Payne T/AS Sussex Inlet Pontoons V Liccardy [2023] NSWCA 73 

In the matter of Payne T/AS Sussex Inlet Pontoons V Liccardy [2023] NSWCA 73, the plaintiff, Adam Liccardy, was one person in a group of passengers who had hired a pontoon boat from the First Defendant, Daniel Payne trading as Sussex Inlet Pontoons. The First Defendant engaged the Second Defendant, Derek Wayne Allred, to act as the skipper/driver of the boat. Whilst on the pontoon boat, a passengers’ hat blew into the water. The plaintiff dove into the water while the boat was moving to get the hat. Prior to this, the plaintiff had consumed four cans of full strength beer, partly consumed a fifth, and had consumed two lines of cocaine. It was submitted to the Court that the plaintiff’s blood alcohol content was at least 0.05, if not 0.11, and he would have been experiencing increased confidence and decreased inhibition due to the consumption of cocaine. After the plaintiff jumped into the water, the driver of the pontoon boat circled the boat back towards the plaintiff, meaning that the plaintiff had to swim near the stern to access the ladder in order to get back onto the pontoon boat. Upon doing so, the plaintiff suffered severe lacerations to his leg from the propellor.  

The plaintiff commenced proceedings against both the defendants, alleging that the First Defendant was responsible for the Second Defendant’s negligence handling of the boat.  

At the first instance, the primary judge in the District Court found the plaintiff to be successful and awarded the plaintiff damages in the amount of $464,733.25 with no reduction for contributory negligence.  

The First Defendant, being the owner of the boat, appealed the District Court’s decision with regard to: 

  • whether the plaintiff’s ability to exercise reasonable care was impaired within the meaning of section 50(1) of the Civil Liability Act 2002 (NSW); 

 

  • whether the injuries were likely to have occurred if the plaintiff had not been intoxicated; 

 

  • whether the plaintiff’s intoxication contributed in any way to the cause of his injuries; and 

 

  • whether the plaintiff’s damages should be reduced on account of contributory negligence by more than 25%. 

Ultimately, the Court of Appeal partly allowed the Appeal, finding that: 

  • the primary judge erred in finding that the plaintiff’s consumption of alcohol and cocaine had not impaired his decision-making ability. The Court of Appeal noted that the primary judge appeared to have limited their consideration to physical impairment, despite making reference to expert evidence that the plaintiff’s intake of alcohol and cocaine had been influential in his impulsive decision to dive into the water to retrieve the hat; 

 

  • the unchallenged expert evidence was that the plaintiff’s ability to exercise reasonable care and skill was impaired due to his drug and alcohol consumption. This engaged the intoxication provisions in section 50 of the Civil Liability Act 2002 (NSW); 

 

  • section 50(2) of the Civil Liability Act 2002 (NSW) provides that damages are not payable unless the Court is satisfied that the injury is likely to have occurred even if the plaintiff had not been intoxicated. The Court of Appeal was satisfied that even if a person in the position of the plaintiff was not intoxicated, they would have still swum near the propeller due to the lack of turbulence and loud music masking the engine noise; 

 

  • the Court of Appeal was satisfied that section 50(2) of the Civil Liability Act 2002 (NSW) applied and that the plaintiff would have suffered his injury even if he had not been intoxicated; 

 

  • as section 50(2) of the Civil Liability Act 2002 (NSW) applied, the Court of Appeal then considered the operation of section 50(3) of the Civil Liability Act 2002 (NSW). Section 50(3) provides that if the injury is likely to have occurred even if the plaintiff had not been intoxicated, it is presumed the plaintiff was contributorily negligent, unless the Court of Appeal is satisfied that the plaintiff’s intoxication did not contribute in any way to the cause of action the injury; 

 

  • as the plaintiff was unable to satisfy the Court that his intoxication did not contribute to the cause of his injuries, section 50(4) of the Civil Liability Act 2002 (NSW) provided that his damages were to be reduced by 25% or a greater percentage to be determined by the Court; and 

 

  • by majority, the Court found that the plaintiff’s actions in being intoxicated and swimming too close to the engine and his belief that the engine was off, a reduction of 30% was appropriate. 

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