These are issues that arose for consideration in the case of Lets Go Adventures Pty Ltd v Barrett  NSWCA 243 (22 September 2017).
What happened — the plaintiff’s version
The plaintiff (Barrett) was an experienced scuba diver. He operated a dive business where he would organise training and diving expeditions for his clients. Neither the plaintiff nor his business owned a boat. The plaintiff had established relationships with various other suppliers to, such as Lets Go Adventures Pty Ltd to charter their boat.
On 15 January 2012 the plaintiff was taking a group of 6 people on a boat dive. The boat, and boat’s crew, were provided by Lets Go Adventures Pty Ltd. On the day of the dive, Mr Barrett’s clients entered the water. Mr Barrett was ‘dive buddy’ with one of his clients, Mr Moore. During the dive Mr Moore got into difficulties and ‘began a free (uncontrolled) ascent’. Mr Barrett tried to control Mr Moore’s ascent but the end of the story is that both arrived at the surface too quickly. Mr Moore was unconscious and had to be lifted onto the boat. He regained consciousness. The boat’s captain, Mr Shorter, set up a ‘C’ sized oxygen cylinder to deliver oxygen therapy to Mr Moore via Hudson mask. It took some time to collect the other divers and equipment before the boat could return to shore and Mr Moore was transferred for medical care. Mr Barrett alleged that the oxygen supply in the ‘C’ cylinder ran out before the boat reached the shore.
Mr Barrett did not seek medical care. He said that whilst on the boat he was breathing from a dive cylinder that contained 50% air and 50% nitrogen as, in his view, there was no other oxygen supply on the boat.
After the dive the plaintiff began to suffer symptoms consistent with decompression illness. These were first reported to his doctor on 4 May 2012. As a result of his symptoms he could no longer manage his dive business and “closed the doors” on 30 June 2012.
The plaintiff sued the defendant on a number of bases. First that the defendant had supplied a service to the plaintiff and under the Australian Consumer Law was required to render that service with due care and skill. It was alleged that the defendant failed to have an adequate oxygen supply on the boat, failed to provide first aid to the defendant in the form of oxygen therapy and, interestingly, was negligent in advice that Mr Shorter gave to Mr Moore.
The issue of advice to Mr Moore was disputed. The allegation was that Mr Moore struck his head on the boat when entering the water. It was alleged that he told Mr Shorter this and that he wanted to abort the dive. It was further alleged that Mr Shorter advised Mr Moore that he would have to locate Mr Barrett and advise him that he wanted to abort the dive. As a result Mr Moore proceeded underwater and got into difficulty and this required Mr Moore to rescue him — to act as a good Samaritan. This argument is not unique. I have noted elsewhere that where a person negligently creates a situation that requires rescue they not only owe a duty to the person who needs to be rescued, but also to their rescuer (“Cop sues offender’s family” (May 22, 2013). There I said: ‘The fact that those that cause an injury to one person owe a duty of care to the rescuers is not at all controversial – it was first decided in Chapman v Hearse in 1961 ((1961) 106 CLR 112,  HCA 46)’). The issue was that Mr Shorter denied that that conversation took place. Even Mr Moore, in his evidence, did not say that he told Mr Shorter that he had struck his head.
The result at trial
Mr Barrett was successful at trial. Because the claim had been framed in terms of the Australian Consumer Law various provisions of the Civil Liability Act 2002 (NSW) relating to signed waivers and duties to warn of obvious risk did not apply.
The trial judge found that Mr Shorter, the captain of the boat:
- Failed to provide first aid care to Mr Barrett;
- Failed to carry sufficient oxygen (she found that the C Cylinder ran out and that there was no D cylinder on board;
- Knew that Mr Moore had struck his head and yet Mr Shorter did advise him to proceed with the dive.
The defendant appealed to the Court Of Appeal (Justices Basten, Gleeson and Adamson). The Court of Appeal analysed the case on the basis that there were three claims. They were:
- The oxygen supply case;
- The lifting case; and
- The head injury case.
The essence of the oxygen supply case wat that Mr Shorter should have identified that Mr Barrett was or might have been suffering from decompression illness and that he required oxygen and that it was a relevant failure to both offer oxygen and to have sufficient oxygen on board to supply bot Mr Moore and Mr Barrett until the boat returned to shore.
The oxygen supply case
Did Mr Shorter know the plaintiff needed oxygen?
Mr Shorter asked on more than occasion whether Mr Barrett was alright and he confirmed that he was. Mr Barrett at no time asked for oxygen but it was argued that this was ‘implied’ by his coughing and that he made use of a small bottle of nitrox that was 50% oxygen and 50% nitrogen. Counsel for Mr Barrett argued (at ):
… the defendant ought not to have accepted the plaintiff’s assurance that he was all right but, rather, Mr Shorter should have demanded the plaintiff’s dive computer, ascertained that the ascent had been too fast and required him to have pure oxygen therapy.
The Court of Appeal rejected this argument. Adamson J said (at ):
I am satisfied that the trial judge’s finding that the defendant ought to have been aware that the plaintiff needed oxygen was erroneous, having regard to the evidence referred to above. The plaintiff was an experienced diver; he was an adult; he was running a dive business; and as far as the evidence revealed, no one on the boat had greater expertise in diving and decompression illness than he did. To require the defendant to countermand the plaintiff’s own assessment in circumstances where (as the plaintiff admitted in the incident report form) the dive did not require a decompression stop and no symptoms were apparent would, in my view, be to elevate the standard of care required to a higher level than reasonable care. If anyone had a responsibility to review the plaintiff’s dive computer, it was the plaintiff himself. He was aware that he had come up quickly and took precautions himself by breathing nitrox when on board.
Was there sufficient oxygen on the boat?
With respect to the oxygen supply the defendant said that there was both a C and D oxygen cylinder on the boat. The plaintiff case was that there was no D cylinder but his evidence was, at best, that he did not see the D cylinder. Not seeing it does not mean it was not there. The defendant had evidence from its employees that the cylinder was there as well as documentary evidence to show that they owned and serviced both cylinders. The burden of proof was on the plaintiff and he could not prove that the cylinder wasn’t there. It wasn’t brought out because Mr Moore was receiving oxygen from the C cylinder and further oxygen was not requested or used.
Mr Barrett had suggested that the C cylinder ran out of oxygen before the boat reached the shore but his own incident report said that he asked Mr Shorten if he could take the C cylinder whilst Mr Moore was transferred to medical care, and Mr Moore remained on oxygen until he reached the medical centre. Adamson J said (at ):
In light of the plaintiff’s request of Mr Shorter that he borrow the “C” cylinder and his admission that oxygen was supplied to Mr Moore until he arrived at Nelson Bay hospital I do not regard the plaintiff as having discharged the onus of proving that the “C” cylinder did not have sufficient oxygen which could have been supplied to the plaintiff had he asked for it.
And would it have made a difference in any event?
Even if there was no D cylinder the court found it would have made no difference. First the C cylinder could have been connected to a second mask to supply Mr Barrett had he asked for it. Further, Mr Moore was receiving oxygen through a Hudson mask that delivered concentrations of about 40% oxygen (the oxygen is mixed with the air to produce that result even though the gas coming out of the bottle is 100% oxygen). At the same time Mr Barrett was using the nitrox bottle with a demand mask. That mask does not mix the gas from the bottle with air so he was breathing a mixture of 50% oxygen and 50% nitrogen. The result was that event without the D cylinder ‘Mr Barrett was probably inspiring a higher fraction of oxygen that Mr Moore’ (see ). It followed that Mr Barrett could not prove that a further supply of oxygen on the boat would have made any difference to the outcome.
Conclusion on the oxygen supply case.
In other words the plaintiff could not prove that there was insufficient oxygen on board. The C cylinder was sufficient and he could not prove that there was no D cylinder, only that he didn’t see it, but of course he did not ask for it or for any oxygen. Finally the plaintiff could not show that a further supply of oxygen would have made any difference to the outcome.
The lifting case
This case was based on the claim that the defendant had negligently failed to assist with lifting Mr Moore onto the boat. The event happened in 2012. Mr Barrett first raised the issue of physical injury in 2015. Adamson J said (at ):
The finding that the physical problems suffered by the plaintiff were the result of his having to lift Mr Moore was, in light of the delay in, and circumstances of, their reporting, glaringly improbable. Moreover there was no express finding of negligence per se of failure to render services with due care and skill since there was no identification of what the defendant ought to have done to avert the risk of harm and whether, had the defendant done what it is alleged it ought to have done, the harm would not have been suffered. In these circumstances, if her Honour found the Lifting Case to be made out, she was in error.
The head injury case.
This was the claim that Mr Shorter advised Mr Moore that if he wanted to abort the dive he had to advise Mr Barrett (his dive buddy) and that required him to actually dive down and find Mr Barrett who had already proceeded underwater. Further, it was alleged, that Mr Shorter gave that advice knowing Mr Moore had been struck by the boat and suffered a head injury.
Mr Moore’s statement was to the effect that he told Mr Shorter that he wanted to abort the dive, not that he had struck his head (at the time of the trial Mr Moore was suffering from a terminal illness and could not give evidence in court, so all they could rely on was a written statement. The statement did say that he had struck his head, but it did not say that this is what he told Mr Shorter). Mr Shorter denied that Mr Moore said he had struck his head.
Adamson J said (at ):
… there was no evidence that Mr Shorter knew of the head injury. It was not suggested that there was anything unreasonable in Mr Shorter telling Mr Moore to inform the plaintiff that he was aborting the dive, if Mr Shorter did not know that Mr Moore had hit his head.’
Further the evidence, including GoPro footage, was that Mr Moore swam around to where Mr Barrett was and both indicated that they were ready to proceed with the dive and then they both went underwater. As Adamson J said (at ):
… the plaintiff’s evidence was that he and Mr Moore made their way around to the front of the boat on the surface before descending. Before they commenced their descent they made mutual signs to signify that they were both ready and willing to descend. Whatever reservations Mr Moore may have had about the dive earlier, they were no longer operative at this point as her Honour accepted at  when she found:
“As the above cross-examination shows, it is not in dispute that it was at about this time that Mr Moore turned on his GoPro camera. The fact that he did so is, I consider, indicative of Mr Moore’s intention to continue with the dive, notwithstanding any earlier statements to Mr Shorter to the contrary.”
In other words Mr Shorten denied that he had a conversation with Mr Moore when Mr Moore was in the water. He said that Mr Moore indicated, when he was on the boat, that he was not sure he wanted to continue with the dive, but even so he entered the water, found Mr Barrett and they both indicated that they were ready to proceed and did proceed under water, and this was confirmed by footage recorded on Mr Moore’s GoPro camera.
The good Samaritan argument
The law says that if you allege that you have been injured by someone else’s negligence or lack of care they are liable to make good the damage done. But the injured person has a duty to take care of their own safety too so the court can apportion fault and the plaintiff will receive reduced damages due to their contributory negligence and/or failure to mitigate their own losses ie failure to take steps, like getting medical care, to reduce the damage.
The good Samaritan provisions in NSW (Civil Liability Act 2002 (NSW) s 57) say:
A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.
The trial judge found () that these provisions meant the defences of contributory negligence and/or failure to mitigate risk did not apply to good Samaritans.
I have argued elsewhere that courts are very reluctant to find good Samaritans have contributed to their own injuries (see Death of a good Samaritan (June 17, 2012) and Rescuer did not contribute to his own injury (March 20, 2013)) this is not because of any reliance on the good Samaritan legislation. The trial judge did not address the issue that Mr Barrett was getting paid for his services and as the dive leader had contractual and common law issues to Mr Moore that, in my view, would mean he was not a good Samaritan for the purposes of s 57. This issue was not raised in the Court of Appeal so Adamson J did not address it. Gleeson and Basten JJ delivered a separate judgement where they agreed with the analysis and conclusions of Adamson J but they chose to add some comment on this claim about the application of the good Samaritan provisions. They said (at ):
There was also some confusion in the Court below as to the operation of the so-called “good samaritan” provisions in Pt 8 of the Civil Liability Act. Section 57 provides immunity from civil liability for one who “comes to the assistance of a person who is apparently injured or at risk of being injured.” The reference to “good samaritan” appeared in a somewhat inarticulate paragraph in the statement of claim alleging a particular of breach of duty in so far as the defendant advised Mr Moore to dive down to alert the plaintiff of his, Mr Moore’s, difficulties, thus placing him at risk of injury “for which events the plaintiff would be bound to act as a good Samaritan and/or otherwise come to his aid”. The trial judge noted submissions that the plaintiff “may have been a good Samaritan in getting [Mr] Moore out of the water and on board the vessel following the dive” but that “the plaintiff ceased to be a good Samaritan thereafter”. These submissions should have been dismissed as incoherent. Nobody had sued the plaintiff; it is a defendant who obtains immunity from liability for acting as a “good samaritan”. So far as the plaintiff was concerned, the provisions in Pt 8 of the Civil Liability Act were simply irrelevant.
So how did it go so wrong?
Adamson J was very critical of the way counsel for plaintiff ran the case, the way the witnesses were treated and for the judge’s conclusions both on fact and law. I won’t go through those issues in detail as they are not of direct relevance to readers of this blog but I will quote - where Adamson J said:
Mr Cavanagh [Counsel for the defendant/appellant] postulated in his submissions that the trial judge:
“seemed to have a view this was some sort of heroic action of the plaintiff in rescuing Mr Moore, he was a good Samaritan and that in some way rendered him more believable than anyone else in the case.”
I am persuaded by Mr Cavanagh’s submissions that the trial judge in the present case misused her advantage and, in doing so, deprived both Ms Challen and Mr Shorter of a fair opportunity of giving their evidence. Whether her Honour did so for the reason postulated by Mr Cavanagh need not be determined. It is sufficient to say that tribunals of fact, whether judges or juries, are to decide cases on the evidence and act impartially and dispassionately. They must not let sympathy or emotion affect their judgment.
The result was that the appeal was upheld and the Court of Appeal delivered a verdict in favour of Lets Go Adventures Pty Ltd.
The point is not just to tell a story but to draw lessons for readers of this blog.
First I have said that there are no reported cases of people being sued for rendering first aid. This too is not a case where an allegation of negligent first aid was made, but an allegation of negligent failure to render first aid. From a first aiders point of view the relevant finding was the comment by Adamson J that to require the first aider (in this case Mr Shorten) to insist that Mr Barrett hand over his dive computer and insist that he take oxygen therapy would be to raise the standard of care expected above reasonable care. As Adamson J noted the plaintiff was an experienced diver and an adult. Apart from the fact that Mr Shorten had no authority or power to demand either the dive computer or that Mr Barrett submit to treatment (issues that were not raised in the trial) demanding that a first aider ‘countermand the plaintiff’s own assessment’ of what was required was too ask too much – consider too that it was Mr Barrett who knew better than Mr Shorten the circumstances of the dive and the risks involved in the ascent.
That is not to say that first aiders could or shouldn’t be insistent when they know better eg when they can see that a patient has serious injuries which the patient wants to discount, but all the circumstances have to be taken into account. One can imagine however, coming to help at a car accident and finding that one of the drivers is an experienced emergency physician with no obvious injuries who says ‘I’m alright, you treat that person over there whilst I look after this one’. It would be hard to say to a volunteer first aider ‘your job was to insist that the doctor stop providing care and submit to your care’ (at least where the doctor is not showing any symptoms. It may be different if the doctor appeared traumatised and not capable of acting).
This is also the first case that I’m aware of where there have been allegations of negligence for failing to have the right equipment. There was however no definitive legal ruling on that issue as the court found that it was not proved that they did not have the equipment. It was not produced because it wasn’t asked for and wasn’t required, but it doesn’t mean it wasn’t there.
The claim that the good Samaritan provisions meant that the defendant could not claim contributory negligence or failure to mitigate damages was described as incoherent and irrelevant.
This is the first case where issues of first aid and the good Samaritan provisions have been raised. The fact that all the claims were lost were because of lack of evidence and contradictory evidence. The result is that the case sets little in the way of precedent. For first aiders, if there is a message it is:
- You are not required to countermand the assessment of an experienced adult (in this case the person with the most expertise about decompression illness on the boat) who says ‘I’m OK’ and who has no symptoms to suggest otherwise; and
- The good Samaritan provisions are a defence for a person who comes to someone’s aid and is sued. If it is the good Samaritan doing the suing, they are irrelevant.