Intoxication and propellers

At around 2:30pm on 25 January 2020, a hat belonging to one of the members of the group was “unexpectedly blown into the water by strong winds”. Mr Liccardy dived into the water while the boat was moving to retrieve it. Mr Allred manoeuvred the boat and circled back to Mr Liccardy in such a way that to board the boat via the ladder at the stern, Mr Liccardy had to swim across the body of water adjacent to the stern where the propeller was located. As Mr Liccardy did so, he felt two knocks to his left leg caused by the rotating propellor and subsequently realised that he suffered two lacerations about 20mm apart. The primary judge found that by the time Mr Liccardy jumped in the water he had consumed 4 cans of full-strength beer, partly consumed a fifth can and consumed two lines of cocaine. The primary judge rejected the appellant’s reliance on s 50(1) of the Civil Liability Act 2002 (NSW) (the CL Act). The primary judge was not satisfied that Mr Liccardy was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired within the meaning of s 50(1) of the CL Act.

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.

Payne trading as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73

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