The NSW Court of Appeal has upheld an appeal and in a majority decision ordered 30% reduction in the amount awarded in damages to a plaintiff for an injury he sustained while intoxicated on boarding a vessel hired for a social outing.

The appeal was from a decision by NSW Distrrict Court Judge Leonard Levy SC (Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor [2022], NSWDC 246, 05/07/2022) in favour of Adam Liccardy for damages arising from a serious leg injury he sustained while boarding a pontoon-style vessel he and a group of friends had hired for a social outing at Sussex Inlet.

The accident occurred on January 25, 2020, when Liccardy dived into the water to retrieve a hat belonging to one of the group, which was blown into the sea.

Liccardy sued Daniel Payne (trading as Sussex Inlet Pontoons) and second respondent, Derek Wayne Allred, hired as master of the vessel, for negligence.

The primary judge found Allred had wrongly manouvered the vessel and failed to stop the motor, requiring Liccardy to swim in the hazard zone of the propeller, while the motor was still running, causing him to sustain serous left lower leg and knee injuries from the propeller, when he re-boarded the vessel.

The unchallenged expert evidence established Liccardy’s capacity to exercise reasonable care and skill in that context had been impaired.

Even though Judge Levy found that, by the time Liccardy jumped in the water, he had consumed four to five cans of full-strength beer and two lines of cocaine, he concluded Payne was vicariously liable for any of Allred’s “acts, neglects and defaults” that led to Liccardy’s injury.

Payne appealed the decision on the grounds the primary judge had erred in failing to find Liccardy had been guilty of contributory negligence; and in rejecting Payne’s defence in relation to intoxication under s50 of the Civil Liability Act (CL Act), which limits the ability of intoxicated persons to recover damages.

Appeal Court Justice Robert Beech-Jones, with Appeal Court Justice Paul Brereton and Acting Appeal Court Justice John Basten agreeing, found the primary judge had erred in limiting his analysis to simply considering Liccardy’s physical capacity to swim rather than his judgement when deciding it was more probable than not Liccardy’s injury would have occurred even if he had not been intoxicated under s50(2) of the CL Act.

They agreed that, while s50(2) had been satisfied, those of s50(3) of the CL Act had not as the court was not satisfied Liccardy’s intoxication had not contributed in any way to cause the injury, with the consequence there must be a mandatory deduction for contributory negligence of at least 25% under s50(4) of the CL Act.

It was decided an assessment of contributory negligence under s50(4) was to be undertaken. While Justices Beech-Jones and Basten found a reduction of damages by 30% was appropriate, Justice Brereton reached his conclusion by “a slightly different path”, finding the damages awarded should not be reduced by more than the mandatory 25%.

He said it was likely the accident would have occurred in any event but while it had not been proven Liccardy’s intoxication made no contribution, it was also not proven it had made any material contribution.

Justice Beach-Jones proposed, Justices Basten and Brereton agreeing, that on or before May 5, each party file and serve agreed orders, or failing agreement, competing draft orders and submissions in support, including as to costs. (Payne trading as Sussex Inlet Pontoons v Liccardy, [2023], NSWCA 73, 20/04/2023).