Propel to be sued

29 July 2022

The Plaintiff sustained injuries when a propeller came into contact with his left leg while he was re-boarding a motorised marine vessel (having dived into the water to retrieve another passenger’s Akubra).

In issue

  • Essential issues before the Court were whether a relevant relationship of employment or agency and vicarious liability existed between the first defendant and second defendant, whether the plaintiff voluntarily assumed the risk of injury, and whether the plaintiff was contributorily negligent for his actions on the basis that he had been consuming alcohol and cocaine prior to the incident.

The background

On 25 January 2020, the plaintiff was a passenger on a vessel, which was owned by the first defendant and being captained on the day by the second defendant.

Due to the last minute and sporadic nature of the engagement of the second defendant to captain the vessel on that day, the first defendant denied that it was the legal employer of the second defendant.

As the afternoon progressed, the plaintiff consumed more than four cans of beer as well as two lines of cocaine. The plaintiff consumed the second line of cocaine approximately 30 to 40 minutes before the incident. Shortly thereafter the plaintiff witnessed a hat, belonging to another of the guests on board, fall into the water at which time the plaintiff dived in to retrieve it.

Having witnessed the plaintiff dive into the water, the second defendant manoeuvred the vessel to the port side before circling back to the allow the plaintiff to re-board. It was not disputed that the correct safety manoeuvre would have been to turn the vessel to the starboard side and then circle back, whilst at all times keeping the plaintiff in the captain’s line of site (the Correct Manoeuvre).

On re-boarding the vessel, the plaintiff came into contact with the propeller and suffered severe lacerations to his left leg. The plaintiff required which surgery and spent 3 days in hospital. He also suffered psychological harm.

The decision at trial

Ultimately, the Court found that the first defendant was vicariously liable for the acts, neglects and defaults on the part of the second defendant in connection with his use of the vessel.

Interestingly, the Court found that the plaintiff’s consumption of alcohol and cocaine did not amount to a relevant cause or nexus between any alleged contributory negligence of the plaintiff and injuries he suffered. The Court noted that contributory negligence may have been a relevant consideration if, for example, the plaintiff was injured by coming into contact with a submerged object when he dove into the water (because it was clear the plaintiff’s consumption of alcohol (and possibly cocaine) was influential in his decision to enter the water). However, in this case the source of the plaintiff’s injury was the decisions and actions of the second defendant.

Additionally, the plaintiff was not considered to have voluntarily assumed any risk given that the conduct of the second defendant offered the impression that the propeller was disengaged. The defence of volenti non fit injuria failed because there was no visible indication of propeller turbulence in the water to suggest otherwise to the plaintiff. He had no actual knowledge or indication that he was in what was considered to be a hazard zone.

The Court held that the plaintiff’s injuries were caused by the conduct of the second defendant, who was in a position to make a material difference to the outcome if he had acted with due skill and care in his responses to the plaintiff’s presence in the water (that is, the second defendant should have performed the Correct Manoeuvre).

The second defendant was found to be responsible for the plaintiff’s injuries (although the first defendant was found to be vicariously liable).

The plaintiff was awarded damages in the sum of $464,773.25.

Implications for you

This case emphasis the expectation required of a qualified and experienced person to undertake common-sense precautionary tasks that are not unduly onerous to implement, given the probability of harm and the magnitude of the range of risks of injury that could have foreseeably arisen.

Updated 4 May: On 20 April 2023, the NSW Court of Appeal allowed an appeal by the respondent boat hirer, agreeing that the primary judge erred in not finding that the injured respondent was intoxicated to the extent that his capacity was impaired within the meaning of s 5O of the CLA (NSW). Although the Court of Appeal was also satisfied that injury would have occurred even if the respondent was not intoxicated, since the respondent did not establish that his intoxication was not a contributing factor, the court was required to presume the respondent was contributorily negligent. The Court of Appeal re-assessed contributory negligence and increased it from 25% to 30 %.

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

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