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(1) This Part applies to civil liability of any kind for personal injury damages (as defined in Part 2) or damage to property.
(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.
A reference in this Part to a person being “intoxicated” is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).
(1) The following principles apply in connection with the effect that a person’s intoxication has on the duty and standard of care that the person is owed:
(a) in determining whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated,
(b) a person is not owed a duty of care merely because the person is intoxicated,
(c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.
(2) This section applies in place of a provision of section 74 of the Motor Accidents Act 1988 or section 138 of the Motor Accidents Compensation Act 1999 to the extent of any inconsistency between this section and the provision.
The respondent was injured when she drunkenly stepped in front of the appellant’s motor vehicle. On appeal, consideration of s 49 was relevant to the determination of the applicable standard of care.
Section 49(1)(c) of the Act means that the fact that it crossed the mind of a person that another person might be intoxicated does not of itself increase or otherwise affect the standard of care owed to the intoxicated person. In this case, the required standard of care was that engendered by observing a pedestrian progress down a hill in a “stumbling” fashion, come to a halt on a pedestrian ramp at the side of the road and apparently fix her eyes on the approaching vehicle in the manner of someone waiting for it to pass.
[33]-[34]
NSW Court of Appeal cases cited in discussion:
Vale v Eggins [2006] NSWCA 348
(1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.
(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.
(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.
(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case.
(5) This section does not apply in a case where the court is satisfied that the intoxication was not self- induced.
Mr Liccardy was on a “pontoon” style boat with friends. He dived into the water while the boat was moving to retrieve a hat dropped by one of the friends. When climbing back into the boat, he suffered a leg injury. The boat was hired from the appellant, Daniel Payne (trading as Sussex Inlet Pontoons), who engaged the second respondent to be master of the boat. Mr Liccardy successfully sued the appellant and second respondent in negligence for damages. The primary judge found that by the time Mr Liccardy jumped into the water he had consumed several cans of beer and two lines of cocaine. The Court of Appeal granted leave to appeal but dismissed the appeal.
On s 50:
In recognition of the fact that intoxication increases the risk of accidental injury, and with the intent that persons should themselves bear the consequences of their self-induced intoxication, the legislature enacted Pt 6, and in particular s 50 of the Civil Liability Act, to limited the ability of intoxicated persons to recover damages: [1].
If the alleged wrongdoer satisfies s 50(1), the party seeking damages must demonstrate that the death, injury or damage is likely to have occurred even if they had not been intoxicated (s 50(2)). If that onus is discharged, it is presumed that the relevant person was contributorily negligent unless the party seeking damages also demonstrates that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage (s 50(3)): [44].
In this case, s 50(1) was satisfied and s 50 engaged: [61]-[63]. Mr Liccardy’s capacity to exercise reasonable care and skill, and in particular judgment, in the context of his being in the water approaching a motor vessel to re- embark from the water, was impaired due to his drug and alcohol consumption. Thus s 50(1) of the Civil Liability Act was satisfied such that s 50 was engaged: [63].
For the purposes of s 50(2), Mr Liccardy’s intoxication was not necessary for the defendant’s negligence to have caused his injuries. The incorrect manoeuvring of the boat and failure to disengage the propeller before allowing Mr Liccardy to reembark were enough on their own to cause the accident, even if he was sober: [5].
Proof that it be more probable than not that the accident would have occurred regardless of the plaintiff’s intoxication is not required because such a construction would leave only very slight scope for the operation of s 50(4) and because notions of balance of probability applies to the proof of facts not to consideration of whether an alternative hypothesis was likely to occur: [6], [53], [84]- [87]. However, it cannot be said that his level of intoxication did not contribute to the cause of his injury in any way. Thus, s 50(2) was satisfied but not s 50(3): [66]-[68]. Consequently, there must be a mandatory deduction for contributory negligence of at least 25%: [3].
In December 2011, Mr Ouhammi was arrested by police while urinating in a public place in Sydney’s east. He was heavily intoxicated. He was taken to Waverley Police Station and placed in a holding cell. The cell had a heavy perspex door that opened outwards. When shut, a sliding bolt secured the door. There was a small bench in the cell attached to the wall opposite the door, about one step away from the door. Mr Ouhammi was lying on the bench, facing the wall. An officer opened the door slightly and called to him. Within a few seconds, Mr Ouhammi rolled over and took a step towards the door. The officer quickly closed the door. Mr Ouhammi’s thumb was caught in the door, was partially severed and, eventually, partially amputated. Mr Ouhammi commenced personal injury proceedings in the District Court, suing the State of New South Wales as vicariously liable for the officer’s conduct. The primary judge found for Mr Ouhammi on the basis of negligent battery, and awarded damages of $82,000. The State sought leave to appeal. The Court of Appeal granted leave and allowed the appeal.
s 50: Basten JA considered that, if the officer had been liable, either s 50(2) would have applied to preclude any award of damages, or ss 50(3), (4) would have applied to reduce any such award: [40]-[41].
Brereton JA considered that s 50 was not engaged, as he was not satisfied that Mr Ouhammi’s level of intoxication was such that his capacity to exercise reasonable care and skill in the circumstances was impaired: [119].
NSWCA decision cited in discussion:
Amanda’s On the Edge Pty Ltd v Dries [2011] NSWCA 358
10 Nov 2024
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