(7) He inappropriately selected reverse gear whilst the plaintiff was in the hazard
zone and in close proximity to the propeller with the result that the turning of the
propeller was not readily apparent to the plaintiff at that time.
58. Mr Ellison was asked to consider whether, if a person in the position of the plaintiff had
come into contact with a standard propeller when the motor was in neutral, an injury
would have resulted. Mr Ellison was of the opinion that as the propeller was relatively
blunt, and can spin freely (such as by the force of a current), a minor injury may have
resulted in such circumstances.
59. However, in this case, Mr Ellison considered that given the plaintiff received two deep
lacerations on his leg in close proximity, approximately 20mm apart, it was more likely
that the engine was running and engaged in gear, with the propeller spinning at speed.
He was of the opinion the plaintiff’s injuries were caused by a spinning propeller under
power. That view was consistent with the medical assessment of Dr Vote, the first
defendant’s orthopaedic expert, which I will refer at a later point in these reasons.
60. In that regard, Mr Ellison concluded that the plaintiff’s injury occurred when the engine
was in reverse gear as the second defendant was trying to stop the forward momentum
of the vessel. He came to that view because the video evidence shows that at the time the
plaintiff was swimming towards the vessel and into the hazard zone behind the motor,
the vessel was still moving forward.
61. Mr Ellison also considered that the speed of the vessel was unsafe at that time. He said
there was no visual evidence of turbulence in the water. Significantly, this indicated to
him that the engine was operating in reverse gear, and that all turbulence from the
spinning propeller was not visible because it was directed forward and under the hull of
the vessel. He was plainly using his experience and expertise in interpreting the
contemporaneous video evidence. His opinion was not challenged.
62. On that basis, I find it more probable than not, that at the time, in the circumstances
that prevailed, the plaintiff would have been misled into believing that the propeller was
disengaged, and was not operating under motive power when he entered the hazard
zone.
63. In his report, Mr Ellison identified the general proposition that a safe speed would have
been one at which the vessel could be stopped in time to avoid any danger that arises. To
enable the vessel to stop in that manner, the master must keep a proper lookout, and in
this case, the second defendant would not have been in a position to do so because of his
decision to turn the vessel to port and not to starboard.
64. Mr Ellison identified the correct technique for manoeuvring the vessel for retrieving the
plaintiff. This involved maintaining a line of sight to the plaintiff in the water, keeping
him on the starboard side, keeping the vessel facing into the wind and the current at all
times, and on approach to the plaintiff, placing the engine into reverse to stop the
forward momentum, and then bringing the vessel to a complete stop with the propeller
turned off to allow safe re-boarding without the need for the plaintiff to enter the hazard
zone in order to access the ladder. He concluded that in the circumstances of this case,
contrary to those requirements, the plaintiff was avoidably placed in a dangerous
situation in having to swim past the operating propeller whilst the engine was running.
65. In my view, the video sequence of the event, as seen in Exhibit “B”, provided ample
evidence to support and justify the opinions summarised above. There was no evidence
or convincing argument that contradicted Mr Ellison’s conclusions.
Report of Dr Michael Robertson – pharmacologist
66. For his defence, Mr Payne relied upon an expert forensic toxicology and pharmacology
opinion of Dr Michael Robertson. The opinion was dated 7 March 2022: Exhibit D1, Tab
11, pp 416 – 443. Dr Robertson annexed his CV (pp 428 – 435) and the several letters of
instruction that had been provided to him for the purpose of preparing his report (pp
436 – 443). There was no issue as to his qualifications, experience, or professional
expertise.
67. In essence, Dr Robertson was of the opinion that at the time of the accident, the plaintiff
had a blood alcohol concentration of at least 0.05 if not 0.11 depending on the strength
of the beer he had consumed. He concluded from those estimates that it was more likely
than not the plaintiff was impaired by the effects of his prior alcohol consumption in
combination with his use of cocaine. He expressed the general opinion that it was likely
the plaintiff was experiencing mild euphoria, sociability, increased self-confidence, with