Intoxicated Plaintiff Liability: Legal Impact on People & Businesses

DATE PUBLISHED: May 15, 2023

key takeaways

The ruling confirms that section 50 of the Civil Liability Act 2002 (NSW) only provides a minimum standard of protection for defendants against intoxicated plaintiffs;
An intoxicated plaintiff will not absolve a defendant of their duty of care.

setting the scene

It’s a sunny Saturday afternoon in January, and a group of ten young men board a party pontoon headed to the waters of Sussex Inlet, New South Wales. With drinks, music, and friends it’s the ultimate ‘booze cruise’. Suddenly, an unforeseen gust of wind blows a passenger’s hat overboard and just like that, the first respondent Mr Adam Liccardy, dives in after it in a heroic attempt at retrieval. However, Mr Liccardy’s courage is fueled by four and a half full-strength beers and two lines of cocaine.

In the meantime, the second respondent Mr Derek Allred, who was hired as the boat master by the appellant and the owner of the vessel, Mr Daniel Payne (t/as Sussex Inlet Pontoons) manouevres the boat back towards Mr Liccardy. While re-boarding the boat using a ladder at the rear, Mr Liccardy’s left leg is struck by the rotating propeller, causing two significant lacerations.

The Decision at First Instance

Mr Liccardy subsequently sues Mr Payne and Mr Allred in negligence as a result of his injuries and is awarded $464,773.25 in damages at first instance in the NSW District Court on the basis that:

1
Mr Payne and Mr Allred owed Mr Liccardy a duty of care as there was a risk that “if a person in the water came into contact with the moving propeller of a motorised vessel, injury from the propeller might occur.”
2
Mr Allred’s failure to “appropriately position…the vessel…and then turn off the engine to de-activate the propeller” breached that duty;
3
Mr Liccardy’s intoxication did not contribute to his injury as it was Mr Allred’s actions that would have caused the accident regardless of whether Mr Liccardy was intoxicated or not.

Issues on Appeal

On appeal, the Supreme Court of New South Wales overturned the finding of the trial judge that Mr Liccardy’s capacity to exercise reasonable care and skill was not impaired but agreed that it was more probable than not that his injuries would have occurred regardless. The key issue then became whether Mr Liccardy’s damages should be reduced by an amount greater than the mandatory discount of 25% pursuant to 50 of the Civil Liability Act 2002 (NSW).1 The Court of Appeal resolved that a discount of 30% was appropriate as Mr Liccardy had given evidence that he thought the engine was off and that was the only way he was able to access the boat given how Mr Allred had maneuvered it.

Section 50 purports to provide a minimum standard of protection for defendants in cases involving intoxication where that intoxication has contributed to the injuries sustained.

However, it is still paramount to note that the section does not simply apply in any and all circumstances where a person is intoxicated at the time they are injured. It is important to note that:

Intoxication is not inherently an element of contributory negligence – that is, a person can still be intoxicated at the time they were injured and that not have contributed to their injury; and
A defendant must show that there was a relevant causal link between the plaintiff’s alleged contributory negligence and the injuries suffered- here, the Court of Appeal said that was Mr Liccardy’s impaired judgment in not swimming away from the rear of the boat in light of the proximity of the motor to the ladder and that a reasonable person that was not intoxicated in his same position would have done just that.

For example, had the plaintiff in this case injured himself as a result of a near-drowning event after he jumped off the boat, then it would likely have been accepted that it was foreseeable that the act of swimming while intoxicated contributed to his injury and a heftier discount than the 25% minimum applied (if he was successful at all in those circumstances).

conclusion

There is a common misconception that a defendant will be absolved from responsibility just because a plaintiff was intoxicated at the time they were injured. This decision serves as another reminder that is not the case.

This case also illustrates that these kind of liability risks are not just confined to ‘booze cruises’ and motor vehicle accidents. Anyone from homeowners/occupiers to large hospitality groups and employers can be in the firing line when it comes to the acts of an intoxicated plaintiff.

For some businesses, intoxicated customers are par for the course and in a country that is regarded in popular culture for ‘enjoying a drink’, removing or reducing alcohol consumption is either uneconomical, impractical or some might say, sacrilege. Although the mandatory discounts for intoxication can help confine a judgment amount, as this case goes to show, the best defence is still to ensure that you are exercising reasonable care and putting in place appropriate safeguards, practices and instructions on what you do in response to that risk.

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