1.    For the purposes of s 50(1), the relevant act of Mr Allred was those acts that effectively required Mr Liccardy to swim in or near the hazard zone and climb the stairs at the stern of the boat. Swimming towards the stern of a boat with a propeller motor to climb a ladder requires the exercise of a reasonable level of judgment about one’s own safety. The unchallenged expert evidence established that Mr Liccardy’s capacity to exercise reasonable care and skill in that context was impaired. It follows that s 50(1) was satisfied and s 50 was engaged: per Beech-Jones JA at [61]−[63]; Brereton JA agreeing at [3]; Basten AJA agreeing at [72].
Jackson v Lithgow City Council [2008] NSWCA 312; [2008] Aust Torts Reports 81−981; State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, considered. Amanda’s On the Edge Pty Ltd v Dires [2011] NSWCA 358, distinguished.
In relation to issues (ii), (iii) and (iv)
2.    Adopting the parties’ assumption that the appropriate test for s 50(2) is an objective balance of probabilities ([53]−[54]), it is more probable than not that Mr Liccardy’s injury would have occurred even if he had not been intoxicated. However, Mr Liccardy did not establish that his intoxication did not contribute in any way to the cause of his injury as someone who was not intoxicated may well have swum further away from the motor. The assessment under s 50(4) is to be undertaken in the context of s 50(2) being satisfied, Mr Liccardy’s actions, his belief the engine was off and the fact it was Mr Allred’s negligent act that required him to approach the ladder from the direction he did. A reduction of damages by 30% is appropriate: per Beech-Jones JA at [66]−[69]; Basten AJA agreeing at [72].
Per Brereton JA
3.    It was not necessary that Mr Liccardy be intoxicated for Mr Allred’s negligence to cause his injuries: the incorrect manoeuvring of the vessel and failure to disengage the propeller were quite enough on their own to cause the accident, even if he was sober. It is not necessary, for the purposes of satisfying s 50(2), to prove that it be more probable than not that the accident would have occurred regardless of the plaintiff’s intoxication: [5]−[6].
State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225, applied.
4.    The award of damages should not be reduced by more than the mandatory 25%. It is significant that the starting point is that it is likely that the accident would have occurred in any event; and that the contributory negligence is deemed rather than proved. While it is not established that Mr Liccardy’s intoxication made no contribution, it is also not established that it made any material contribution: [7].
Per Basten AJA
5.    The preferable construction of s 50(2) starts with the finding of liability and asks whether that negligence was likely to have caused the injury even if the plaintiff had not been intoxicated. A standard of likelihood which engages a balancing of probabilities should not be adopted. It does not follow that some alternative meaning of “likely” must be identified: [83]−[87].
Wells v Council of the City of Orange (No 2) [2017] NSWSC 510, disapproved; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331; [1979] FCA 85, considered.

 In deciding whether the precaution of removing the bollard should have been taken, the trial judge relied on a statement in a safety audit report that one bollard “is unlikely to slow cyclists” and rejected the evidence of the Council’s engineer that the bollard was not removed because it would tend to slow down cyclists: [40], [42], [46]. Whereas two bollards may have a greater deterrent effect on cyclists, it does not follow that one bollard will have no significant effect on cyclists. If one bollard is a hazard, it must also be an obstacle which may deter speeding cyclists: [53].

​Even on the assumption that two bollards had social utility, but one bollard did not, it did not follow that one bollard constituted an unreasonable “hazard” and required removal in the exercise of taking reasonable care for the safety of cyclists using the pathway. The plaintiff did not establish that the Council had failed to take reasonable care for her safety in failing to remove the bollard at some point between 2016 when the first bollard was removed, and the accident in 2020: [56]-[57].

Costs ordered against a submitting defendant:: Pinarbasi v AAI Ltd t/as GIO (No 2) [2023] NSWSC 255

https://www.caselaw.nsw.gov.au/decision/184641fa7917818162c66b7cwww.caselaw.nsw.gov.au/decision/184641fa7917818162c66b7c

​74. Seventh, whilst I accept that the bifurcation between solicitor and barrister in New South Wales has reduced, and is reducing, markedly, the structure whereby Mr Quinlivan rendered a separate memorandum of fees to CMC, whilst in fact employed by it, must be assessed as unorthodox. And his role as an “in-house barrister” who was charging for advocacy services, when in the event he did not and could not appear in the District Court, inevitably gives rise to a concern about the opacity of any duplication of functions. And that concerning potential for overlap applies not only between his work and other solicitors within CMC, but also between his work and the work done in any event by counsel who ultimately appeared on the hearing.
75. Eighth, a request of any person to any other person that they backdate any document is troubling. A request made by a solicitor and former barrister to their client to that effect is very troubling. And such a request made in circumstances where the backdating at the least has the potential to be financially disadvantageous to the client is very troubling indeed (as to which, see the evidence of Mr Quinlivan at HT 137.15 ff). I respectfully reject the submission that what occurred here is a distraction; on the contrary, it plays an important role in my concerns about the matter.
​76. Ninth, the document prepared by CMC and suggestive on its face that “$Nil” of the advocacy services costs of Mr Quinlivan would be able to be recovered from HHT is also troubling. Mr Quinlivan could not provide any explanation of it (see HT 135.14 ff). As for the explanation on oath of Mr Moran, principal of CMC (see HT 118.06 ff), that perhaps one could read it whereby in fact the separation of sums in the rows in the first column in truth is not to be maintained in the second column, and some of the amounts sought to be recoverable from HHT could include a sum referable to the advocacy costs of Mr Quinlivan, I found it to be, with respect, intrinsically internally inconsistent and contrary to the plain meaning of the document. That is also troubling.

31. In principle, the construction of a term of a lease will involve a question of law. Often there is difficulty in determining whether what is said to constitute an error is an error as to (i) the-fact finding, (ii) the statement of legal principle, or (iii) the application of the legal principle to the facts as found. As stated by Mason J in Hope v Bathurst City Council: [25]
“Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.”

32 On the other hand, Mason J recognised in the same passage that, where the critical term is a word bearing its ordinary meaning and the court not unreasonably finds the term is satisfied, the finding is one of fact. 

Fasako Pty Ltd v TianyD Beauty & Hairdressing Australia Pty Ltd [2022] NSWCA 112