Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor [2022] NSWDC 246

Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor [2022] NSWDC 246

The second defendant negligently retrieved the plaintiff by manoeuvring the vessel so that the plaintiff had to swim through the stern hazard zone and by leaving the engine and propeller engaged in reverse as the plaintiff re-boarded. That negligence was a necessary cause of the injury and it was appropriate that liability extend to the harm. The first defendant was vicariously liable because the second defendant was acting as the first defendant's employee or agent in the course of the first defendant's pontoon charter business. The pleaded defences of volenti, obvious risk, dangerous recreational activity, intoxication and contributory negligence were not made out. The Australian...

Jurisdiction
Australia
Judgment Date
05 July 2022
Procedural Posture
Personal Injury Damages Proceedings Claiming Negligent Navigation Arising Out of a Marine Accident / Principal Judgment After Hearing
Outcome
The plaintiff succeeded against both defendants and was awarded compensatory damages under the Civil Liability Act 2002 (NSW) in the sum of $464,773.25. The Australian Consumer Law claim failed.
Legal Topics
['marine Accident' 'propeller Injury' 'duty of Care' 'breach of Duty' 'causation' 'voluntary Assumption of Risk' 'obvious Risk' 'dangerous Recreational Activity' 'intoxication' 'contributory Negligence' 'statutory Consumer Guarantees' 'assessment of Damages']
['torts' 'negligence' 'personal Injury' 'civil Liability' 'vicarious Liability' 'australian Consumer Law' 'damages'] ['marine Accident' 'propeller Injury' 'duty of Care' 'breach of Duty' 'causation' 'voluntary Assumption of Risk' 'obvious Risk' 'dangerous Recreational Activity' 'intoxication' 'contributory Negligence' 'statutory Consumer Guarantees' 'assessment of Damages']

Case Brief

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Procedural Posture

Personal Injury Damages Proceedings Claiming Negligent Navigation Arising Out of a Marine Accident / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether disputed facts established that the vessel's engine was running and propeller engaged when the plaintiff was injured while re-boarding." 'Whether the second defendant was an employee or agent of the first defendant so as to make the first defendant vicariously liable.' "What was the relevant risk of harm and the scope and content of the defendants' duty of care." 'Whether the second defendant breached the duty of care under s 5B of the Civil Liability Act 2002 (NSW).' "Whether the defendants' negligence caused the plaintiff's injuries under s 5D of the Civil Liability Act 2002 (NSW)." 'Whether the plaintiff voluntarily assumed the risk of injury.' 'Whether the plaintiff was contributorily negligent.' "Whether the plaintiff's injuries resulted from an obvious risk of a dangerous recreational activity." 'Whether intoxication under ss 48 and 50 of the Civil Liability Act 2002 (NSW) defeated or reduced the claim.' 'Whether the plaintiff could rely on statutory guarantees under ss 60 and 67 of the Australian Consumer Law (Cth).' 'How damages should be assessed under the Civil Liability Act 2002 (NSW).']

Ratio Decidendi

The second defendant negligently retrieved the plaintiff by manoeuvring the vessel so that the plaintiff had to swim through the stern hazard zone and by leaving the engine and propeller engaged in reverse as the plaintiff re-boarded. That negligence was a necessary cause of the injury and it was appropriate that liability extend to the harm. The first defendant was vicariously liable because the second defendant was acting as the first defendant's employee or agent in the course of the first defendant's pontoon charter business. The pleaded defences of volenti, obvious risk, dangerous recreational activity, intoxication and contributory negligence were not made out. The Australian...

Court Disposition

The plaintiff succeeded against both defendants and was awarded compensatory damages under the Civil Liability Act 2002 (NSW) in the sum of $464,773.25. The Australian Consumer Law claim failed.

Orders

  • ['Verdict and judgment for the plaintiff in the amount of $464,773.25;' "The defendants are to pay the plaintiff's costs on the ordinary basis unless a party can establish the basis for some other costs order;" 'Liberty to apply for further or other costs orders if required;' 'The exhibits are to be returned to the...