Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor

Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor - [2022] NSWDC 246 - NSWDC 2022 case summary — Zoe

[2]

Table of contents Nature of case and parties [1]-[3] Facts not in dispute [4]-[28] Factual matters in dispute [29]-[32] Issues [33] Evidence overview [34]-[37] Credibility and reliability of oral testimony [38]-[53]

The plaintiff [39]
Mr Benade [40]
Mrs Bury [41]-[42]
Mr Tooth [43]-[45]
Mr Payne [46]-[50]
Absence of evidence from Mr Allred [51]-[53] Review of documentary evidence as to liability [54]-[77]
Report of Mr Jack Ellison - marine expert [55]-[65]
Report of Dr Michael Robertson - pharmacologist [66]-[69]
First defendant's business documents [70]-[77]
Luxury boat hire agreement [71]-[75]
Rules for the Party Pontoon [76]
Safety Management Plan [77] Witness statements [78]-[115]
Witness statement of Bruce Mitchell [79]-[83]
Witness statement of William Mountford [84]-[86]
Witness statement of Julia Cross [87]
Witness statement of Daniel Payne [88]-[89]
Witness statement of Jayde Tooth [90]-[93]
Witness statement of Karl McCarthy [94]-[96]
Witness statement of Mitch Keogh [97]-[98]
Witness statement of Dale Berry [99]-[102]
Witness statement of Ben Laws [103]-[105]
Witness statement of Brad Dudley [106]-[115] Miscellaneous documents relating to the second defendant [116]-[118]
Practical assessment record [117]
Eyesight test and medical fitness [118] Issue 1 - Findings on disputed matters of fact [120]-[130] Issue 2 - Agency and vicarious liability [131]-[137] Issue 3 - The relevant risk of harm [138] Issue 4 - Scope and content of duty of care owed [139]-[141] Issue 5 - Voluntary assumption of risk [142]-[150] Issue 6 - Negligence [151]-[175]
Particulars of negligence [152]-[155]
Statutory provisions [156]-[158]
Foreseeability: s 5B(1)(a) of the CL Act [159]
Significance of risk of harm: s 5B(1)(b) of the CL Act [160]
Precautions to be taken: s 5B(1)(c) of the CL Act [161]-[166]
Probability of harm occurring: s 5B(2)(a) of the CL Act [167]
Likely Seriousness of harm: s 5B(2)(b) of the CL Act [168]
Burden of taking precautions: s 5B(2)(c) of the CL Act [169]-[171]
Social utility of the activity: s 5B(2)(d) of the CL Act [172]-[173]
Conclusion [174]-[175] Issue 7 - Causation [176]-[180]
Factual causation: s 5D(1)(a) of the CL Act [177]-[178]
Scope of liability: s 5D(1)(b) of the CL Act [179]
Conclusion [180] Issue 8 - Contributory negligence [181]-[196] Issue 9 - Obvious risk and dangerous recreational activity [197]-[212] Issue 10 - Defence of Intoxication [213]-[219] Issue 11 - Application of the Australian Consumer Law [220]-[227] Issue 12 - Assessment of damages [228]-[265]
Injuries [229]
Treatment [230]-[233]
Medical Assessments [234]-[243]
Dr Porteous - Occupational Physician [235]
Dr Keller - Occupational Physician [236]-[239]
Dr Vote - Orthopaedic Surgeon [240]-[243]
Disabilities that remain [244]-[250]
Economic effects [251]-[252]
Mitigation [253]
Plaintiff's most probable circumstances [254]-[256]
Non-economic loss [257]-[261]
Past economic loss [262]-[269]
Future economic loss [270]-[281]
Future domestic assistance [282]-[285]
Future treatment expenses [286]-[290]
Past out-of-pocket expenses [291]
Summary of damages assessment [292] Disposition [293] Costs [294] Orders [295]

[4]

Facts not in dispute

At about 2.30pm on the day in question, the plaintiff was one of a group of 10 friends who were participating in a pre-arranged social outing on the water at Sussex Inlet on the Australia Day holiday weekend. They were on the first defendant's vessel identified as PartyN2. A member of the group had made the booking with the first defendant and paid a deposit. The first defendant charged a total fee of $750 for the charter of the vessel for the day. The hiring cost was shared equally by the 10 participants. That cost included the provision of a suitably skilled master for the vessel.
Initially, it was intended that the first defendant would be the master of the vessel for the charter. After the first defendant took the booking, due to unforeseen family reasons, he became unavailable on the day in question. Instead, he arranged to provide the group with the services of the second defendant as master. The arrangement involved the second defendant collecting the balance of the agreed hiring fee and passing the whole amount on to the first defendant.
At the first defendant's request, the second defendant had previously driven the first defendant's vessels on 4 or 5 occasions. Previously, the first defendant had observed and satisfied himself as to the second defendant's marine abilities during an earlier commercial outing on the water. The first defendant had undertaken those earlier observations in order to confirm that the second defendant appropriately interacted with customers of the business. That assessment of the second defendant occurred in the context where the first defendant was in the course of developing his newly formed business and he had the intention of employing the second defendant in that business.
The two defendants had known each other for about 15 years in a marine context. In late 2019 the first defendant intimated to the second defendant that he would be employed in the business when there was enough work for him. The business operated two charter vessels at Sussex Inlet. In late 2019 the second defendant obtained relevant marine licensing certificates. In December 2019 the first defendant met with the second defendant and took him through a review of the safety management plan for the business: Exhibit D1, Tab 10, pp 407 - 415; T113.20 - T113.32. At that time, the second defendant had the relevant certificates and exemptions to permit him to master the first defendant's vessels: Exhibit D1, pp 5 - 6; pp 185 - 191.
At the time, Mr Allred had a boat licence, a Marine Rescue Master 3 licence which was said to be equivalent to a coxswain's licence, and a section 38 licence for operating a vessel carrying paying customers: Exhibit A, Vol 3, p 976.
The plaintiff claims that the facts of this case compel the conclusion that at the time of the accident the first defendant was the second defendant's employer. The first defendant denied any such relationship of employment, and instead asserted that at the time of the accident the second defendant was simply engaged on an unpaid trial of work. This raises a question of fact to be determined.
The documentary evidence shows that, from an early stage of the operation of the business, within the business documentation, both the first and second defendants were the persons nominated by the business to carry out safety briefings for passengers on the vessel in question: Exhibit D, Vol 1, Tab 1; T116.14. This raises the suggestion that on occasions, the second defendant would be employed by the first defendant.
There is a body of evidence to the effect that on this particular charter the first defendant had not provided any form of safety briefing to the group, either at the time when the outing commenced, or at any stage during the course of the outing. The plaintiff and other persons who were on the vessel claim no such briefing occurred. That evidence was not inherently improbable.
During the two hours or so before the accident, the plaintiff had consumed several standard cans of full-strength beer and 2 lines of cocaine.
The plaintiff had consumed a meal at about 11.00am on the day in question. He had consumed his first can of beer by about 11.30am. By about 2.15pm he had consumed 4 cans of beer, and he had partly consumed a fifth can, along with 2 lines of cocaine. He had consumed the second line of cocaine about 30 to 40 minutes before the accident.
The unchallenged expert evidence was that, having regard to the plaintiff's height, weight, body mass index and assumed alcohol intake, and having regard to the time of the accident, his blood alcohol content could have been in the range of between 0.05 to 0.11 grams of alcohol per 100ml of blood: Exhibit D1, p 416.
The unchallenged expert evidence was that the plaintiff's ingestion of cocaine would not have impaired his co-ordination (Exhibit D1, p 415), and that a blood alcohol content at the lower and of the range identified above would not have impaired his co-ordination: Exhibit D1, p 425.
However, and notwithstanding that evidence, the first defendant maintained the plaintiff was relevantly intoxicated when he entered the water and, as a consequence, submitted that this should be reflected in findings that support the intoxication defences raised pursuant to ss 48 and 50 of the CL Act, and also in relation to the defence of alleged contributory negligence.
The vessel in question is described as a recreational pontoon suitable for cruising on inland waterways. It was about 6m to 7m in length, powered by a 150hp outboard motor with a 3-blade propeller. It was fitted with a boarding ladder at the stern starboard side. The ladder was designed to allow a person to climb on-board from the water. The location of the ladder was on the stern at the same side as the master's helm position on the starboard side so that the master could maintain a line of sight to the person climbing on-board using the ladder. The following photograph extracted from the evidence portrays a general impression of the appearance of the vessel: [Exhibit A, Vol 3, p 926]
The events leading to the plaintiff's injury were that during the outing, an Akubra hat belonging to one of the members of the group was unexpectedly blown into the water by strong winds. The plaintiff then instinctively reacted by opening a gate at the starboard side of the vessel and diving into the water to retrieve the hat. At that time the vessel had slowed down to a degree.
The plaintiff said that beforehand, he had informed the master of the vessel (the second defendant), that he was going to dive from the vessel to retrieve the hat. The vessel was moving at the time. In the circumstances, it would seem unlikely that there would have been any realistic or practical opportunity for the second defendant to seek to dissuade the plaintiff from that chosen course.
Shortly after the plaintiff had dived into the water, the second defendant, knowing the plaintiff had gone overboard, manoeuvred or looped the vessel to the port side and then circled back to a point past the plaintiff's position in the water in order to allow the plaintiff to re-board. There is no dispute that in those circumstances the correct maritime safety manoeuvre would have been to turn the vessel to starboard and then circle back whilst at all times keeping the plaintiff in the master's line of sight and away from what was described in the evidence as the hazard zone constituted by the area of the vessel's propellor.
The plaintiff had intended to climb back on board by using the fixed ladder located at the starboard side of the stern of the vessel. In those events, the second defendant was unable to maintain his line of sight to the plaintiff. This was because his view had been in part obscured by the location of the plaintiff in juxtaposition to his own position at the helm of the vessel and possibly because of the presence and the location of the other passengers on the vessel, one of whom was filming the plaintiff.
The vessel circled back and had stopped in the vicinity of where the plaintiff was located in the water. The plaintiff said that at that time he did not hear the sound of the engine running: T69.1. He therefore assumed that the motor had been switched off. A factual question arises as to whether the engine was on, and the propeller was engaged and turning under motive power, whether the engine had been placed in the neutral position or whether it had in fact been switched off. At that time, in addition to the effect of the windy conditions, the alcohol fuelled general ambient atmosphere on the vessel was noisy because the group were entertaining themselves by partying, including by playing music very loudly.
After the plaintiff retrieved the hat, whilst he was still in the water, he approached the vessel and swam around and across its stern towards the starboard side with the intention of re-boarding by means of the ladder. That area was known in maritime parlance as the hazard zone. He would not have had to swim across that zone if the second defendant had beforehand turned the vessel to starboard and then circled back towards the plaintiff. That manoeuvre would have kept the plaintiff away from the hazard zone of the propeller whilst it was under motive power and the master could have maintained a line of sight to the plaintiff in the interests of safety.
As the plaintiff prepared to re-board the vessel, he felt two knocks to his left leg in the area of his left knee. He took hold of the fixed ladder at the stern of the vessel and proceeded to climb aboard after throwing the retrieved hat on board. At the time, a member of the group was filming these events using the camera function on his mobile phone. Those images show the plaintiff slowly emerging from the water as he ascended the ladder.
As the plaintiff ascended the steps of the ladder, a large deep laceration became evident just below his left knee. The audio that accompanied the images contemporaneously includes a loud and shocked exclamatory verbal reaction. In fact, the plaintiff had suffered two lacerations, about 20mm apart, consistent with having had contact with a spinning or rotating propeller.
The following photograph extracted from the evidence portrays a general impression of the out-of-water appearance of the motor and the propeller at the stern of the vessel:

[13]

Mr Tooth

Mr Tooth was a friend of the first defendant, Mr Payne. In addition to giving oral evidence, Mr Tooth also provided a statement to the Roads & Maritime Services appointed investigator: Exhibit A, Vol 3, pp 915 - 923. That statement will shortly be reviewed separately. Mr Tooth was the person who had made the hiring arrangements for the charter of the vessel for the outing in question by paying the deposit. He had sent a text message to the group of friends concerning the arrangements inviting the participants to the outing: Exhibit C. He gave his evidence via an AVL connection. He was the person who had collected the balance of the first defendant's agreed $750 hiring fee for the charter. He had not been privy to the subsequent arrangements made between the first and the second defendant as to who would master the vessel on the day in question.
At the time of the accident, Mr Tooth had been standing on the vessel. He had witnessed the plaintiff dive from the starboard side of the vessel into the water whilst the vessel was still moving. He said he could not recall hearing the plaintiff say anything to the second defendant before diving into the water. This was understandable given that the group was partying and playing loud music on board and having regard to the windy conditions that prevailed. He said that after the plaintiff's dive into the water the vessel then travelled "full steam ahead" for a relatively short distance before turning around to collect the plaintiff.
Mr Tooth said that shortly before the plaintiff emerged from the water, he heard a "clunk" which indicated to him that the outboard motor on the vessel had been placed in neutral at a point about 15 metres from where the plaintiff was located. His expertise for making that last cited observation was not apparent. I found Mr Tooth to be a credible witness and I have accepted his evidence except in relation to that last cited matter of whether the outboard motor was in neutral at the time the plaintiff was injured.

[14]

Mr Payne

In addition to giving oral evidence, Mr Payne also provided a statement to the RMS appointed investigator: Exhibit A, Vol 3, pp 911 - 913. That statement will shortly be reviewed separately. Mr Payne described how the second defendant, Mr Allred, came to be in charge of the vessel on the day in question. He said he was satisfied that Mr Allred had appropriate navigation experience to take the vessel out on the charter. This was in the context where he had known Mr Allred to have had work experience in the marine industry over the course of a considerable number of years.
Mr Payne claimed that Mr Allred had taken the boat out on a "dry hire" and something of a work trial on this particular occasion. I found that characterisation of the events to be questionable and implausible on a consideration of the evidence as a whole. He said he formed that view in "hindsight". In that arrangement, he said Mr Allred had paid him the fee that had been collected from the group for the outing in circumstances where Mr Allred did not receive or retain any form of payment for taking the vessel out on this occasion.
Mr Payne said Mr Allred had acquired the necessary first aid and coxswain certificates (T117.33, T117.49). That evidence was in tension with his earlier evidence in which he claimed Mr Allred was not qualified: T114.34. In that earlier evidence, it is possible that perhaps he had meant to convey the meaning that in the past Mr Allred had not held the requisite certificates but he in fact held them at the time the plaintiff was injured.
Mr Payne said that he expected (and here I interpolate, assumed without evidence) that on the day in question, Mr Allred would have included in his safety briefing the request that passengers not jump overboard whilst the vessel was moving (T116.25 - T116.37). Mr Payne confirmed he was satisfied with Mr Allred's capability to safely take the vessel out on the water: T117.49. He said that if he had felt otherwise, he would not have permitted him to take the vessel out that day.
Mr Payne said that in hindsight he regarded Mr Allred's involvement as the master on the day to be something of an unpaid work trial: T118.5 - T118.15. He also sought to re-characterise his arrangement with Mr Allred in hindsight as a "dry hire": T114.34. I considered such characterisations to be unlikely to be correct. I had reservations about the credibility and reliability of that attempt by Mr Payne to re-characterise those arrangements after the event.

[17]

Report of Mr Jack Ellison - marine expert

The plaintiff retained Mr Jack Ellison, a professional boat driver, as an expert witness. His expert report is dated 19 November 2021: Exhibit A, Vol 1, pp 56-178. The annexures to Mr Ellison's report, which were compendious, included his letter of instruction, his CV, the video film of the plaintiff's accident, the NSW Transport Maritime Handbook, the NSW Maritime Safety Regulation, and a publication entitled the "ABC Boat and PWC Guide" published by an entity identified as the Australian Boating College: Exhibit A, Vol 1, pp 179 - 483.
Mr Ellison's qualifications, experience, and his expertise, were not the subject of challenge and he was not required for cross-examination. Mr Ellison reviewed the circumstances of the plaintiff's injury when his left leg came into contact with the propeller of the vessel. He expressed the opinion that Mr Allred had driven the vessel in a manner that was not in conformity with standard and competent practice regarding the retrieval of an overboard person from the water. Those views formed the basis of the plaintiff's claim of negligence and lack of due skill and care on the part of Mr Allred.
Mr Ellison's reasons for those opinions were expressed in clear terms that were critical of Mr Allred. These are summarised as follows: 1. He failed to provide an appropriate pre-departure safety briefing; 2. He failed to keep a proper lookout whilst retrieving the plaintiff and a related failure to recognise the risk of the plaintiff having to swim in the hazard zone at the stern of the vessel because of the manner of approach of the vessel to retrieve the plaintiff; 3. He incorrectly placed the vessel in juxtaposition to the plaintiff so that the plaintiff was required, at great risk to himself, to cross behind the motorised propeller in the hazard zone to reach the ladder in order to climb on-board. He described this as an incorrect maritime rescue technique; 4. He failed to approach the plaintiff on the starboard side to maintain a line of sight to him where that approach would have allowed the plaintiff to re-board on the starboard ladder without encountering the risk of coming into contact with the propeller in the hazard zone; 5. He failed to approach the plaintiff at a safe and reduced speed that would have allowed him to come alongside the plaintiff and stop the vessel in an appropriate juxtaposition to allow the plaintiff to safely re-board on the starboard side; 6. He failed to place the engine of the outboard motor in neutral and turn off the engine prior to the plaintiff swimming into the hazard zone around the propeller; 7. He inappropriately selected reverse gear whilst the plaintiff was in the hazard zone and in close proximity to the propeller with the result that the turning of the propeller was not readily apparent to the plaintiff at that time.
Mr Ellison was asked to consider whether, if a person in the position of the plaintiff had come into contact with a standard propeller when the motor was in neutral, an injury would have resulted. Mr Ellison was of the opinion that as the propeller was relatively blunt, and can spin freely (such as by the force of a current), a minor injury may have resulted in such circumstances.
However, in this case, Mr Ellison considered that given the plaintiff received two deep lacerations on his leg in close proximity, approximately 20mm apart, it was more likely that the engine was running and engaged in gear, with the propeller spinning at speed. He was of the opinion the plaintiff's injuries were caused by a spinning propeller under power. That view was consistent with the medical assessment of Dr Vote, the first defendant's orthopaedic expert, which I will refer at a later point in these reasons.
In that regard, Mr Ellison concluded that the plaintiff's injury occurred when the engine was in reverse gear as the second defendant was trying to stop the forward momentum of the vessel. He came to that view because the video evidence shows that at the time the plaintiff was swimming towards the vessel and into the hazard zone behind the motor, the vessel was still moving forward.
Mr Ellison also considered that the speed of the vessel was unsafe at that time. He said there was no visual evidence of turbulence in the water. Significantly, this indicated to him that the engine was operating in reverse gear, and that all turbulence from the spinning propeller was not visible because it was directed forward and under the hull of the vessel. He was plainly using his experience and expertise in interpreting the contemporaneous video evidence. His opinion was not challenged.
On that basis, I find it more probable than not, that at the time, in the circumstances that prevailed, the plaintiff would have been misled into believing that the propeller was disengaged, and was not operating under motive power when he entered the hazard zone.
In his report, Mr Ellison identified the general proposition that a safe speed would have been one at which the vessel could be stopped in time to avoid any danger that arises. To enable the vessel to stop in that manner, the master must keep a proper lookout, and in this case, the second defendant would not have been in a position to do so because of his decision to turn the vessel to port and not to starboard.
Mr Ellison identified the correct technique for manoeuvring the vessel for retrieving the plaintiff. This involved maintaining a line of sight to the plaintiff in the water, keeping him on the starboard side, keeping the vessel facing into the wind and the current at all times, and on approach to the plaintiff, placing the engine into reverse to stop the forward momentum, and then bringing the vessel to a complete stop with the propeller turned off to allow safe re-boarding without the need for the plaintiff to enter the hazard zone in order to access the ladder. He concluded that in the circumstances of this case, contrary to those requirements, the plaintiff was avoidably placed in a dangerous situation in having to swim past the operating propeller whilst the engine was running.
In my view, the video sequence of the event, as seen in Exhibit "B", provided ample evidence to support and justify the opinions summarised above. There was no evidence or convincing argument that contradicted Mr Ellison's conclusions.

[20]

Luxury boat hire agreement

On 25 January 2020, the first defendant and the second defendant Mr Allred appear to have entered into a pro-forma pontoon hire agreement providing for a 7 hour hire between 12 noon and 7pm at the stated cost of $750. That characterisation did not sit well with the evidence of Mr Tooth's agreement with Mr Payne. There is no evidence to suggest that the plaintiff knew of the fact of that hiring agreement with Mr Allred at the time he boarded the vessel.
By that agreement, Mr Allred agreed to be responsible for the safe operation of the vessel during the hire period, including the requirement that all guests remain within the railings whilst the vessel is underway. The document stated "Safety Briefing carried out by Danny/Wayne" which suggested Mr Allred was a relevant actor in the business. The agreement concluded with the following terms agreed to by Mr Allred: "I hereby indemnify Sussex Inlet Pontoons and its employees of (sic) any loss or damage of personal property OR injury or loss of life during the hire period": Exhibit D1, Tab 1, p 1.
In any event, although Mr Allred was not being paid to master the first defendant's hired vessel on the day in question, the indemnity issue does not impact adversely on the liability components of the plaintiff's claim against the first defendant where the plaintiff claims that Mr Allred was the employee and the agent of Mr Payne. The indemnity issue is therefore not relevant to any issue to be determined in the plaintiff's case against the defendants.
In considering the issue of whether Mr Allred was employed in Mr Payne's business on this particular occasion, I have not overlooked the fact, or the content of the hiring agreement dated 25 January 2020: Exhibit D1, Tab 1, p 1. Two matters of relevance emerge from that agreement.
First, there was no contractual consideration for that agreement flowing between Mr Payne and Mr Allred, where Mr Allred was not being paid for his services. It is doubtful that the agreement is a binding contract. Secondly, if I be found to be wrong in respect of that conclusion, the asserted matter of an indemnity must be read subject to the overriding provisions of the Law Reform (Vicarious Liability) Act 1983 (NSW).

[33]

Witness statement of Brad Dudley

On 4 May 2020, Mr Brad Dudley, a boating safety officer employed by Transport, Roads & Maritime Services, prepared a witness statement in which he described the sequential details of his official investigation of the circumstances surrounding the plaintiff's injury. His statement annexed a series of photographs of the vessel, its layout and images of the propeller, and also annexed a transcript of his record of interview of Mr Allred which he carried out on 21 April 2020. That record of interview contained Mr Allred's answers to a series of 727 questions: Exhibit A, Vol 3, pp 955 - 1046.
Mr Dudley's investigation of the incident commenced on the receipt by RMS, of Mr Berry's video images of the plaintiff's accident. His interpretation of the events shown in those images was as follows: "On the 3 February 2020, I receive a phone video clip… containing footage of a male person swimming in water. I observed the male swimmer swim behind a black Suzuki 150 horse power outboard motor. I observed a male, who I now know as the victim, Adam LICCARDY, in the water swimming towards a vessel. I observed the victim swimming on the port side of the vessel and to the aft of the vessel. The victim has crossed behind the motor which was in the water. I observed the victim throw an item up onto the rear deck of the vessel and then look back towards the motor. I saw the victim climb the rear ladder and observed he had received injuries to his left leg. I replayed the video again at the part where the victim looked back towards the motor and observed the motor shutter at the same point when the victim looks back. The shutter of the motor and the victim looking back to the motor indicated to me this was the point where the victim's leg has possibly come into contact with the vessels motor resulting in the injury to victim's left leg. This video clip was taken by a male passenger on board the vessel at the time of the incident who I now know as, Dale BERRY. I knew the vessel involved in this incident is owned and operated by a local business called Sussex Inlet Pontoons..." [Exhibit A, Vol 3, pp 956 - 957]
Mr Dudley subsequently attended the moorings where the vessel was berthed. He inspected the operation of the vessel, the outboard motor and the propeller, both in and out of the water, and found no issue of concern. He then made arrangements to interview the witnesses whose statements have been summarised in the preceding paragraphs. He also conducted an interview with Mr Allred, the details of which are summarised in the paragraphs that now follow.
Mr Dudley's record of the interview with Mr Allred contained the following explanations of the arrangements Mr Payne made with him: "Q 112. Yeah. All right. So on the day of the 25th that's what we're investigating today, so in your words, Wayne, what - what from the very start of the day, even before that, how you got to be working on PartyN2 and going right up until the incident happened but in your words what - what went on on 25 January 2020? A. Danny rang me up and asked me what I was doing. He said, Can you do me a favour Q 113. Yeah. A. I said, Yeah. It's not a problem. What do you want? And he said boys wanted to hire the boat but they wanted to get on the piss. Q 114. Yeah. A. And he said, I'm busy. He says, Is there any chance you can do it for them? I said, Yeah, I suppose so, I'm not doing anything much today. I said, I don't mind helping you out. And I said, It saves them getting booked for - for being on the turps. Q 115. Yeah. A. I said, Yeah. Q 116. Busy day. A. I said, Yeah, I said, I'll help the boys out. I said, I don't want anything for it. I said, I'll just do it, you know, it gives me a day out - - - Q 117. Yeah. A. - - - a day out on the water." [Exhibit A, Vol 3, p 985]
In that record of interview, Mr Allred described the conditions on the day in question as being windy with the presence of white cap water due to the prevailing rough conditions: Q&A 131 to Q&A 132.
In his interview, Mr Allred described the events of the plaintiff's accident in the following terms: "Q 138. Yeah. A. And then basically heading across one of them, you know, they had a radio blaring up loud and what have you but next thing you know there was a hell of a commotion and I sort of turned around to see what was going on and they were yelling out, A hat, a hat. Next thing you know obviously one of the boys straight out over the side. Q 139. What side was that? A. It was on the right-hand side. Q 140. Mm-hmm. A. And I said, What the hell is going on? He's getting his hat. All right. So I just treated that as a man overboard. Q 141. Mm-hmm. A. Just carried on up a bit further, looped around and the way that the sea was running and the wind was running, I thought, well, I'll come in on that side and the two - just let the wind and the thing just bring us together instead of actually trying to get close to him. Q 142. Yeah. A. Yeah, and then next thing you know there was a commotion again and oomph. He was hurt. Q 143. Yeah. A. I'd actually pulled up and taken everything out of gear, as I said, just let the wind and the - and the sea work together - - - Q 144. Yeah. A. - - - to try and bring us both together. You know, if they had said to me, Look, hang on, we've lost a hat, Don't worry about it. I'll do a loop around, get a bale hook and fish it out which I've done I don't know how many times before. Q 145. Yeah. A. There's no need to even jump over the side. Q 146. Yeah. A. But they did without even asking. Q 147. Yeah. A. They told me about it as soon as I turned round. By that stage it was too late. He had already gone. Q 148. Yeah. A. I didn't have a chance to say, Yes, you can. No, you can't. Q 149. Yeah. A. Looking at it, he was a fairly strong swimmer, I could see that part of it so it wasn't too perturbed. (MOBILE PHONE RINGS) I'll get back to you, Danny. Yeah. Yeah, so, but looking at it now I thought I was doing the right thing at the time. Q 150. Mm-hmm. A. Maybe I probably would have been better off coming back round the other way possibly. Q 151. What way did you turn when you said you went down a bit further? A. I actually went to my right and then come back round to my left and come round in behind (indistinct) Q 152. So he fell over the - - - A. He went out on the right. Q 153. On the starboard? A. On the starboard side, well, starboard side. Carried on probably about another 40, 50 metres, went to the starboard and then come back round to the port and come round in behind. Q 154. Yeah. I'll just go - and so he's in the water and then you heard another commotion and that's when you've - - - A. Found out he was hurt. Q 155. Yeah, and you saw - - - A. I didn't actually see the actual accident happen. Q 156. Yeah. A. It wasn't until I actually went to the back because he was still sitting there. One other guy was trying to help him get up onto the ladder and spotted him, his leg." [Exhibit A, Vol 3, pp 988 - 990]
In the interview, Mr Allred made the point that he had been engaged to drive the vessel on the day as a favour to Mr Payne without financial benefit to himself: Q&A 116; Q&A 180 to Q&A 185.
In that interview, Mr Allred also said that, in the lead up to the plaintiff's injury, he saw the plaintiff in mid-air after he had jumped off the vessel from the starboard side without prior conversation: Q&A 208 to Q&A 215. He said that after he had turned and brought the vessel near the location of the plaintiff for retrieval, he had disengaged the gears but the vessel nevertheless moved "a little bit" because of the wind and the tide (Q&A 283 to Q&A 280). He admitted the plaintiff was on the port side and claimed he had sight of the plaintiff, who he considered was not in need of assistance in re-boarding until he lost sight of him: Q&A 285 to Q&A 296. Mr Allred claimed the gears were in the neutral position with the motor running: Q&A 298 to Q&A 304.
When Mr Allred was questioned on the matter of whether he was Mr Payne's employee, he gave the following rambling, and at times unclear, answers to questions: "Q 471. Okay. Would you state you're an employee of the business? A. No, not - I wouldn't say. Initially we got it to be an employee eventually but with things that have happened - - - Q 472. What do you mean by that statement? A. Well, we haven't been able to get under way the way that he wanted to set it up because you've had the fires, no tourists; had the floods, no tourists. You've got coronavirus, no tourists. Q 473. What do you mean by that? You said sort of an employee. What was the arrangement between the owner of Sussex Inlet Pontoons, Daniel Pain [sic], and yourself that made you think you were an employee? A. If things got off the ground the way that he wanted it to and he needed a hand would I work for him. I said yeah. Q 474. So you were offered employment? A. If - if the opportunity arose. Q 475. So were you promised employment - - - A. No. Q 476. - - - or were you considered an employee? A. No. Q 477. But you just stated to me then that if things got off the ground and stuff like that you would be employed? A. He - he would use me if he needed to. Q 478. In a paid role? A. Possibly. Q 479. Have you ever received payment from Daniel? A. No. No. Q 480. So everything you've done has been voluntarily? A. Yeah. Q 481. Okay. Have you ever discussed with Daniel a future prospect of employment? A. We have talked about it." [Exhibit A, Vol 3, pp 1020 - 1021]
When Mr Allred was questioned about his own actions after the plaintiff had gone overboard, he gave some vague and at times off-hand answers, as follows: "Q 554. Which way did you turn? A. To my right. Q 555. So you looked out the starboard side? A. Mm. Q 556. And what did you see? A. Did I turn right or left? No, it would have been, sorry, I turned that way. If I'm going looking forward I've turned around that way, turned a complete 180. Q 557. So you've turned and looked out the port side? A. Yeah. I can't remember whether I went left or right but I turned a complete 180. Q 558. So you were aware that Adam was in the water on the port side, the left side of your vessel? A. Yeah. Left or right side, I can't bloody remember now, to be honest. I'm just trying to think. I can't remember whether it was left or right. All I know is he went over the side. Q 559. Well, there's a lot of side of the vessel. I don't mean to sort of criticise your answers but we need to be specific as to what your observations on that day were. A. Mm. Q 560. You've looked out - I'm going to use right and left - you're on the right side of the vessel at the controls of the vessel and Adam, according to your version and the version from the witnesses, has gone off on the left side of the vessel. When did you become aware that Adam was on the left side of your vessel and had jumped in - and was in the water? A. When I heard the commotion and turned around to look - to see what the commotion was. Q 561. And you turned to your left and saw him in the water? A. I can't remember whether I went left or right but I did a complete 180. Q 562. At any time was Adam on the same side as the helm? A. Well, yeah, he would have been when he was getting on the boat." [Exhibit A, Vol 3, p 1027 - 1028]

[37]

Issue 1 - Findings on disputed matters of fact

The charter arose in the context that at the time, Mr Payne's pontoon hiring business was in its early stages of operation. Mr Payne had known Mr Allred for about 15 years in a marine context. A relationship of employment had been contemplated between them from the outset of the commencement of the business. The employment of Mr Allred was to be dependent upon the availability of work, which was a judgment call to be made by Mr Payne.
In those events, Mr Payne had scrutinised Mr Allred's certification status and his efforts in achieving full certification whilst he was receiving Centrelink benefits. He was confident that Mr Allred was a capable mariner: T117.42. He had observed Mr Allred taking out one of his vessels as master on some earlier occasions. He would not have allowed someone to take his vessel out on this particular hiring in his stead if he thought that person was not competent and capable: T117.49. Plainly, from an early stage, Mr Payne was intending to employ Mr Allred in the future as he had two pontoons to operate in his charter business: T118.3.
Mr Payne claimed, contentiously, that Mr Allred was not employed by him on the day in question. He said that prior to the accident on 25 January 2020 he gave Mr Allred "a bit of cash" for his efforts. I infer from that evidence, that this involved payment from time to time for Mr Allred's efforts in the course of business activity for Mr Payne's business.
I do not accept Mr Payne's evidence which was given in answer to leading questions to the effect that on the day in question he sent Mr Allred out on a "work trial" as a "dry hire": T117.24 - T117.29. Mr Allred was sent out on the charter unsupervised because he was, from Mr Payne's observations, capable for the task and it provided a financial benefit to Mr Payne's business. The arrangements had all the characteristics of employment except for the matter of payment on the day in question. This appears to have been withheld as a result of the accident. There was a history between Mr Payne and Mr Allred, of cash payment on other occasions.
I find that on this particular day Mr Allred was the master of Mr Payne's vessel as an employee of the business. As such, Mr Allred was Mr Payne's employee and not an independent contractor. This raised the spectre of agency.
That conclusion is supported by the fact that the charter involved the used an expensive piece of equipment that belonged to the first defendant, the first defendant charged and received a hiring fee for the provision of both the vessel and its master, notwithstanding that Mr Allred, received no financial benefit from the charter. He did not use any of his own equipment in the arrangements. To my mind, those matters indicate a relationship of employment. In coming to that view, I have not overlooked Mr Allred's contested assertion that he was doing Mr Payne a favour without payment: Exhibit A, Vol 3, pp. 1020 - 1021; Q&A 477. I gave little weight to that assertion in the absence of his oral evidence.
Turning to the facts of the accident, I accept that, before the plaintiff dived into the water, he had informed the second defendant of his intention to do so. That said, in the rapidly evolving circumstances, I consider that it was unlikely that at that time Mr Allred could have persuaded the plaintiff not to proceed to dive into the water from the moving vessel.
The finding that the plaintiff advised Mr Allred of his intention to dive from the moving vessel is supported by Mr Allred's described response, as related in the evidence of Mr Tooth, whereby Mr Allred promptly turned the vessel in a loop to port in order to circle back and proceed to the plaintiff's location in the water to allow him to re-board.
The evidence discloses that other than manoeuvring the vessel close to the plaintiff's location, Mr Allred took no further steps to advise, assist, or to guide the plaintiff in re-boarding the vessel, with buoyancy aids or otherwise. This seems surprising and is perhaps possibly explained by Mr Allred's own earlier consumption of alcohol during the charter.
I find that neither before nor after the trip started, did Mr Allred provide the group with any form of a safety briefing. There is no reliable evidence to suggest that at the outset of the trip he had drawn their attention to the document entitled Rules for The Party Pontoon, particularly Rule 8, which required that all guests remain inside the boat at all times whilst the boat is in motion: Exhibit D1, Tab 2, p 2.
Mr Payne made the point that he has not employed Mr Allred since the accident because of the criminal proceedings against him that resulted from the plaintiff's injury. Those matters are not relevant to a consideration of the issues in this case and therefore that evidence does not require any further examination or determination.

[38]

Issue 2 - Agency and vicarious liability

Mr Payne operated his pontoon charter business at Sussex Inlet. In December 2019, he was contacted by Mr Tooth about this particular charter. A charter fee of $750 was negotiated and agreed upon. Due to unexpected family commitments on the day, Mr Payne was unable to personally take the vessel out for the charter and he therefore arranged for Mr Allred to be the master in his stead. In my view, that arrangement suggested a relationship of agency between Mr Allred and Mr Payne concerning the use of the vessel. Mr Allred, as Mr Payne's employee, was the person approved by Mr Payne to be the master for the purposes of the business use of the vessel.
The evidence of Mr Payne, as cited above, satisfies me that there was a relevant relationship of employment and agency between Mr Payne and Mr Allred. On the first defendant's case, the asserted fact of the second defendant being on a "work trial" which resulted in a profit for the first defendant's business, where the second defendant was required to exercise his professional skills for the benefit of the first defendant, should in this case result in a finding that a relevant relationship of agency existed as was discussed in Huynh v Minh Truong and Thi Thu Hoang Pham t/as Le Bon Bakehouse [2018] WADC 39.
I am satisfied that the cited detail which underpinned that relationship establishes the basis for the plaintiff's claim of vicarious liability because Mr Payne gave Mr Allred permission to use the vessel for the purpose of his business when Mr Allred took the charter on Mr Payne's behalf in the course of the latter's business.
In those events, Mr Payne was satisfied that Mr Allred had the necessary qualifications and experience to operate the vessel on the charter. He asked Mr Allred to fulfill an obligation that he could not have personally fulfilled: T117. In my opinion it is of no consequence to any issue in this case that Mr Payne did not pay Mr Allred for his efforts on this occasion. In my opinion the evidence justifies the conclusion that there was a sufficient business connection to establish a relationship of agency and vicarious liability for any acts, neglects, and defaults on Mr Allred's part in connection with his use of the vessel in question.
I do not accept Mr Payne's hindsight and self-serving characterisation suggesting that the arrangement was an unpaid "work trial" by which he sought to downplay the nature of Mr Allred's engagement on the day in question.
Relevantly, s 7 of the Law Reform (Vicarious Liability) Act 1983 (NSW) provides: "7 Vicarious liability of masters Notwithstanding any law to the contrary, a master is vicariously liable in respect of a tort committed by the master's servant in the performance or purported performance by the servant of an independent function where the performance or purported performance of the function: (a) is in the course of the servant's service for his or her master or is an incident of the servant's service (whether or not it was a term of his or her contract of service that the servant perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the servant's master."
Consequently, I find that the vicarious liability provisions within s 7 of that Act are engaged in the described circumstances. It follows that Mr Payne must be held liable for Mr Allred's acts, neglects, and defaults as his employee/agent, where such actions have led to the plaintiff's injury.

[41]

Issue 5 - Voluntary assumption of risk

The first defendant relies upon a defence that the plaintiff had voluntarily assumed the risk of incurring injury loss and damage when he dived into the water from the moving vessel: volenti non fit injuria.
The question of whether the plaintiff was volens to the risk because of his alleged knowledge of the risk, a subjective matter, is a question of fact that the first defendant must prove: Rootes v Skelton [1967] HCA 39; (1967) 116 CLR 383, at 396; s 5E of the CL Act.
The plaintiff was a strong swimmer. There is no reliable evidence to suggest his swimming ability was relevantly impaired. He knew the waters in which he had dived. The risk of injury from the propeller was not apparent to him at the time he dived into the water. He could not have known that the master of the vessel would behave negligently.
The first defendant's submissions inviting acceptance of the volenti non fit injuria defence invite error by engaging in the dangerous lure of a hindsight analysis: Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited, supra, at [51].
All aspects of the circumstances must be considered when determining whether a defence of volenti non fit injuria applies: Miller v Miller [2011] HCA 9, at [6].
Those considerations include allowing for the possibility that despite the expectation that the passengers would exercise reasonable care for their own safety, it was possible that one or more of them might be inattentive or act negligently, depending on the circumstances, which here, included the party atmosphere, the consumption of alcohol, and drugs: Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [45]; following Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, at [35].
If, for example, the plaintiff had dived into waters known to be shallow and in doing so injured himself by coming into contact with a submerged object, a volenti defence would most likely be available. However, the circumstances under present consideration are very different to examples such as that.
When the plaintiff dived off the moving vessel he did so in relatively deep water where any such risk was remote. He remained in relatively deep water whilst Mr Allred brought the vessel close to him for his retrieval. In doing so, at that point, the plaintiff became exposed to the risk of injury by contact with the propeller because the engine had not been shut down and the propeller was operating under power in reverse gear. In those events, Mr Allred created that danger after the plaintiff had entered the water.
In my opinion, the plaintiff was therefore not volens to the risk of injury from contact with the propeller at that point because he did not know the engine was still on and operating, and that the propeller was engaged in reverse as he was preparing to re-board the vessel. At that time, 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. I therefore reject the defence of volenti non fit injuria.

[43]

Particulars of negligence

The plaintiff has pleaded the following particulars of negligence as against the first defendant: 1. Failed to adequately train the second defendant. 2. Failed to prevent the plaintiff from jumping into the water. 3. Failed to turn to the starboard side thereby requiring the plaintiff to pass across of the stern of the boat to access the ladder. 4. Failed to shut down the motor before the plaintiff came near the stern of the boat. 5. Failed to keep a proper lookout.
Allegation (a) of failure by the first defendant to provide adequate training to the second defendant appears to be misplaced as the second defendant had all the necessary certificates to qualify him to take the charter. Additionally, the first defendant had previously observed the second defendant and assessed him as being capable. Allegation (b) of a failure to prevent the plaintiff from jumping in the water also seems to be misplaced given the immediacy of the plaintiff's instinctive reaction was to dive in to retrieve the hat. Allegations (c), (d) and (e) relating to safe navigation require consideration in conjunction with the expert evidence and the applicable maritime regulations.
The plaintiff pleaded the following particulars of negligence as against the second defendant: 1. Failed to prevent the plaintiff from jumping into the water. 2. Failed to turn to the starboard side thereby requiring the plaintiff to pass across of the stern of the boat to access the ladder. 3. Failed to shut down the motor before the plaintiff came near the stern of the boat. 4. Failed to keep a proper lookout.
Allegation (a) of failure by the second defendant to stop the plaintiff from "jumping" into the water seems to be misplaced as the plaintiff was plainly determined to enter the water in order to rescue the hat. In my view, it is unlikely that the plaintiff could have been dissuaded from his chosen course and in the circumstances that prevailed it was not feasible for the second defendant to leave the controls of the moving vessel in order to seek to physically restrain or otherwise prevent the plaintiff from diving into the water as in fact occurred. Allegations (b) and (c) relating to safe navigation require consideration in conjunction with the expert evidence. Allegation (d) is axiomatic and generic in nature.

[47]

Precautions to be taken: s 5B(1)(c) of the CL Act

As to the element of the precautions that a reasonable person would have taken in the circumstances, both defendants ought to have exercised common sense and implemented well known and understood maritime precautions that a reasonable person in their respective positions would have taken: s 5B(1)(c) of the CL Act.
A reasonable person in the position of the first defendant ought to have provided a competent master for the charter. A master of that calibre was required to be sufficiently trained, experienced, and licensed, so as to be able to recognise and prudently respond to any emergent dangers that could pose a risk of harm to passengers.
The evidence shows that the first defendant took those precautions in that he was satisfied that the second defendant was appropriately qualified and experienced, and could appropriately manage the required tasks whilst in charge of the vessel and its passengers. In that context, the first defendant's expectation was that Mr Allred would follow and appropriately implement necessary safety procedures, and provide a safety briefing to passengers at the outset.
Accordingly, any liability of the first defendant must be extended to that which arises vicariously in respect of the actions of the second defendant as his designated master for the charter.
In the case of the second defendant, the common-sense precautionary tasks that were required of him were not unduly onerous for him to implement given the magnitude of the range of risks of injury that could have foreseeably arisen. The unchallenged expert evidence indicates that the precautions required of a reasonable person in the position of the second defendant included: 1. Providing appropriate and timely safety warnings to passengers before the trip commenced, including the specific warning not to jump into the water from the vessel whilst it was moving; 2. Refraining from consuming alcohol and other substances that might have the effect of impairing navigational and safety judgments whilst passengers were in his care as the responsible master for the charter; 3. Providing appropriate supervision of the activities of his passengers including reminding passengers to remain on-board and not enter the water from the vessel whilst it was moving; 4. Responding safely and appropriately to foreseeable occurrences that required responses in the interests of passenger safety, including where a person was known to have gone overboard; 5. Ensuring that during the retrieval process, a person in the water (such as the plaintiff), was warned not to swim into the hazard zone behind the vessel whilst the engine and propeller were engaged and operating; 6. Ensuring that safe person overboard retrieval procedures were followed and adhered to, including providing appropriate situational safety advice to a person in the water awaiting retrieval and re-boarding; 7. Providing and deploying appropriate buoyancy aids and to assist the plaintiff to re-board the vessel; 8. Adherence to known and applicable navigational safety standards and requirements.
The evidence shows that the second defendant fell well short of those requirements in this instance.

[57]

Issue 8 - Contributory negligence

The first defendant pleaded the following particulars of contributory negligence as against the plaintiff: 1. Voluntarily diving overboard. 2. Voluntarily diving overboard without seeking the permission of the Second Defendant. 3. Swimming and engaging in aquatic activities in the vicinity of an operating motorised vessel. 4. Swimming near a propeller. 5. Swimming and engaging in aquatic activities in circumstances where he was intoxicated following the consumption of alcohol and cocaine. 6. Swimming and engaging in aquatic activities in circumstances where his blood alcohol concentration was in the order of 0.11g/100mm (sic) and not less than 0.05g/100mm (sic). 7. Voluntarily consuming alcohol and cocaine to an extent where he was impaired from exercising reasonable care and skill. 8. Failing to heed the warning provided by way of a sign on the vessel, to remain inside the boat at all times whilst the boat was in motion.
The first defendant has also relied upon the maxim volenti non fit injuria as an allegation of contributory negligence. That defence has already been examined and rejected in the consideration of Issue 5 above.
It is for the defendants to prove that if there was contributory negligence on the part of the plaintiff, any such negligence was a relevant cause of the harm suffered by the plaintiff: ss 5D and 5E of the CL Act.
In relation to contributory negligence allegations (a), (b) and (f) above, I consider that, of themselves, they have no causative relevance in this case. There is no satisfactory evidence that the plaintiff's activity in swimming towards the vessel in order to re-board it was in any way impaired such that he was at increased risk of injury by being in the water. He did not dive towards the propeller, or the hazard zone, and he was entitled to assume that Mr Allred, as the master, was taking due care for his safety whilst in charge of the vessel. He was unaware that the engine and the propeller were actively engaged in reverse gear at the time he proceeded to re-board the vessel.
Section 5R of the CL Act provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose - (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
Section 5S of the CL Act provides: "5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated."
In an appropriate case, it may be just and equitable to find that contributory negligence, if established, could possibly be assessed at 0% where such contributory negligence had no causative potency in respect of the occurrence of the plaintiff's injury.
To sustain contributory negligence, the first defendant must firstly satisfy the mandatory requirements of s 5B(1) and (2) of the CL Act.
On the expert evidence of Dr Robertson, there is little room for doubt that the plaintiff's intake of alcohol, if not also cocaine, was influential in his judgment and in his instinctive or impulsive reaction to dive into the water to retrieve the hat. That action on his part was capable of sustaining a contributory negligence finding in that it was foreseeable that an injury could occur from a variety of causes whilst he was in the water.
In that regard, if the plaintiff had been injured by coming into contact with a submerged object located near the vessel when he dived into the water, or if he had suffered an injury from a near drowning event, the question of contributory negligence would be a relevant consideration.
However, in this case, the source of the plaintiff's injury was different, in that it was relevantly caused by the decisions and the actions of Mr Allred, 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. The defence has not established a relevant causal nexus between any alleged contributory negligence of the plaintiff and the injuries he suffered.
The first defendant submitted that the plaintiff was engaged in something in the nature of "a frolic" when he was injured. I do not accept that submission. The circumstances were that Mr Allred brought the danger to the plaintiff. The plaintiff had not placed himself in the hazard zone. He acted reasonably in seeking to re-board the vessel. He had no choice but to adopt the approach of swimming across the hazard zone by reason of Mr Allred's actions in manoeuvring the vessel, where the plaintiff was unaware that the engine and the propeller had remained activated.
In those circumstances, on two bases, the defence of alleged contributory negligence is not sustained. First, any want of care on the part of the plaintiff for his own safety did not involve foreseeing that the engine and the propeller would remain engaged and operating whilst he was re-boarding the vessel.
Secondly, having regard to the question of factual causation, if Mr Allred had acted appropriately by correctly positioning the vessel to starboard to allow the plaintiff to re-board safely without having to traverse or swim across the hazard zone, and if Mr Allred had stopped the engine and the propeller to safely facilitate that re-boarding process instead of placing the propeller in reverse, the plaintiff's injuries would not have occurred: s 5D(1)(a) of the CL Act; Strong v Woolworths, supra.
If Mr Allred had disengaged the propeller, and if the propeller had simply made contact with the plaintiff's leg by reason of the force of water current causing it to turn, any resultant injury would most probably have been minor, in the nature of de minimis non curat lex. It is not necessary to further consider this possibility because if Mr Allred had followed proper standard procedure and enabled the plaintiff to re-board from the starboard side, any such inadvertent contact with the propeller would not have occurred.
The defendants have not satisfied the mandatory requirement of s 5B(1)(a) of the CL Act to sustain a contributory negligence defence. In that sense, I find that the negligence of Mr Allred was 100% responsible for the plaintiff's injury, without any percentage of contribution from the plaintiff's actions. Accordingly, I reject the defence alleging that there was contributory negligence on the plaintiff's part.

[58]

Issue 9 - Obvious risk and dangerous recreational activity

The pleaded defence of obvious risk claimed that the plaintiff was engaged in a dangerous recreational activity requires consideration. The defence of obvious risk involves a series of inter-related statutory provisions: ss 5F, 5G, 5K, 5L and 5M of the CL Act.
Section 5F of the CL Act provides: "5F Meaning of "obvious risk" (1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."
Section 5G of the CL Act provides: "5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk."
Section 5K of the CL Act provides: "5K Definitions In this Division - dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. obvious risk has the same meaning as it has in Division 4. recreational activity includes - (a) any sport (whether or not the sport is an organised activity), and (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure."
Section 5L of the CL Act provides: "5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ("the defendant") is not liable in negligence for harm suffered by another person ("the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk."
If the plaintiff was engaged in a dangerous recreational activity then the effect of s 5M(1) of the CL Act is to disapply any duty of care that the first defendant might have otherwise owed to the plaintiff if the plaintiff had been warned of a risk involved in the activity.
Section 5M of the CL Act provides: "5M No duty of care for recreational activity where risk warning (1) A person ("the defendant") does not owe a duty of care to another person who engages in a recreational activity ("the plaintiff") to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if - (a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or (b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent). (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in. (7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person. (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant. (10) The fact that a risk is the subject of a risk warning does not of itself mean - (a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity. (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity. (12) In this section - "incapable person" means a person who, because of the person's young age or a physical or mental disability, lacks the capacity to understand the risk warning. "parent" of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person."
In light of my finding that the plaintiff was not given an oral warning or had his attention drawn to any warning signage as contemplated by s 5M(3), (4) and (5) of the CL Act, s 5M does not operate to disentitle the plaintiff to claim damages for his injuries.
The first defendant claims the plaintiff came into contact with the propeller and sustained injury as a result of an obvious risk. Although the first defendant relied upon the defence of obvious risk within the meaning of s 5K of the CL Act, which appears in Division 5 of that Act, as that section defines "obvious risk" to have the same meaning as appears in Division 4 of the Act, for completeness, it becomes relevant to examine whether the defence of obvious risk within the meaning of ss 5F and 5G of the CL Act is available to the defendants in this case.
In my opinion the defence of obvious risk within the meaning of Division 4 of the CL Act is not available to the defence in this case for the following reasons.
First, at the time the plaintiff dived into the water, he had no intention of placing himself anywhere near the propeller of the vessel. Secondly, for as long as he kept himself clear of the vessel, he did not court or invite any obvious risk of harm from the submerged propeller. Thirdly, it was the second defendant who juxtaposed the vessel and its activated propeller to where the plaintiff was located in the water. He did so in such a manner that in order to re-board the vessel the plaintiff had to swim past the submerged and operating propeller in the hazard zone.
I find that on the balance of probability, at the time the plaintiff swam towards the ladder at the stern of the vessel he was not aware of the risk of coming into contact with the moving propeller because he could not see it, or see evidence of it operating, and he was entitled to assume that it was not operating as he did not hear any relevant noise and saw no turbulence from the propeller. Therefore, the circumstances did not constitute a foreseeable risk to a reasonable person in his position at that time.
In my view the defence based on s 5L of the CL Act does not apply in the circumstances of this case because the plaintiff was not engaged in recreational activity, dangerous or otherwise, within the meaning of s 5K of the CL Act.
That is so because the definition of recreational activity contains three cumulative elements as identified in s 5K(a), (b) and (c) of the Act.
None of those factual elements apply in the plaintiff's circumstances. He was not engaged in a sport. The activity of diving into the water to retrieve the hat was not an engagement in enjoyment, relaxation or leisure. The fact that the events occurred in a place where people ordinarily engage in sport or activity for enjoyment, relaxation or leisure, of itself, without the inclusion of the other two elements identified in s 5K(a) and (b), indicates the defence of materialisation of an obvious risk of a dangerous recreational activity as provided by s 5L of the CL Act, is not available to the defendants in this instance.
In my opinion, section 5K does not operate as a defence to the plaintiff's claim. In my view, retrieving a windblown hat from the water should not be characterised as a dangerous recreational activity in this case. The activity in which the plaintiff was engaged, namely diving from the vessel to retrieve a hat, and then re-boarding the vessel could have been dangerous if due care was not taken, and if he could not swim because his capacity to swim had been so impaired by the substances he had taken. However, the evidence does not demonstrate that to have been so.

[59]

Issue 10 - Defence of Intoxication

The first defendant claims the plaintiff was intoxicated at the time of the accident and therefore submitted that fact should operate as a defence to this claim. Section 48 of the CL Act provides: "48 Definition of "intoxication" 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)."
The pharmacological opinion of Dr Robertson serves to satisfactorily establish that the plaintiff was under the influence of alcohol and cocaine at the time of his injury. However, those facts of themselves do not provide the defendants with a defence to the present claim. A consideration of s 50 of the CL Act is required for such a defence to apply.
Section 50 of the CL Act provides: "50 No recovery where person intoxicated (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."
In my opinion, the plaintiff's injury could have occurred even if he was not intoxicated: s 50(2) of the CL Act. That is so because it was the second defendant's action in positioning the vessel near the plaintiff and leaving the engine and the propellor to operate in reverse which had the effect of disguising the water turbulence from the turning propellor that injured the plaintiff.
In my opinion, for the reasons identified in the preceding paragraph, the plaintiff's intoxication did not contribute to his injury: s 50(3) of the CL Act.
Whilst the pharmacological evidence of Dr Robertson raises the possibility of the plaintiff's impairment and the consumption of alcohol, in my opinion that evidence falls well short of establishing that the plaintiff was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired: s 50(1) of the CL Act.
That finding is supported by the fact that the plaintiff was able to successfully dive in the water and retrieve the hat without difficulty, and then swim to the vessel and climb aboard by using the ladder at the stern. Nothing in those events bespeaks any impairment due to intoxication on his part. On the evidence, it is not necessary to try to calculate the plaintiff's blood alcohol content using the different parameters adopted in the submissions of the parties. The fact he was injured by the rotating propeller was due to his unawareness the engine was engaged, which meant that the propeller was turning under power. Therefore, subsections (4) and (5) of s 50 of the CL Act do not apply in this case. Accordingly, I reject the claimed defence of intoxication.

[60]

Issue 11 - Application of the Australian Consumer Law

The plaintiff seeks to imply statutory warranties as provided by the ACL.
The plaintiff claims that the first defendant was providing a service. "Services" are defined in the ACL as follows: ""services" includes: (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and (b) without limiting paragraph (a), the rights, benefits, privileges, or facilities that are, or are to be, provided, granted or conferred under: (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or (iv) a contract of insurance; or (v) a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or (vi) any contract for or in relation to the lending of money; but does not include rights or benefits being the supply of goods or the performance of work under a contract of service."
The plaintiff claimed he was a consumer within the meaning of s 3 of the ACL as he had acquired the services for personal consumption: s 3(3).
He takes that position because the amount of his share of the hiring fee, which he paid to Mr Tooth, namely $75, did not exceed $40,000: s 3(3)(a)(i) of the ACL. He therefore claims to be entitled to the statutory presumptions provided by s 3(10) of the ACL, and he claims that the first defendant has not discharged his onus of showing otherwise: Jefferson Ford Pty Ltd v Ford Motor Co [2008] 167 FCR 372, at [90]-[102].
Section 60 provides a consumer with a guarantee that the services supplied will be rendered with due care and skill. The terms of s 60 are as follows: "60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill."
The first defendant denies he agreed to provide the plaintiff with services within the meaning of the ACL and denies the plaintiff was a relevant consumer.
In my view, the first defendant's denial as to the applicability of the ACL has substance in that the agreement to provide the services in question was between Mr Payne and Mr Tooth on behalf of unnamed members of a group and not specifically with the plaintiff. The subsequent agreement between Mr Tooth and the other participants must be seen to be separate from the services which Mr Payne agreed to provide to Mr Tooth, and which Mr Payne delegated to Mr Allred.
In those circumstances, in my view, the plaintiff is unable to successfully invoke the statutory warranties that he claims as against the first defendant in respect of that defendant's vicarious liability for the acts, neglects and defaults of Mr Allred. Accordingly, the plaintiff's claim under the ACL must fail.

[66]

Dr Keller - Occupational Physician

On 6 September 2021, at the request of Mr Payne's solicitor, the plaintiff was assessed by Dr Andrew Keller, an occupational physician in a Zoom teleconference which meant the physical examination component of the assessment was somewhat limited compared to the more detailed assessment carried out by Dr Porteous. Dr Keller issued his report of that examination on 7 September 2021: Exhibit D1, Tab 12, pp 444 - 456.
Dr Keller's report concerning the plaintiff's presenting problems was in my view heavily qualified by his use of the opaque general adjective description of "significant". This rendered his opinion difficult to interpret, especially as he seems to have based his opinion "entirely upon the objective findings today" (p 445), which suggests he has placed little if any weight or credence upon the plaintiff's subjective complaints of pain, discomfort and restricted activity. It is not clear as to what Dr Keller regarded as "significant" in determining the plaintiff's "persisting knee pain". For that reason, I discount Dr Keller's opinions and prefer those of Dr Porteous instead.
In that regard, Dr Keller's comment that the plaintiff "appeared" to have minimal restriction of flexion in the right knee seems to be of limited value as the examination of the plaintiff was not carried out with "hands on" and in person. Dr Keller's comment which referred to the plaintiff not having any "significant" weakness in his leg requires discount for the same reason, as does his conclusion that it "is likely that he could return to some level of walking and/or running and may return to climbing in a graduated fashion" (p 450). It is difficult to interpret that statement in view of its adjective qualifying preface. I consider Dr Keller's stated prognosis for likely full recovery to be in the same discounted category.
I consider that Dr Keller's opinion to the effect that he could see no evidence of lasting pathology to the plaintiff's left knee that could be expected to deteriorate, should not be accepted as it failed to engage with Dr Porteous' opinion that post-traumatic changes can be expected in the future. Similarly, I discount Dr Keller's opinion that the plaintiff has "no formal work restrictions" (p 452) and no need for future treatment (pp 453 - 455) and his opinion (at p 455) that the plaintiff will not need any future domestic assistance. There are inadequately reasoned and therefore unacceptable sweeping statements in the form of the ipse dixits that were the subject of criticism in Makita (Australia) Pty Ltd v Sprowles, supra.

[68]

Disabilities that remain

As I have found the plaintiff to be a credible witness, in addition to the matters referred to in his oral evidence, I propose to treat his complaints of disability as recorded by the reviewing medical assessors as evidence of his ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [70]; s 60, Evidence Act 1995 (NSW).
The plaintiff underwent extensive and painful physiotherapy to regain strength in his leg. He was off work for about 3 months during his post-injury rehabilitation. In that time, he needed assistance with some domestic and personal care tasks.
The plaintiff continues to experience knee pain on most days. Walking on uneven ground is difficult for him. He cannot squat. He walks with a limp and his walking tolerance is limited. He can no longer engage in his favoured sporting past times of golf, surfing and rock climbing. He has altered gait and spine problems. He continues to pursue alignment treatment with a chiropractor.
The plaintiff's ongoing disabilities include slight wasting of the muscles of the left thigh; an 11cm purple discoloured and disfiguring scar to the anterior left leg with some areas of keloid depression, an area of hypersensitivity and changed sensation to his anterior left lower leg which has raised the suggestion of the presence of a neuroma; a reduced range of motion in the left knee, with pain and tightness.
The plaintiff walks with a slight limp which causes him to experience back pain and he favours his left leg because of difficulties with weight bearing. He can no longer run without experiencing discomfort. He has restrictions in activities requiring frequent or constant kneeling or crouching. He is restricted with activities requiring heavy lifting, pushing, pulling, or carrying. He faces the likelihood of developing post traumatic osteoarthritis in his left knee and related likely left knee replacement surgery. He also faces further restriction in his activities such as kneeling, crouching, walking and standing as his condition deteriorates with age.
These disabilities, which I accept, do not support the conclusions expressed by Dr Keller and Dr Vote as to the plaintiff's fitness and fitness for work, and I therefore reject their opinions that are to the contrary.
The plaintiff had some pre-accident problems with depression and anxiety when he was in a relatively dark place, as he described it. He obtained treatment for these problems. They substantially resolved. The effects of the subject accident would sometimes cause him to experience dark days in addition to any underlying pre-disposition to anxiety and depression. Those matters did not feature large in the evidence and there is no sound basis for inferring that the plaintiff's anxiety and depression was materially exacerbated by the effects of the accident. However, in that regard, the defendants must take the plaintiff as he is found.

[73]

Past economic loss

On behalf of the plaintiff, it was submitted that his damages for past economic loss should be assessed in the buffer amount of $35,000. The first defendant conceded that the plaintiff was entitled to damages for past economic loss during the period he was unable to work as a result of his injuries. The conceded amount was of the order of $20,000.
The plaintiff's claim for past economic loss comprises two elements. First, the loss of income during the initial post-accident period of recuperation, as conceded by the first defendant, and secondly, the diminution in his earning capacity since April 2022, which is the time when the plaintiff left his pre-accident employment in order to set up his own business.
In assessing the plaintiff's loss of earning capacity generally it must be recognised that the level of his pre-accident earnings did not necessarily reflect his earning capacity because after the accident his income increased by reason of pay increases, some overtime, and other benefits.
In the period of a few weeks since April 2022, and up until the hearing, the plaintiff set up his own business, incurring costs of the order of $45,000 for a mobile workshop, with limited other overheads. That undertaking included the plaintiff's involvement in contracts involving 3 pool installations in association with another company belonging to a friend. There is no direct evidence of loss of income between April and May 2022. The evidence does not permit a monetary assessment of any loss of income for the limited period between April and May 2022.
The evidence of his post-injury absence from work was imprecise, this being "around the three months": T54.25. In his time off work he received Centrelink benefits and took a payout of $16,000 from his superannuation to "stay afloat". The first defendant concedes that the net loss for that period should be in the vicinity of $20,000.
That assessment was based on an assumed annual salary of $70,000 gross, noting that in the pre-accident year, his taxable income was $71,882 (Exhibit A, p 726; T72.33), which, after deduction of tax assessed at $14,908.65, resulted in net earnings of $56,974, or $1,095 per week net.
In March 2021, the plaintiff's income increased to $80,000 per annum gross: T72.37. This was because by then he had acquired two new licenses for instrument verification and for driving trucks after pursuing further courses and study. The plaintiff was on a salary of $80,000 per annum or $1,538 per week before tax by the time he left his job to set up his own business.
In light of the evidence summarised above, the first defendant's concession in respect of past economic loss and past loss of earning capacity seems patently reasonable. In my view, the plaintiff's claim for past loss of earnings should be assessed as being limited to the post-accident closed period during which he was unable to work and along the lines submitted by the first defendant. I assess the plaintiff's damages for past economic loss in the amount of $20,000.

[74]

Future economic loss

The evidence does not identify a specific continuing weekly economic loss in the form of a sum that is capable of actuarial projection over the plaintiff's remaining working life. Nevertheless, the plaintiff has suffered and will continue to suffer a significant and undoubted impairment in his future earning capacity.
To establish entitlement to damages for future loss of earning capacity the plaintiff must show that his reduced capacity is likely to be productive of a financial loss: Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; (1995) 127 ALR 180; (1995) Aust Torts Reports 81-322; [1995] HCA 5.
Pre-accident, the plaintiff had specialised technical skills associated with installing and maintaining heavy vehicle weighbridges. This work at times involved working in confined spaces in awkward conditions, including crawling into spaces in underground pits. He also had skills that involved working on rooves to install solar heating systems for pools. He had no restrictions or limits on the exercise of an earning capacity that required his physical strength and dexterity. That position changed significantly after his injury.
Dr Porteous has identified the plaintiff as having a reduced capacity for work as a result of his ongoing disabilities. In that regard, he requires an assistant with some significant commonplace work tasks. He undoubtedly has a reduced capacity to compete for employment on the open labour market. Furthermore, his condition is likely to deteriorate to the point where he will only be able to undertake light sedentary work.
After returning to work following the accident, the plaintiff experienced difficulty in carrying out some of his previous work tasks, and he therefore required the provision of assistance with those tasks: T54.44; T55.1. That position is unlikely to improve.
Those tasks involved walking on uneven ground, with and without equipment; difficulty pushing trolleys laden with heavy equipment; inability to climb ladders; inability to carry or manipulate heavy components; difficulty standing for prolonged periods; favouring the right leg when walking with loads; driving manual vehicles causes him difficulty, as does the effect of long drives which he undertakes for his work.
All of these changes in his abilities and the limitations involved represented a significant impairment in his ability to work and justify a significant award for future loss of earning capacity. His earning capacity, uninjured, was a significant capital asset. His impaired earning capacity requires that he be compensated for the described change to his earning capacity.
In the circumstances, the appropriate approach is to make a significant allowance for this head of damage by way of a buffer sum: Paff v Speed (1961) 105 CLR 549, at 566 Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133, at [72]. Such an allowance may be substantial in an appropriate case: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, at [33] - [45]; [50]. In my view, this is an appropriate case for an approach along these lines.
On behalf of the plaintiff, it was submitted that damages for future economic loss should be assessed in the buffer amount of $250,000. In contrast, the first defendant conceded $50,000 as being the appropriate amount for this head of damage.
At the age of 31 years, the plaintiff has a remaining working life of at least 36 years, if not more, in which to bear the burden of his restricted earning capacity. One of the vicissitudes to be taken into account, not only against the plaintiff, but also against the defendants, is the possibility that the plaintiff may not be able to sustain self-employment as his condition deteriorates and because he needs assistance with some work tasks. If his new business fails, he will be at a great disadvantage in competing for employment on the open labour market.
In those circumstances, I consider a substantial compensatory buffer is required to reflect the impairment in the plaintiff's future earning capacity.
I therefore assess the plaintiff's damages for future loss of earning capacity in the buffer amount of $200,000.

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