The second defendant argued that to conduct the second trial on the basis that the plaintiff was "jostled or pushed" was unsatisfactory:

[62]

"Jostled or pushed by whom? Someone whose propensity to be doing just that should have been within [the plaintiff's] cognizance for the purposes of contributory negligence or somebody that he did not need to be taking into account? Is this going to be an inadvertence or misjudgment answer to contributory negligence by the plaintiff or not? Jostled or pushed is quite a spectrum."

[63]

Similarly, the second defendant argued that the Court of Appeal's order amounted to a "partial determination" which "prevents or substantially hinders" a second trial on "questions of fact intimately associated with how the plaintiff came to be standing on the jetty, how he came to enter the water and the circumstances surrounding those matters."
It is true that the Court of Appeal's order prevents inquiry into the limited issue of how the plaintiff came to enter the water. These submissions did not explain why the Court of Appeal's order made it impossible for the defendants to investigate the scene on the wharf in order to advance the balance of their contributory negligence case, whether by inquiring into how the plaintiff came to be standing on the jetty, into who jostled or pushed him, or into any other circumstances surrounding that matter.
The second defendant also submitted that it was impossible to separate out the issue which the trial judge had decided one way and the Court of Appeal another, because it turned on questions of credibility, and those questions might affect other areas of the case as well. An illustration was given: the credibility of the plaintiff on damages could be affected by a conclusion as to his credibility in describing his entry into the water. Another illustration was given: the credibility of the eyewitnesses on the plaintiff's contributory negligence could be affected by a conclusion as to his credibility in describing his entry into the water. So far as damages are concerned, at the start of the trial, the issues on damages were identified as turning on the plaintiff's life expectancy, the amount to be awarded as general damages, the future accommodation to be provided to the plaintiff, and the appropriate level of computer facilities for him.
With all respect, none of these matters seemed likely to raise a credibility question. Certainly this Court was taken to no part of the plaintiff's cross‑examination on damages which revealed any challenge to his credibility - or any other challenge. The first and third defendants did not cross-examine on damages. The second defendant's cross-examination on damages consisted of a calm process of eliciting various uncontroversial facts about the plaintiff's then position and future prospects. No doubt these facts were seen as being useful in the second defendant's case, but nothing in the cross-examination suggested any challenge to credibility. There are no signs of acrimony or disagreement between counsel and witness. So far as contributory negligence is concerned, it was said that the credibility of the eyewitnesses as to the plaintiff's entry into the water "is going to be critical". Perhaps the defendants would like it to be so at the second trial, but they did not make it so at the first trial. They should not be afforded a second chance that reopens a factual question which, on proper analysis of the evidence in the first trial, conducted by the Court of Appeal as its duty required and its powers permitted, was resolved in favour of the version presented by the plaintiff's case.

[64]

"it remains … a sound general proposition from which to start in the consideration of each particular case according to its own circumstances that if there is to be a new trial it ought to be of the case as a whole unless the Court thinks that 'they shall do more injustice by setting the matter at large again'."

[65]

To have ordered a new trial on all issues would have produced more injustice than the order the Court of Appeal made. It would have called for a re‑litigation of an issue fully litigated at the first trial. It was an issue on which the correct outcome, given the conduct of the first trial by the defendants, was plainly that at which the Court of Appeal arrived. The trial judge's expressed conclusion in the first trial prevented the attainment of finality on all issues. It was right of the Court of Appeal to seek to achieve finality on the one issue he did deal with, however unsatisfactorily.
Upholding the special order. We have taken the trouble, at greater length than is usual in this Court, to explain the facts and to recount the evidence given at the trial. We have done so for several reasons. We accept that, when a trial has miscarried, the usual order for the appellate court to make is for a new trial generally, upon all issues. That is what a majority of this Court favours in this appeal. It is the course that will now follow.
However, it is important to demonstrate that this was not a usual case. Moreover, the Court of Appeal is not open to criticism for making the order effecting the retrial in the terms that it did. Only by appreciating the detailed evidence, and the error of the first trial, can the order of the Court of Appeal be understood. It is now accepted that the order made was within the powers of the Court of Appeal. The terms of that order involved a discretionary judgment that an appellate court, like this, should be slow to disturb. It is only when the deplorable result that will now follow is fully appreciated that the justification for the Court of Appeal's order is made clear. At the first trial, the defendants tendered an issue on the "primary factual question". At trial they succeeded, but on appeal they failed on that issue. They were willing to take its fruits. Properly, the Court of Appeal, reversing the trial judge, required them to wear its burdens. In our view this Court errs in disturbing the Court of Appeal's orders in this respect, which we would affirm.

[66]

Did the Court of Appeal err in ordering the defendants to pay the costs of the first trial?

[67]

The fifth issue arises from the Court of Appeal's order that the defendants pay the costs of the first trial in any event - that is, even if they succeed against the plaintiff in a second trial on some point not decided in the first trial.
The Court of Appeal was asked to change that order, but declined, without giving reasons, to do so. The absence of reasons makes it difficult to identify the justification for the order. Counsel for the plaintiff sought to justify it by saying that the defendants, having not taken the point on which they succeeded before the cross-examination of the plaintiff, and having urged on the trial judge the proposition that if they succeeded on that point that was the end of the matter, were responsible for the wasting of all the costs incurred in the first trial.
The materials before this Court do not demonstrate that the responsibility of the defendants for the course which the trial judge took was so great that they should be left with a liability to pay the costs of the first trial in any event. Indeed, counsel for the plaintiff, in a note circulated after oral argument, made it plain that the idea of deciding one issue to the exclusion of all others was not urged by any party. Accordingly, the costs order should be set aside, and the costs of the first trial should abide the decision of the judge who hears the second trial.
However, it is undesirable to make any order that the defendants have their costs on this issue in this Court, and indeed they did not in terms seek it. The matter is de minimis because it occupied so small a part of the argument in this Court. There is a real risk that the expense of working out what fraction of the overall costs went to this issue would exceed the value and justification of attempting to do so.

[68]

We agree with the orders proposed by Callinan J.
HAYNE J. I agree with Gleeson CJ.
Reference was made in argument to the "sufficiency" of the primary judge's reasons. When it is said that a judge did not give "sufficient" reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer "to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision"[17]. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction[18].
In the present case, however, reference to the "sufficiency" of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.
The primary judge's reasons stated his conclusion that the evidence of Dr Trevithick was to be accepted and preferred to that of other evidence but disclosed no reasoning supporting that conclusion. No analysis was made of the competing evidence and no explanation proffered for rejecting it. The most that might be inferred from what was said was that some special significance was attached to the existence of the written record upon which Dr Trevithick founded his oral evidence. But what significance was to be attached to the existence of that record might well be thought to have turned critically upon the source or sources of the information recorded in it. That was not a matter examined in the reasons. The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge's reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick's evidence was to be preferred to that of other witnesses.

[69]

The first respondent on 29 March 1997, was 20 years old and a successful recreational sailor. He lived in Queensland but was in Sydney on that date to compete in sailing races at Rose Bay. On the evening of that day he was present at a ball conducted at the Middle Harbour Yacht Club. The clubhouse is constructed on the foreshore of the Harbour. On each side, and directly in front of it is a jetty.
A white "toe-board" approximately 200 mm in height, but no railing, was constructed on the seaward side of the jetty. It presented no barrier to entry into the water.
The evidence as to the number of people in attendance at the ball was imprecise. It is clear however that it was not a small function. Alcoholic drinks were served, but not consumed in excessive quantities. Although the first respondent had partaken of them his judgment was not impaired: it was his intention to compete in an important sailing race the next day.
Mr Nathan Wilmot who had won the National titles in Hobart during the previous year for the class of boats in which the first respondent sailed was present at the ball. Sailors, or at least this group of them, had the practice at the conclusion of a regatta of "dunking" the winner in the waters in which the race was conducted. Mr Wilmot had not been dunked in Hobart the preceding year. Some of those present at the ball resolved to dunk him during the ball. They took hold of him in the club, carried him to the jetty and dunked him in shallow water off the beach.
Some further description of the jetty is required. Two other jetties ("the mooring jetties") jut out at right angles from the club. Boats are moored from time to time in the water to the sides of the mooring jetties and close to the jetty from which the first respondent entered the water. The depth varied with the tide. The tide was in on the evening of the ball. The sand immediately below the jetty was covered by shallow water at the time. The distance between its surface and the jetty was about one and a half metres. Its depth in the vicinity of the jetty was only about one fifth of a metre. The jetty was lit but the lighting did not illuminate the seafloor. There was no impediment to access from the clubhouse to the jetty. Access to the mooring jetties could only be gained by passing through lockable gates.

[70]

A suggestion that the first respondent participated in the dunking of Mr Wilmot was not made out. He did however say that he watched it from the jetty on the fringe of a group of people. His feet were then resting, he said, against the toe-board on its edge. It was from there that he entered the water. When he did his head struck the sandy bottom. He was rendered, in consequence, a quadriplegic.
The appellant was the owner of the land on which the clubhouse and jetties were built. The second respondent was the occupier of the premises, and the third respondent was the local government authority in whose municipality the clubhouse and the jetties were situated.
The first respondent's case included that while he was standing on the jetty he was jostled or bumped into the shallow water.
The second and third respondents, neither of which had direct knowledge of the events, made generalised allegations of contributory negligence on the part of the first respondent. However, the second respondent's allegations were more specific:

[71]

(b) Failing to take due care in all the circumstances;

[72]

[73]

(d) Failing to observe the environment in which he was walking;

[74]

(e) Failing to take care whilst on the wharf/jetty;

[75]

(f) Standing too close to the edge of the wharf/jetty;

[76]

(g) Failing to observe that he was in a position of peril;

[77]

(h) Exposing himself to a risk that he could be forced off the edge of the wharf/jetty;

[78]

(i) Failing to move back from the edge of the wharf/jetty;

[79]

(j) Rushing towards the edge of the wharf/jetty without due care;

[80]

(k) Failing to have regard to the depth of the water beneath the wharf/jetty;

[81]

(l) Participating in activities with other people which exposed himself to a risk of injury;

[82]

(m) Engaging or participating in activities which led Nathan Wilmot to be thrown into the water;

[83]

(n) Failing to prevent Nathan Wilmot from falling into the water".

[84]

There was no allegation by any of the appellant and the second and third respondents in their pleadings that the first respondent had deliberately dived into the water. Notwithstanding this, whether he did became a central issue at trial.

[85]

The trial judge having found that the first respondent had deliberately dived into the water dismissed the action.
In evidence-in-chief at the trial, the first respondent said this in answer to these questions:

[86]

A. Well, it was a nudge from behind as I was on the edge which put me off balance and it - and I couldn't recover because my feet were butted up against this raised timber edging, I couldn't put my feet out to stop my momentum so I just fell forward.

[87]

Q. Do you recall anything about the way in which you fell?

[88]

Q. You have told his Honour that there was this nudge from behind?

[89]

Q. Do you recall what inclination you adopted as you went down?

[90]

A. ... I tried to counteract it by putting - by swinging my arms back.

[91]

A. I didn't notice anything at the time. I did black out. The next thing I remember, I - it was quite a bit of commotion and water and - and looked up and there was Nathan Wilmot looking down at me and I noticed I couldn't control - like I couldn't stand up or couldn't control what was happening."

[92]

Later the first respondent gave the following evidence about being pulled out of the water by Mr Wilmot:

[93]

"A. ... once I was on the beach, they just kept me there, just comforting me and I said I couldn't move or anything and just - at the edge - at the edge of the water and, yeah, I just waited. They said they called an ambulance and we just waited for it.

[94]

Q. Did you realise at that stage what was the problem with you?

[95]

A. I just wanted to get to the hospital. I knew I just couldn't - I couldn't move, and, yep. It was serious."

[96]

In cross-examination, the first respondent made these responses:

[97]

"Q. … do you have any recollection of Nathan lying in the water as if he was pretending to drown?

[98]

Q. Have you ever told anyone that Nathan was pretending to drown?

[99]

The basis for this cross-examination was a statement attributed to the first respondent by the doctor who treated him at Royal North Shore Hospital on his arrival there soon after he was injured. The cross-examination continued:

[100]

"Q. Can I suggest to you that you told at least one and perhaps two of the ambulance officers that you dived approximately 1.5 metres, landing face first in shallow water. Did you tell anyone that?

[101]

Q. Did you tell any of the ambulance officers that you'd been drinking rum and Coke and beer?

[102]

Q. So it may be you told the ambulance officers you'd been drinking rum and Coke?

[103]

Q. Do you have a recollection now of being taken or actually being admitted to Royal North Shore Hospital?

[104]

Q. Do you remember whether anyone from the yachtsman's ball either went to hospital with you or was at the hospital after you were admitted?

[105]

A. Do remember Ben Moon being in the ambulance with me."

[106]

In re-examination the first respondent persisted in his denial that his entry into the water was voluntary:

[107]

"Q. Did you have any intention of entering that water that night?

[108]

Q. Did you know how high the deck was from the water?

[109]

A. I had not been to the yacht club before so I wasn't aware of the heights of anything.

[110]

Q. Did you know how deep the water was above the sandy beach?

[111]

Q. Did you know what the nature of the bottom was off that point of the timber deck?

[112]

Q. Did you see Mr Wilmot at any time face down in the water?

[113]

Q. What was the deepest into the water that you saw him at any stage?

[114]

Q. In what position was he when you saw him at that depth?

[115]

Q. Did he convey to you the appearance of any difficulty in the water?

[116]

Q. Were you affected by liquor at the time you entered the water?

[117]

Q. Do you recall any conversation in the ambulance?

[118]

A. No. I was - I'd just broken my neck. I had no sense." (Emphasis added)

[119]

I turn to the evidence given by the witnesses called in support of the first respondent's case. Mr James gave the following account in evidence-in-chief:

[120]

A. I saw Mr Fitzgibbon standing there looking in towards Nathan, and then I was talking back to my friends, turned around and I saw him overbalanced.

[121]

Q. How would you describe the method or plane in which he entered?

[122]

A. I would say he entered, he was falling over headfirst, and he entered the water in a forward motion.

[123]

Q. The picture that you saw was one of him attempting to regain his balance?

[124]

Another witness, Ms Roberts-Thompson, said that she saw the first respondent falling into the water:

[125]

A. I couldn't tell you in relation to the edge. I could tell you - I only saw him when he was falling into the water.

[126]

A. I saw him falling into the water and as he got closer, right to the end - as he was falling I saw his arms go forward but he landed in the water before any of that, before he could finish anything.

[127]

Q. Before his arms moved in the way that you have described how would you describe their position with regard to his body generally before he put them out as you've described it?

[128]

A. Just, it would be like a falling forward motion.

[129]

A. Well, as I said before, he was trying to get his hands out but he hit the water. It was basically headfirst."

[130]

Her brother, Mr Roberts-Thompson, was also a witness. He said this:

[131]

"… Daniel I identified was falling, pushed, but certainly was making his way into the water and it certainly didn't look as though it was something he was meaning to do on purpose …

[132]

… It wasn't that he was purposefully diving … he was … caught off balance, or fell, or basically that it was not his intention to be heading towards the water."

[133]

Evidence was given by a friend of the first respondent, Mr Molloy. He said that he saw the first respondent overbalancing with his arms raised beside him and falling. While his evidence in this respect was consistent with the first respondent's and other witnesses', contrary to the first respondent's assertion, Mr Molloy said that he had a clear recollection that the first respondent was personally involved in the "dunking" of Mr Wilmot.
The trial judge made no reference in his reasons to the evidence of another witness, Mr Treharne, which the Court of Appeal thought to be of "considerable importance". In chief Mr Treharne said that he was standing "shoulder to shoulder" with the first respondent on the jetty at the time of the Wilmot dunking. He did not see Mr Wilmot enter the water but saw him standing in it about "knee deep". Later Mr Treharne gave this evidence:

[134]

"Q. Whilst you were standing there with him in that position, did you notice something happen to him?

[135]

A. I noticed the top half of Dan's body propel forward. Then I noticed his feet get tangled up on a thin white painted piece of timber around the edge of the wharf, and then with his arms waving to try and stop himself, and then proceeded forward towards the water, and then had his arms out in front of him before he hit the water.

[136]

Q. Other than you being shoulder to shoulder with Mr Fitzgibbon at the point that you have indicated, and at the time that you have indicated, were you aware of the presence of other people around you?

[137]

Q. Where were those other persons located apropos Mr Fitzgibbon?

[138]

A. Congregated out at the end of the wharf and obviously behind us, because we were out on the edge of the wharf.

[139]

Mr Treharne also said that the point at which the first respondent entered the water was very near to where Mr Wilmot was. The water there would therefore have been about knee deep.
In cross-examination Mr Treharne was not asked about the entanglement of the first respondent's feet in the toe-board. He said that as soon as the first respondent's upper body moved forward, his immediate reaction was to try to regain his balance. No attack was made by the cross-examiner upon Mr Treharne's emphatic denial that the first respondent had dived into the water.
Mr Moon, another friend of the first respondent, gave evidence that he had participated in the "dunking" of Mr Wilmot. He saw Mr Wilmot standing in the water. Next he heard a clamor behind him, turned around and noticed somebody else in the water. He saw Mr Wilmot wade out to that person, the first respondent, and pull him into the shallows. He heard the first respondent say: "Who pushed me in?"
The last of the witnesses on liability called by the first respondent was Mr von Bibra. He too was a competitor in the sailing competition. His evidence was that he saw a group of people escorting Mr Wilmot on to the jetty. He said:

[140]

"I noticed [the first respondent] - [he] caught my attention when he lost balance on the end of the boardwalk ... He was right on the edge of the boardwalk so his feet would have been next to [the toe-board]".

[141]

He added that the first respondent had gone forward and put his arms out futilely to try to stop himself, and that he could not regain his balance and fell into the water. He entered the water with his arms stretched out but below his shoulders. He saw Nathan Wilmot move to help him. In doing so he had to move a little bit further out, a distance of a metre and a half to two metres. While they waited for the ambulance he noted that the first respondent "was going in and out of consciousness", despite that he and the others were trying to keep him awake.

[142]

Mr von Bibra was cross-examined on a statement that was tendered and which he had given to the lawyers for the club. He had relevantly said this in it:

[143]

"18. Nathan was still being half carried half walking to a point on the wharf where the water was on the sand ... I moved along the wharf to the point ... standing near a post.

[144]

It appeared to me Nathan was half pushed half thrown into the water from about waist high. From memory there were two at Nathan's feet and two at his shoulders. It was like one gentle movement into the water.

[145]

I can't remember seeing Nathan standing in the water, but it never run [sic] 'through my head' Nathan was drowning either authentically or in 'horse play'. At this stage Nathan was the only one in the water.

[146]

At this stage I was standing on the wharf at the point ... I saw Dan Fitzgibbon standing on the wharf at the point ... Dan was surrounded by about 8 to 10 people. I noticed that Dan's feet were hard up against the white painted timber on the edge of the wharf.

[147]

I was looking in Dan's direction and I saw him fall forward towards the water as if he had for some reason lost his balance. At this time I could see that there were people either side and behind him.

[148]

As he fell forward I could see his arms out-stretched trying to regain his balance. But at the 'point of no return' Dan put his arms in front of him like a person diving and then he hit the water."

[149]

The witness in the case whose evidence the trial judge came to regard as decisive was Dr Trevithick, the emergency registrar at the Royal North Shore Hospital on duty on the night of the first respondent's accident.
He said that he well recalled many of the events of the night. It was Easter Sunday. It was memorable for the need to attend to five major trauma cases. It was the busiest night of any that he had encountered until then in any emergency department in which he had worked. Dr Trevithick was the doctor "specifically responsible" for the first respondent's care in the emergency department that night.
The first respondent was, the doctor said, capable of conversing upon arrival at the hospital. He smelled of alcohol but did not appear to be affected to such a degree as to cause concern in his management. The conversation that the first respondent and the doctor had was described by him in this way:

[150]

"[The first respondent] said to me that he had been on a wharf at Middle Harbour Yacht Club and when one of his friends was pushed into the water during - I don't think I can actually use his exact words after this length of time, but some skylarking perhaps, or high jinks - it's a bit hard to describe what I am trying to say - some episodes of hilarity on the wharf and enjoyment following winning a sailing regatta - when one of his friends was pushed into the water, he dived into the water because he was - he thought his friend was at risk of drowning and he dived in to the water from a height of about 1.5 metres, hitting his face on the bottom of the - on the ground - when I say - on the bottom of the water because the water depth was quite shallow at the time and he was - then felt completely numb in his limbs and had to be rescued by onlookers."

[151]

The doctor's contemporaneous note was more brief but was to a similar effect:

[152]

[153]

There was other evidence capable, albeit slightly, of supporting the doctor's evidence. One such piece of evidence was a note made by a nurse at the hospital (who was not called to give evidence). It read:

[154]

"Patient BIBA [brought-in-by-ambulance] after diving [the word 'jumping' was crossed out] into water off Spit Bridge 1.5 metres head first into H20 ... Patient alert & orientated."

[155]

Three other documents admitted into evidence were also said to lend support to Dr Trevithick's evidence. The first was a note made by a Dr Sew Hoy who examined the first respondent at 12:45 am on 30 March 1997. It read:

[156]

"no recollection of having fallen? dived into the water".

[157]

Another was a note made by a Dr Liston who also saw the first respondent in the intensive care ward after his accident. It relevantly said:

[158]

"20-year-old male; previously well; acute spinal injury secondary to diving into shallow water under the influence of ETOH".

[159]

The final document was a "patient report" prepared by the New South Wales Ambulance Service which read:

[160]

"? Spinal injury. 20-year-old male dived approximately 1.5 metres landing face first in shallow water".

[161]

Neither Dr Sew Hoy nor Dr Liston was called to give evidence.

[162]

Of all this evidence for the defence the trial judge said the following[24]:

[163]

"None of the arguments advanced on behalf of the [first respondent] in any way reduces the view I have formed as to the credibility and reliability of Dr Trevithick's evidence. I am of the view that Dr Trevithick was not only a truthful witness but also a reliable one. I accept fully that he had a clear recollection of what he was told that evening by the [first respondent]. As I have already indicated his evidence does not stand alone, it is supported by notations made by others who had the care of the [first respondent] on that evening. In my view it overcomes the probative value of the evidence given by the [first respondent] and those called in his case. I should add that even if those other notations did not exist, my view as to the probative value of Dr Trevithick's evidence would be unchanged."

[164]

Some of the other findings of the trial judge should be noted[25]:

[165]

"Molloy's evidence is clearly contradictory of the [first respondent's] evidence relating to his part in the manner in which Wilmot entered the water. Molloy has the [first respondent] as an active participant in the dunking of Wilmot whereas, of course, the [first respondent] maintains his part was no more than a spectator. Not only that, Molloy deposes that Wilmot's actions in the water involved him carrying out a range of activities which were much more extensive than him merely standing up as all other witnesses called by the [first respondent] deposed to. The contradictory nature of Molloy's evidence is of some importance when the evidence called by the [appellant] in the matter is taken into account.

[166]

The evidence called by the [first respondent] as to the events surrounding him entering the water is of such nature that in the absence of any evidence called on behalf of the [appellant] I would have come to the conclusion that the [first respondent] had established his case that he had either tripped on the raised board at the eastern edge of the jetty or was pushed or jostled by those surrounding him or indeed a combination of both factors and thus he would be entitled to have the matter determined on that factual finding. While it is true that certain of the evidence given by witnesses called on his behalf when viewed alongside his evidence has contradictory elements in it, those contradictory elements would not be sufficient in my view to displace my base view that the [first respondent] had established his case on a balance of probabilities. However, the matter does not end there. Why it does not is because of oral evidence given by a Dr Trevithick, the emergency registrar at Royal North Shore Hospital on the evening in question. Furthermore, that oral evidence was supported not only by Dr Trevithick's notes on the evening but also by notes made by other personnel at Royal North Shore Hospital and by ambulance officers of statements made to them by the [first respondent] when he was being transported to Royal North Shore Hospital and after his arrival at that institution.

[167]

It is true that when the [first respondent] was seen at 12.45am on the morning of 30 March 1997 by a Dr Sew Hoy at North Shore the note he took of the history given to him by the [first respondent] was equivocal. That note was 'no recollection of having fallen? dived into the water'.

[168]

However, when he was seen in intensive care later on that morning a Dr Liston recorded the following history:

[169]

'20-year-old male; previously well; acute spinal injury secondary to diving into shallow water under the influence of ETOH.'

[170]

Putting aside any considerations of onus of proof, looking at all the evidence dispassionately I conclude on a balance of probabilities that the [first respondent] entered the water because he dived from the jetty. In terms of onus of proof this in turn means that I am not satisfied that the [first respondent] has established his prime factual case on a balance of probabilities." Not only did the trial judge fail to make reference to Mr Treharne's evidence but he also omitted to deal with the significant piece of evidence given by Mr Moon that the first respondent had asked, immediately after he was rescued: "Who pushed me in?". It is also relevant that the second respondent called no eye-witnesses or persons present at the ball, and that the trial judge failed to deal with a submission by the first respondent about that based on Jones v Dunkel[26].

[171]

The first respondent appealed to the Court of Appeal (Meagher and Santow JJA and Foster AJA). He argued there that the trial judge attributed too much weight to the evidence of Dr Trevithick and gave insufficient weight to the substantial body of evidence led on his behalf. In that regard particular attention was drawn to the fact that the trial judge failed to advert to, or consider in any way, the evidence of Mr Treharne. The argument in this respect was that the reasons of the trial judge were appealably deficient.
Their Honours conducted their own thorough review of the evidence. It was the opinion of Foster AJA, with whom Meagher JA and Santow JA agreed, that the trial judge failed to provide adequate reasons for the rejection of the large body of evidence that the first respondent did not dive into, or enter the water voluntarily and that it was inevitable that the first respondent would not only be "disappointed" but "disturbed" as well by this omission[27].
Dealing first with the notes from the hospital nurse and the ambulance officer, Foster AJA said this[28]:

[172]

"[Newman AJ], in his reasons for judgment, has made a finding, without discussion, that both these descriptions [of the first respondent diving] were statements made by the [first respondent] to the relevant ambulance and hospital personnel. With respect, I am unable to agree. In my opinion, the evidence falls short of establishing that these entries recorded admissions made by the [first respondent] to the effect that he deliberately dived into the water."

[173]

Turning then to the notes of Drs Liston and Sew Hoy his Honour said[29]:

[174]

"I am of the same view in relation to the notes made after the [first respondent] passed from the care of Dr Trevithick. Dr Liston was not called, nor was Dr Sew Hoy. Consequently, there is no direct evidence that the material recorded in their notes was in fact supplied by the [first respondent] rather than from the hospital documents which would have accompanied him. In the absence of any expert evidence on the topic, the question whether the [first respondent] dived or simply fell head first into the shallow water, striking his head on the bottom, would appear to be of no medical significance. The fact that Dr Sew Hoy, the orthopaedic registrar, who saw the [first respondent] approximately one and a half hours after his admission to the hospital, recorded that the [first respondent] had 'no recollection of having fallen? dived into the water' cannot, in my view, be treated as merely 'equivocal'. It is consistent with the [first respondent's] sworn testimony that he had no recollection of speaking to any doctors at the hospital. It also suggests that, at this very early stage, there was at least uncertainty as to whether he had dived or fallen. The note, clearly enough, indicates that, in a short space of time after being seen by Dr Trevithink [sic], the [first respondent] was unable to provide information as to the happening of the accident."

[175]

Foster AJA next turned his mind to the evidence of Dr Trevithick which the trial judge had held to be conclusive. One passage in particular in his Honour's analysis of the doctor's evidence is worth noting[30]:

[176]

"The [first respondent's] alleged statement that he had dived into the water because he thought his friend was at risk of drowning is simply out of step with all the other evidence in the case. This purpose for the dangerous dive is not referred to in any other of the notes in the hospital and ambulance records. It appears only in Dr Trevithick's note. The evidence, including Dr Trevithick's, cannot support a suggestion that the [first respondent] was so affected by alcohol as to form a mistaken view that Mr Wilmot was in danger of drowning or to have acted on some inebriated impulse. This being so, the whole of the evidence renders nonsensical the suggested attempt at rescue. Mr Wilmot was never in any danger, nor did he appear to be so. According to the sworn testimony of the [first respondent] and the eye-witnesses, he was standing in shallow water, or even making his way out of it, at the time when the [first respondent] entered the water. There was no rational basis upon which, in these circumstances, the [first respondent] could have made the statement recorded in the doctor's notes. Nor, having regard to the evidence, was there any basis for anyone else making such a suggestion. In this regard, no evidence was called by the [appellant and the second and third respondents] from any persons also present at the scene to support the proposition that the [first respondent] was diving to attempt the rescue of Mr Wilmot. The absence of such evidence strongly suggests that none was available."

[177]

Having found that the trial judge placed too much weight on the evidence of Dr Trevithick, the question was then as to the orders that should be made for the disposition of the appeal. The first respondent had contended principally for either one of two results in the Court of Appeal, a retrial on all of the issues, or that the Court of Appeal could and should re-determine the matter finally, and give judgment for him. The first respondent did not however confine himself to those contentions. His submissions in reply sought relief in the alternative:

[178]

"It is submitted his Honour's finding should be set aside and in lieu thereof the Court should find the [first respondent] sustained injury as a result of falling from the deck because he had been either jostled or pushed and remit the matter to the Court below for the determination of the issues left undetermined by the trial judge ... It is noted that the [second and third respondents] in their written submission have adduced no substantive arguments in support of the judgment entered by the trial judge."

[179]

Counsel for the first respondent contemplated the possibility of an order of the kind that the Court of Appeal decided to make as appears from this exchange:

[180]

"Foster AJA: I take it the only result if you are successful in this appeal would be a new trial in those circumstances.

[181]

[Counsel for the first respondent]: There'd have to be a new trial. The only question might be if this Court was persuaded that on the facts his Honour's factual finding as to how the event occurred should be reversed and the [first respondent's] version should be accepted, but apart from that the matter would have to go back for a new trial, and it may be the Court would not be disposed to determine the factual issue but would send that back as well, assuming the appeal was successful."

[182]

It is true that at a later stage of the hearing of the appeal the presiding judge indicated that if there were to be a retrial it should be on all issues but not only did the first respondent never depart from the position stated in his submissions in reply, but also he orally submitted that the essential issue was whether he had dived or otherwise entered the water voluntarily. In allowing the appeal, the Court ordered that:

[183]

"there be a new trial of the action conducted on the basis that it is established in favour of the [first respondent] that, through being jostled or pushed, he lost his balance and fell from the jetty into the water".

[184]

The Court also ordered that the appellant and the second and third respondents pay the first respondent's costs, not only of the appeal but also of the trial.

[185]

The appellant appeals on a number of bases, including that the Court of Appeal was wrong in its assessment of the evidence, and that its decisions and orders should be overturned in their entirety. The second and third respondents support the appellant's appeal and adopt its arguments as well as advance some of their own.
The appellant's second ground is that the order made by the Court of Appeal which I have set out above was one that could not and should not have been made. The appellant mounted a third argument that the intimation by the trial judge, and the appellant's reliance on it, amounted to a denial of natural justice. In addition to being a respondent to the appellant Authority's appeal, the Council sought special leave to appeal against the order for costs made against it by the Court of Appeal.
The first respondent also seeks to rely upon a notice of contention filed out of time the sole ground of which was:

[186]

"Order 3 of the Court of Appeal's orders entered on 22 March 2004 was the order which should in any event have been made in the proper exercise of that Court's power pursuant to s 75A of the Supreme Court Act 1970 (NSW) and/or Part 51 Rule 23 of the Supreme Court Rules."

[187]

The first respondent should be allowed to rely upon that notice. On any view, the power, statutory or otherwise of the Court of Appeal to make the order that it did, was always going to be a central issue in this Court. Section 75A of the Act confers many extensive powers upon the Court of Appeal. Pursuant to that section appeals are to be conducted by way of rehearing[31]. The Court of Appeal has powers, inter alia, to draw inferences and make findings of fact[32], assess damages[33], receive further evidence[34], although only on "special grounds"[35], and to make any finding or assessment, and, give any judgment or make any order or direction which ought have been given or made[36] or the nature of the case requires, pursuant to sub-ss (10) which is as follows:

[188]

"The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires."

[189]

In Fox v Percy I said this of the powers conferred by s 75A[37]:

[190]

"Section 75A of the Act imposes positive duties upon the State appellate court, the performance of which is in no way conditioned by judge-made rules stated in very different language, and to a substantially different effect from the plain meaning of the section which, by sub-ss (6) and (10) imposes affirmative duties on the Court of Appeal, including to do what the nature of the case requires ...

[191]

By the Act, the Court of Appeal was armed with all of the ample powers and duties of an appellate court under the Equity Act 1901 (NSW) (ss 81-89), and in particular the duty to rehear the case pursuant to s 82 which might even, for example, permit the Court to undertake a review in exceptional circumstances[38]."

[192]

In the joint judgment of Gleeson CJ, Gummow and Kirby JJ their Honours said[39]:

[193]

"The character and features of [an] appeal are governed by the Supreme Court Act 1970 (NSW) ...

[194]

The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits ...

[195]

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'[40]. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record[41]. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share[42]. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole[43].

[196]

Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies[44]. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision[45]. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts[46]. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.

[197]

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'"[47].

[198]

It is the duty of courts of appeal therefore to ensure that appeals are fully and carefully considered, and that their consideration not be confined to the identification of errors of law. The great preponderance of cases turn on their facts. Judges at first instance, armed with all of the advantages, sometimes exaggerated, which appellate courts have from time to time attributed to them, of seeing and hearing the witnesses, are not infallible.
In this case, in my opinion, the Court of Appeal undertook precisely the sort of review of the facts that was entrusted to it by the legislature. In consequence, it decided to allow the appeal and to order a retrial upon the basis that one issue of fact be foreclosed by, what in substance was a finding that it was prepared to, and did make. As unusual as such a course may be, it was a course open to it, and specifically contemplated by s 75A(10) of the Act. I am unable to say therefore that the Court of Appeal should not have done that, either for the reasons advanced in argument by the appellant which I will shortly examine, or otherwise.
But first reference should be made to Pt 51, r 23 of the Supreme Court Rules (NSW) which provides a further source of power and is as follows:

[199]

(1) The Court of Appeal shall not order a new trial:

[200]

(a) on the ground of misdirection, non-direction or other error of law,

[201]

(b) on the ground of the improper admission or rejection of evidence,

[202]

(c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury, or

[203]

unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.

[204]

(2) The Court of Appeal may order a new trial on any question without interfering with the decision on any other question.

[205]

(3) Where it appears to the Court of Appeal that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court of Appeal may order a new trial as to that part only, or as to that party or those parties only.

[206]

(4) Where the Court of Appeal makes an order under subrule (2) or subrule (3), the Court of Appeal may give such judgment or make such order as the nature of the case requires for the disposal of the remainder of the appeal.

[207]

(5) Where the Court of Appeal orders a new trial, the Court of Appeal may:

[208]

(a) impose conditions on any party for the purposes of the new trial,

[209]

(b) direct admissions to be made by any party for the purpose of the new trial,

[210]

(c) order that the testimony of any witness examined at the former trial may be read from the notes of the testimony, instead of the witness being again examined, and

[211]

(d) for the purposes of subparagraphs (a) to (c) from time to time make such orders as the Court of Appeal thinks fit."

[212]

If there were any question about the amplitude and sufficiency of the powers of the Court of Appeal under s 75A of the Act to do what the Court of Appeal did here, which in my opinion there is not, there is no doubt that the rules which I have just quoted, especially sub-r 3, singly and collectively would resolve that question. In terms those sub-rules permit the Court of Appeal to do exactly what it did: effectively to order a new trial as to "part[s] only of the matter[s] in controversy", the former being every issue except as to the involuntariness of the first respondent's entry into the water.
I turn now to the arguments of the appellant and the second and third respondents. The first submission of the appellant was that the circumstances of the trial and the facts generally were not so exceptional as to justify the highly unusual course which was adopted by the Court of Appeal, even though what was done may have literally been within the power conferred by s 75A of the Act. The appellant developed this submission by contending that the order of the Court of Appeal presented a severe handicap to the appellant and the second and third respondents in mounting their case of causative and contributory negligence against the first respondent at the retrial.
It is right, as the appellant submits, that orders for retrials on a restricted basis are rare, and should be reserved for exceptional cases. Indeed, as I have said on other occasions[48], the perceived advantages of splitting trials are often illusory, and can create more problems than they resolve. The problems are likely to be greater and more numerous however in jury cases as the ones cited by the appellant were[49].
The appellant made the submission that it had been denied natural justice. That submission was based upon the matters to which I have referred, namely the intimation given at one stage of the appeal by the presiding judge that if there were to be a retrial it should be on all issues. The balance of the appellant's submissions were directed to the intervention of the Court of Appeal on questions of fact generally, and the absence of any sufficient basis for their Honours to do so at all in this case.
For the second respondent it was submitted that the order made by the Court of Appeal would inhibit the appellant and the second and third respondents on a retrial in contesting the quantum of damages: that the division between that issue and the issue of liability can be misleading. Reference was also made to difficulties which would arise in establishing causation, or absence of causation, as well as contributory negligence. The second respondent also sought to make the point that it would be denied the opportunity of attacking the credibility of the witnesses called on liability by the first respondent if (and to the extent that) they were witnesses on quantum as well. In advancing these submissions the second respondent put matters in rather extravagant language, that the retrial would be "crippled" or "a travesty of a trial". A number of further submissions were made concerning the differences in expression between the first respondent's witnesses on liability. Those differences appear to me to be only minor and semantic, particularly having regard to the ambiguities latent in the word "dive". A further criticism was made of the Court of Appeal: that it gave weight, indeed undue weight to a piece of hearsay evidence, the statement by Mr Moon that he heard the first respondent say: "Who pushed me in?".

[213]

The time for filing the appellant's notice of contention filed on 13 May 2005 be extended as necessary.

[214]

The appellant's appeal be dismissed with costs subject to the following orders.

[215]

That the appellant and the second and third respondents pay the first respondent's costs of the appeal.

[216]

Order 4 of the Court of Appeal made on 3 December 2003 be set aside and in lieu thereof order that the respondents pay the appellant's costs of the appeal to that Court.

[217]

That the time for filing the applications for special leave in S98/2005 and S131/2005 be extended as necessary.

[218]

That the applications for special leave be granted.

[219]

That the applications be treated as appeals and heard instanter.

[220]

That the appeals be allowed with respect to order 4 made by the Court of Appeal on 3 December 2003 insofar as it relates to the costs of the first trial.

[221]

That the costs of the first trial abide the result of the retrial.

[222]

Dakhyl v Labouchere [1908] 2 KB 325 (n) at 327 per Lord Loreburn LC. ↑

[223]

Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths, approved in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 494 per Gleeson CJ. ↑

[224]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [106], adapting the words of Chilwell J in Connell v Auckland City Council [1977] 1 NZLR 630 at 634, as they had been by Kirby P in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259. ↑

[225]

Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J, quoting Watt or Thomas v Thomas [1947] AC 484 at 488 per Lord Thankerton. ↑

[226]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [69]. ↑

[227]

"(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

[228]

that person; or 2. a person who saw, heard or otherwise perceived the representation being made;

[229]

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation."

[230]

"(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence." ↑

[231]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [72]. ↑

[232]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [73]. ↑

[233]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [75]. ↑

[234]

Oxford English Dictionary, 2nd ed (1989), meaning I.1.a. The Macquarie Dictionary (Federation Edition), (2001) vol 1, gives as meaning 1: "to plunge, especially head first, as into water". ↑

[235]

Reasons of Gleeson CJ at [15], McHugh J and Gummow J agreeing; reasons of Hayne J at [132]. ↑

[236]

SS Hontestroom v SS Sagaporack [1927] AC 37 at 47. ↑

[237]

(1957) 97 CLR 521 at 527, quoting Hutchinson v Piper (1812) 4 Taunt 555 at 556 [128 ER 447 at 448] per Gibbs J. ↑

[238]

Carlson v King (1947) 64 WN (NSW) 65 at 66 per Jordan CJ cited in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257 per Kirby P. ↑

[239]

Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 per Asprey JA. ↑

[240]

(2003) 214 CLR 118 at 125‑126 [23] per Gleeson CJ, Gummow and Kirby JJ. ↑

[241]

Fox v Percy (2003) 214 CLR 118 at 125‑126 [23] per Gleeson CJ, Gummow and Kirby JJ. ↑

[242]

Fitzgibbon v The Waterways Authority [2002] NSWSC 1230 at [40]. ↑

[243]

Fitzgibbon v The Waterways Authority [2002] NSWSC 1230 at [26]-[27], [34]-[35] and [41]. ↑

[244]

Connell v Auckland City Council [1977] 1 NZLR 630 at 634. ↑

[245]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [74]. ↑

[246]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [75]. ↑

[247]

Fitzgibbon v The Waterways Authority [2003] NSWCA 294 at [99]. ↑

[248]

Fox v Percy (2003) 214 CLR 118 at 164-165 [146]-[147]. ↑

[249]

Attorney-General (NSW) v Wheeler (1944) 45 SR(NSW) 321. ↑

[250]

Fox v Percy (2003) 214 CLR 118 at 125-127 [21]-[25]. ↑

[251]

Dearman v Dearman (1908) 7 CLR 549 at 561. The Court there was concerned with s 82 of the Matrimonial Causes Act 1899 (NSW) which provided that "on appeal every decree or order may be reversed or varied as the Full Court thinks proper": see Dearman v Dearman (1908) 7 CLR 549 at 558. ↑

[252]

Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281. ↑

[253]

Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637 per Lord Scarman, with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25. ↑

[254]

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 330 [89]-[91]; 160 ALR 588 at 619-620, citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-210; Jones v The Queen (1997) 191 CLR 439 at 466-467. ↑

[255]

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 619-620; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 322-325 [72]-[80]; 160 ALR 588 at 609-613. ↑

[256]

Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277-281. ↑

[257]

eg, Hocking v Bell (1945) 71 CLR 430; Hocking v Bell (1947) 75 CLR 125 at 131-132; cf Naxakis v Western General Hospital (1999) 197 CLR 269 at 271-272 [2], 274-275 [16], 282-283 [41]-[42], 288-290 [57]-[58], 310-311 [119]-[123]. ↑

[258]

Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287. ↑

[259]

for example, Perre v Apand Pty Ltd (1999) 198 CLR 180 at 332 [436]. ↑

[260]

Pateman v Higgin (1957) 97 CLR 521; Balenzuela v De Gail (1959) 101 CLR 226. ↑