The New South Wales Court of Appeal has allowed an appeal by Mr Payne (trading as Sussex Inlet Pontoons) in relation to the primary judge's application of section 50 of the Civil Liability Act 2002 (NSW) (CLA) and the first respondent's (Mr Liccardy) entitlement to damages. This article is a case summary of Payne trading as Sussex Inlet Pontoons v Liccardy [2023] NSWCA 73.
Section 50 of the CLA provides a minimum standard of protection for defendants in cases involving intoxication where that intoxication has contributed to the injuries that were sustained.
The first respondent (Mr Liccardy) successfully sued Mr Payne, and the second respondent (Mr Allred) in negligence for damages arising from a leg injury that resulted while reboarding a pontoon-style boat in which he and a group of friends were passengers.
The boat was hired from Mr Payne, and Mr Payne engaged Mr Allred to act as the skipper of the boat.
A hat belonging to one of the passengers was blown into the water and Mr Liccardy dived into the water while the boat was moving to collect the hat.
Before the accident, Mr Liccardy had consumed four cans of full-strength beer, had partly consumed a fifth and had also consumed two lines of cocaine. The Court heard expert evidence that Mr Liccardy's blood alcohol content was at least 0.05 and that he would have been experiencing increased confidence and decreased inhibition due to the use of cocaine.
Mr Allred circled the boat back towards Mr Liccardy after he dived off the boat and this required Mr Liccardy to swim near the stern to access the ladder to get back on.
Mr Liccardy sustained severe lacerations to his leg from the propellor while he was swimming toward the ladder. Mr Liccardy commenced proceedings against Mr Payne and Mr Allred, alleging that Mr Payne was responsible for Mr Allred's negligent use of the boat.
In the first instance Mr Liccardy was successful in the District Court and was awarded damages in the amount of $464,773.25, with no reduction for contributory negligence.
Mr Payne (who owned the boat) appealed the primary decision with regard to:
i. whether Mr Liccardy's ability to exercise reasonable care was impaired within the meaning of s50(1) of the CLA;
ii. whether the injuries were likely to have occurred if he had not been intoxicated;
iii. whether Mr Liccardy's intoxication contributed in any way to the cause of his injuries; and
iv. whether Mr Liccardy's damages should be reduced on account of contributory negligence by more than 25% (the mandatory discount).
The Court of Appeal part allowed the appeal and found that:
i. the primary judge erred in finding that Mr Liccardy's consumption of alcohol and cocaine had not impaired his decision-making ability;
ii. expert evidence was that Mr Liccardy's ability to exercise reasonable care and skill was impaired due to his drug and alcohol consumption. This engaged section 50 of the CLA;
iii. section 50(2) of the CLA provides that damages are not payable unless the Court is satisfied that the injury is likely to have occurred even if a claimant had not been intoxicated. The Court of Appeal was satisfied that even if a person in the position of Mr Liccardy was not intoxicated, they would have still swum near the propeller;
iv. section 50(2) applied and Mr Liccardy would have suffered his injury even if he had not been intoxicated;
v. as section 50(2) applied, the Court considered the operation of section 50(3). Section 50(3) provides that if the injury is likely to have occurred even if a claimant had not been intoxicated, it is presumed a claimant was contributorily negligent unless the Court is satisfied that a claimant's intoxication did not contribute in any way to the cause of the injury;
vi. Because Mr Liccardy could not satisfy the Court that his intoxication did not contribute to the cause of his injuries, section 50(4) provided that his damages were to be reduced by 25% or a greater percentage determined by the Court. By majority, the Court found that Mr Liccardy's actions in being intoxicated and swimming too close to the engine, a 30% reduction was appropriate.
The decision reiterates that section 50 of the CLA does not apply in all circumstances where a person may be intoxicated at the time they are injured. A person can be intoxicated and not have contributed to their injury. It is a reminder that the consumption of alcohol and subsequent intoxication by a claimant does not absolve a defendant from liability.
Even when intoxication can be established, a claimant may still be able to recover damages if the Court finds that the injury is likely to have occurred even if they had not been intoxicated.
You can read the full judgment here.
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