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

District Court

New South Wales

Medium Neutral Citation: Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor [2022] NSWDC 246
Date of orders: 5 July 2022
Decision date: 05 July 2022
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraph [295] for orders

Catchwords:
TORTS – negligence – marine accident – plaintiff injured in the water when a propeller under power came into contact with his left leg whilst he was re-boarding a vessel after retrieving a hat from the water – finding that the master of the vessel was negligent – finding that the owner of the vessel is vicariously liable for the master’s negligence – rejection of defences claiming volenti non fit injuria; obvious risk in relation to dangerous recreational activity; intoxication; contributory negligence – rejection of claim made pursuant to Australian Consumer Law in respect of statutory warranties
DAMAGES – assessment of claimed heads of damage pursuant to the provisions of the Civil Liability Act 2002 (NSW)

Legislation Cited:
Australian Consumer Law (Cth), ss 3, 60 and 67
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5F, 5G, 5K, 5L, 5M, 5R, 5S, 13, 15, 16, 48 and 50
Evidence Act 1995 (NSW), s 60
Law Reform (Vicarious Liability) Act 1983 (NSW), s 7
Marine Safety Act 1998 (NSW), s 13

Cases Cited:
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Huynh v Minh Truong and Thi Thu Hoang Pham t/as Le Bon Bakehouse [2018] WADC 39
Jefferson Ford Pty Ltd v Ford Motor Co [2008] 167 FCR 372
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Medlin v State Government Insurance Commission (1995) 182 CLR 1; (1995) 127 ALR 180; (1995) Aust Torts Reports 81-322; [1995] HCA 5
Miller v Miller [2011] HCA 9
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2002) 205 CLR 254; [2002] HCA 61
Paff v Speed (1961) 105 CLR 549
Penrith City Council v Parks [2004] NSWCA 201
Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Rootes v Skelton [1967] HCA 39; (1967) 116 CLR 383
State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Jones v Dunkel (1959) 101 CLR 298

Category: Principal judgment
Parties: Plaintiff: Adam Liccardy
First Defendant: Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd
Second Defendant: Derek Wayne Allred
Representation:
Counsel:
Plaintiff: Mr A Campbell
First Defendant: Mr I Griscti
Second Defendant: Mr D Eardley (24 May 2022) and then no appearance thereafter
Solicitors:
Plaintiff: Law Partners Compensation Lawyers
First Defendant: James Tuite & Associates
Second Defendant: PJ Carey Solicitor

File Number(s): 2021/101380
Publication restriction: None

Judgment

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]

Nature of case and parties

These personal injury damages proceedings claiming negligent navigation arise out of a marine accident which occurred on 25 January 2020 during a leisure outing on the water at Sussex Inlet, New South Wales. The proceedings invoke the liability and damages schemes within the provisions of the Civil Liability Act 2002 (NSW) (“CL Act”) and the consumer protection provisions of the Australian Consumer Law (Cth) (“ACL”).
The accident occurred when the plaintiff, Adam Liccardy, dived into the water from a moving motorised vessel described as a pontoon to retrieve a hat blown into the water by the prevailing strong wind. Whilst re-boarding the vessel using a fixed ladder at the stern his left lower leg and knee became injured when he came into contact with the submerged propeller of the vessel’s outboard motor.
The vessel was owned and operated by the first defendant, Daniel Payne, a sole trader trading under the business name Sussex Inlet Pontoons Pty Ltd. At the time of the accident, and at the behest of the first defendant, the vessel was under the control of the second defendant, Derek Allred, as master. The plaintiff claims Mr Allred was Mr Payne’s employee or agent. Mr Payne contests that claim.

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:

[Exhibit A, Vol 3, p 970]

The plaintiff was given immediate first aid by two members of the group using a towel with a rope serving as a tourniquet. The vessel was driven to a nearby jetty. An ambulance met the vessel there, and the plaintiff was promptly taken to Shoalhaven Hospital for emergency treatment. He later had a series of operations to repair his severely damaged leg.
Pursuant to s 13 of the Marine Safety Act 1998 (NSW), the second defendant was subsequently convicted on a charge of negligent navigation in relation to the incident. At the hearing of the present proceedings the first defendant said that as a result of that conviction, he felt that he was unable to employ the second defendant in his business.

Factual matters in dispute

There is a factual dispute as to whether, on the evidence, a relevant relationship of employment or agency and vicarious liability existed between the first and second defendants. There are also disputes as to what liability consequences should follow from the plaintiff’s action of diving into the water having regard to his earlier consumption of alcohol and from his use of cocaine.
As to the circumstances surrounding the accident itself, the essential factual questions in dispute are whether the plaintiff had informed the second defendant of his intention to dive into the water before doing so, and whether whilst re-boarding the vessel, the engine was on and the propeller was engaged and turning under motive power at the time of the injury.
The first defendant relied upon defences denying negligence, alleging voluntary assumption of risk, contributory negligence, and raised the CL Act defences of intoxication, the alleged existence of an obvious risk, and the plaintiff’s alleged engagement in dangerous recreational activity which, it was claimed, involved the materialisation of an obvious risk. All of those defences were contested by the plaintiff.

In addition to framing his case against the defendants in negligence, as against the first defendant the plaintiff also relies upon statutory warranties claimed to arise pursuant to the consumer protection provisions of ss 60 and 67 of the ACL. The first defendant contests the applicability of those provisions to the facts of this case.

Issues

On my review of the pleadings, the evidence, the submission of the parties, and the applicable legal principles, the essential issues for determination in this case may be conveniently identified in the following order:

Findings on matters of fact in dispute;

The legal characterisation of the relationship between the first defendant and the second defendant, including whether employment, agency, and vicarious liability have been established;

Identification of the relevant risk of harm for the purposes of the consideration of the application of s 5B of the CL Act;

The scope and content of the duty of care owed by the respective defendants;

Whether, by his actions, the plaintiff voluntarily assumed the risk of injury;

Whether the plaintiff has satisfactorily proven that either of the defendants had breached the duty of care owed to him so as to sustain a finding of negligence against them according to the requirements of s 5B of the CL Act;

Whether, in terms of s 5D of the CL Act, the plaintiff’s injuries were relevantly caused by the negligence of the defendants;

Whether and to what extent there was contributory negligence on the part of the plaintiff, and whether such contributory negligence was a relevant cause of the plaintiff’s injury;

Whether the plaintiff’s injuries occurred as a result of the materialisation of an obvious risk per se within the meaning of ss 5F and 5G of the CL Act, and whether the plaintiff had allegedly engaged in a dangerous recreational activity that resulted in the materialisation of an obvious risk within the meaning of ss 5K and 5L of the CL Act;

Whether the plaintiff was intoxicated so as to engage an application of the statutory defences the first defendant raised pursuant to ss 48 and 50 of the CL Act;

Whether the consumer protection provisions of the ACL apply to the circumstances as claimed by the plaintiff;

The assessment of the plaintiff’s entitlement to damages.

Evidence overview

The plaintiff prepared a 3 volume Court Book (Exhibit A, pp 1 – 1056). The first defendant prepared a 1 volume Court Book (Exhibit 1, pp 1 – 464). This included video footage of the incident. Reference will be made to the content of those materials where relevant. The material in the Court Books includes a series of non-contemporaneous investigatory statements prepared in relation to the prosecution of the second defendant.
Whilst some of the witnesses who gave statements in the course of the RMS investigation were called and cross-examined in these proceedings, others were not called, and their statements were therefore not tested by cross-examination. In those circumstances, the latter category of statements was assessed as being of lesser weight on critical matters in dispute compared to the direct oral evidence which was tested.
Oral evidence was given by the plaintiff on the liability and damages issues (T31 – T83; T108 – T109). Oral evidence was also given by Dirk Benade, the operations manager of Weigh‑More Solutions, the plaintiff’s workplace at the time of the accident, (T89 – T93); Mrs Jeanette Bury, the plaintiff’s mother, who is also the sole director of Weigh‑More Solutions (T94 – T99); Mr Jayde Tooth, the organiser of the outing on the day of the accident (T101 – T106); and Mr Daniel Payne, the sole director of the first defendant company, Sussex Inlet Pontoons Pty Ltd (T110 – T121).
The second defendant filed an appearance and a defence in the proceedings, but he only appeared by means of the brief presence of his counsel on the first day of the hearing, and not thereafter. Neither he nor his legal representatives took any other active part in the proceedings despite being aware that the case was proceeding.

Credibility and reliability of oral testimony

In the paragraphs that follow, I set out my impressions concerning the credibility and reliability of the witnesses who gave oral evidence.

The plaintiff

The plaintiff’s evidence on the liability and damages issues in dispute will be referred to in the necessary detail when considering those issues. At this point it is appropriate to state that I was impressed with the stoic reasonableness of the plaintiff’s evidence and the open manner in which he answered questions. He gave due consideration to his responses. Without hesitation, he made fair concessions when these were due, including concessions that were in some parts against his interests in the litigation. I considered him to be a credible witness and I have accepted his evidence in its entirety.

Mr Benade

Mr Benade was the service manager of the plaintiff’s former employer Weigh-More Solutions. He was the person who, seven years earlier, had engaged the plaintiff’s services as a service technician. He spoke highly of the plaintiff’s technical skills. He described having to make work adjustments on account of the plaintiff’s reduced post-injury physical capacity before the plaintiff left the employment of Weigh-More Solutions to start his own business shortly before the hearing. He confirmed the plaintiff had good inter-personal skills in his dealings with customers and that he was intelligent and articulate. There were no challenges to Mr Benade’s evidence. I found Mr Benade to be a credible witness and I have accepted his evidence.

Mrs Bury

Mrs Bury is the plaintiff’s mother. Notwithstanding that relationship, I consider that she gave her evidence with restraint and objectivity. She is now the sole director of Weigh-More Solutions, the company that employed the plaintiff at the time of his accident. She had observed his advancement in the job since the age of 17 years. The business is specialised, and the plaintiff developed valuable skills in that business. Before the plaintiff’s accident she had hoped he would take on a greater or senior management role, or take over the business at some future date.
Mrs Bury described the plaintiff’s post-injury return to work as being on extremely light duties compared to his pre-accident duties. She described his departure from this employment with the company with some regret as it left a skills gap within the company. She accepted that it was necessary for the plaintiff to leave his position with the company as the work was taking a toll on him, including with regard to him experiencing depression. The plaintiff’s history of pre-accident anxiety and depression was not explored in her evidence. She understood that he left his employment because he felt he was letting the company down. She said that, in the circumstances, she understood his decision to leave in order to set up his own business. I found Mrs Bury to be a credible witness. Her evidence was not the subject of material challenge and I have accepted her evidence.

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.

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.

Absence of evidence from Mr Allred

Mr Allred filed a formal appearance and a defence as the second defendant in the proceedings. He also filed a defence to the plaintiff’s amended statement of claim on 23 May 2022 at 4:08pm, this being the afternoon prior to the commencement of the hearing. He had retained a solicitor and counsel to appear for him in the proceedings. His counsel appeared for a short time during the course of opening addresses on the first day, and he then left the courtroom. The second defendant’s solicitor did not attend the hearing at any stage. No evidence was called or tendered to support the second defendant’s defence.
The unexplained absence of the second defendant from the proceedings meant that there was no challenge to the plaintiff’s evidence on factual matters that Mr Allred might have been expected to comment upon if there was a basis for any challenges. I infer from Mr Allred’s absence that it was unlikely that he could have contradicted the factual account given by the plaintiff where that account was not otherwise inherently or glaringly improbable: Jones v Dunkel (1959) 101 CLR 298.
Mr Allred was interviewed at length by the RMS appointed investigator. That record of interview is in evidence in these proceedings as an annexure to the investigator’s statement: Exhibit A, Vol 3, pp 974 – 1046.

Review of documentary evidence as to liability

In the paragraphs that follow I set out a review of the material documentary evidence located within the Court Books.

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:

He failed to provide an appropriate pre-departure safety briefing;

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;

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;

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;

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;

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;

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.

Report of Dr Michael Robertson – pharmacologist

For his defence, Mr Payne relied upon an expert forensic toxicology and pharmacology opinion of Dr Michael Robertson. The opinion was dated 7 March 2022: Exhibit D1, Tab 11, pp 416 – 443. Dr Robertson annexed his CV (pp 428 – 435) and the several letters of instruction that had been provided to him for the purpose of preparing his report (pp 436 – 443). There was no issue as to his qualifications, experience, or professional expertise.

In essence, Dr Robertson was of the opinion that at the time of the accident, the plaintiff had a blood alcohol concentration of at least 0.05 if not 0.11 depending on the strength of the beer he had consumed. He concluded from those estimates that it was more likely than not the plaintiff was impaired by the effects of his prior alcohol consumption in combination with his use of cocaine. He expressed the general opinion that it was likely the plaintiff was experiencing mild euphoria, sociability, increased self-confidence, with decreased inhibition. He concluded this was likely to be associated with a reduction in the exercise of care and caution on his part.
Dr Robertson also concluded that depending upon the level of blood alcohol concentration, it was possible the plaintiff had mild muscular incoordination that may have reduced his coordination and skill, which he said may have contributed to the circumstances of the plaintiff coming into contact with the propeller. I considered the latter view involved undue and unsupported speculation.
Whilst Dr Robertson’s opinions were relevant, and within his area of expertise, those opinions require evaluation as to their acceptability in his case: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.

First defendant’s business documents

A number of documents in the first defendant’s Court Book related to his pontoon hire business.

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).

Rules for the Party Pontoon

The vessel carried a sign onboard which set out 8 rules for its use, the eighth of which stated: “8. ALL GUESTS TO REMAIN INSIDE THE BOAT AT ALL TIMES WHILST BOAT IS IN MOTION”: Exhibit D1, Tab 2, p 2. There is no evidence that the plaintiff saw or acknowledged the existence of that rule before he dived from the vessel.

Safety Management Plan for Sussex Inlet Pontoons

Mr Allred was familiar with the terms of the Sussex Inlet Pontoons Safety Management Plan: Exhibit D1, Tab 10, pp 407 – 415. That document stated the obvious, namely that the master would carry ultimate responsibility for the passengers and the navigation and operation of the vessel (p 407); risks including in dealing with persons overboard, should be approached with common sense (p 408); the persons overboard procedures should be implemented, including fixing the location of the person in the water, informing passengers of the need to look out, to throw out a life jacket, and to commence safe rescue manoeuvres and retrieval.

Witness statements

The first defendant relied upon a series of investigatory statements that had been prepared for the prosecution of Mr Allred by Roads & Maritime Services.

Witness statement of Bruce Mitchell

Mr Bruce Mitchell, the Transport, Roads & Maritime Services Marine Rescue NSW Regional Operations Manager for the Illawarra region prepared a witness statement with annexures on 29 July 2020. That statement was made in preparation for the hearing of the negligent navigation charge against Mr Allred: Exhibit D1, Tab 3, pp 4 – 183.
Mr Mitchell identified the applicable principle of safety in instances where a person has gone overboard. The requirement was that the person in charge of the vessel must be vigilant in relation to the position of the person in the water at all times, and not place the person in the water near the propeller of a vessel and must keep the person in the water on the starboard side of the vessel and maintain constant vision when manoeuvring the vessel around that person.
Mr Mitchell confirmed from records that on 12 October 2015, Mr Allred obtained a Marine Rescue Crew certificate, and on 27 May 2016 he was officially observed to have competently completed a “man over-board” retrieval.
Mr Mitchell annexed a copy of an application form to his statement, apparently completed by Mr Allred, in which Mr Allred described himself as an engineer: Exhibit D1, Tab 3, p 163.
Mr Mitchell cited records to show that on 12 December 2014, Mr Allred was assessed as being appropriately skilled in dealing with persons overboard procedure, and he was certified as having fulfilled the requirements for his Marine Rescue NSW rating: Exhibit D1, Tab 3, pp 171 – 172.

Witness statement of William Mountford

Mr William Mountford, the Director of Jervis Bay Sea School since 2014, prepared a witness statement with annexures on 27 July 2020. That statement was made in preparation for the hearing of the negligent navigation charge against Mr Allred: Exhibit D1, Tab 4, pp 185 – 382.
Mr Mountford stated that in November 2019 he took part in a certification process in relation to the training Mr Allred received in Marine Safety procedures. That aspect of training covered extraction from the water procedures. This included not placing the engine in astern when rescuing a person in the water; and the need to maintain vision of the person in the water; not to allow the person in the vicinity of the engine; and the possible need to retake the turning of the vessel for a safe rescue manoeuvre. Mr Allred was assessed as having completed the required tasks to the appropriate standard, albeit having demonstrated some resistance to learning aspects of the required procedures.
Mr Mountford cited records which showed that on 27 November 2019, Mr Allred was issued with a Sea School International certificate of satisfactory completion involving an “Exemption 38 Marine Safety (Low Complexity Duties) Exemption 2019” boating licence: Exhibit D1, Tab 4, p 200.

Witness statement of Julia Cross

Ms Julia Cross, a co-trainer at Sea School Jervis Bay prepared a witness statement. That statement was made in preparation for the hearing of the negligent navigation charge against Mr Allred: Exhibit D1, Tab 5, pp 394 – 396. She described her participation, in conjunction with Mr Mountford, in training Mr Allred in person overboard procedures on 15 November 2019. She identified the applicable procedure as being first, the propellers must be turned away from the person overboard, downwind at least 2 – 3 boat lengths away, before adjusting speed and then placing the engine in neutral before reaching the person overboard, without losing sight of the person, and redoing the turning procedure if necessary, in the interests of safety before approaching and providing a flotation life ring to assist the person overboard.

Witness statement of Daniel Payne

On 25 March 2020, the first defendant, Daniel Payne, signed a witness statement that had been prepared for the hearing of the negligent navigation charge against Mr Allred: Exhibit A, Vol 3, pp 911 – 913.
In his statement, Mr Payne confirmed that his friend, Mr Tooth, had made the booking and made the deposit for the hire. He also confirmed that he arranged for Mr Allred to master the vessel due to his own unavailability. He did not recall seeing Mr Allred on the day he collected the vessel, although he said he used to see him on a daily basis. His statement said, “Wayne is not an employee of Sussex Inlet Pontoons but he helps us out driving for the business when required” without payment. That statement raises a dispute which will be determined in the consideration of Issues 1 and 2.

Witness statement of Jayde Tooth

On 8 April 2020, Jayde Tooth, a horticulturist, signed a witness statement with annexures that had been prepared for the hearing of the negligent navigation charge against Mr Allred: Exhibit A, Vol 3, pp 915 – 923.
Mr Tooth confirmed he had paid Mr Payne a deposit of $200 to secure the booking which was limited to 10 passengers. He described how Mr Allred greeted him on the day at the agreed meeting point instead of Mr Payne. He stated that Mr Allred did not give anyone in the group a safety briefing before departure, and he did not receive any documents outlining any rules for the charter, nor did he see any safety-related signage.
Mr Tooth saw the wind blow the hat into the water and he then saw the plaintiff dive into the water to retrieve the hat. He said he did not hear or see the plaintiff have a conversation with Mr Allred before the dive and claimed if there was such a conversation it could have been heard. That latter aspect of his evidence seemed to be of doubtful correctness given that the atmosphere on the vessel was noisy and given the effects of the prevailing wind, which he described as increasing at 15 – 20 km per hour from the East South East direction.
Mr Tooth described having given first aid to the plaintiff together with Mr Dale Berry, who had been filming the plaintiff in the water until the injury became evident. The annexures to his statement comprised diagrams and a photograph of the vessel in question.

Witness statement of Karl McCarthy

On 8 April 2020, Mr Karl McCarthy, who worked in the field of floor technology, signed a witness statement with annexures that had been prepared for the hearing of the negligent navigation charge against Mr Allred: Exhibit A, Vol 3, pp 924 – 934.
Mr McCarthy was one of the members of the charter party on the day in question. He described the prevailing wind on the water on that day as “howling” from East South East. He also described the music level as being “as loud as it could be” and he was well please to say this as he was in control of it. He saw the plaintiff “jump” overboard to retrieve the hat. He said he had not seen or heard any conversation taking place between the plaintiff and Mr Allred before the plaintiff entered the water. However, he saw Mr Allred change the direction of travel of the vessel following which both he and Mr Allred lost sight of the plaintiff in the water.
Mr McCarthy had observed the plaintiff to have two “pretty bad” deep cuts, just under his left knee. His statement annexed some diagrams and a photograph of the vessel. He made the observation that to him, the plaintiff’s cuts “don’t look like he banged his leg up against something”. He said the leg looked like it had been sliced open by something sharp.

Witness statement of Mitch Keogh

On 18 April 2020, Mr Mitch Keogh, a plumber, signed a witness statement with annexures prepared for the hearing of the negligent navigation charge against Mr Allred: Exhibit A, Vol 3, pp 935 – 943.
Mr Keogh described how the hat had been blown into the water whilst he was talking with the plaintiff. He described seeing the plaintiff dive into the water after the hat. He said he did not hear the plaintiff say anything to anyone beforehand. He said the music was on and expressed the opinion that it was not so loud due to the effect of the wind. His statement annexed some diagrams and a photograph of the pontoon.

Witness statement of Dale Berry

On 28 April 2020, Mr Dale Berry, a company director, signed a statement, with annexures, prepared for the hearing of the negligent navigation charge against Mr Allred: Exhibit A, Vol 3, pp 944 – 954. The annexures comprised some diagrams and a photograph of the pontoon.
Mr Berry described the wind as “blowing pretty hard” onto the front of the vessel when the hat went into the water. When he saw the plaintiff react to this by diving into the water from the “left (port) side (sic)”, he started to video the plaintiff in the water.
Mr Berry stated that after Mr Allred had circled the vessel back to retrieve the plaintiff, he did not provide any clear directions to anyone on how to help retrieve the plaintiff. In those events, he said that after the vessel had stopped, he saw the plaintiff swim towards the boarding ladder, but in order to do so, he had to swim behind the outboard motor and, in order to reach the ladder on the starboard side, had to dangle his legs behind the motor which was on and running.
Mr Berry stopped filming during the plaintiff’s ascent up the ladder when he realised the plaintiff had been injured. He then used his first aid training to assist the plaintiff.

Witness statement of Ben Laws

On 27 July 2020, Mr Ben Laws, a roofer, signed a witness statement, with annexed diagrams and a photograph prepared for the hearing of the negligent navigation charge against Mr Allred: Exhibit A, Vol 3, pp 1047 – 1056.
Mr Laws described the strong windy conditions that prevailed during the outing on the day in question as “blowing pretty hard”. He described the plaintiff’s reaction to the hat blowing overboard in the wind. He said the plaintiff walked past him and before going overboard he said “can you get the guy to stop”. That request proved to be superfluous, as by then Mr Allred was already turning the vessel to port. He said that at no stage did Mr Allred say anything during the circumstances that had unfolded.
Mr Laws described how Mr Allred circled the vessel back and manoeuvred it to a stop about 20 metres from where the plaintiff was located in the water. He said he then saw the plaintiff swim to the vessel on the portside, by which time the vessel was then slowly moving forward. He described the plaintiff as having to swim behind the motor in order to reach out to take hold of the boarding ladder.

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 25^th 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]

Miscellaneous documents relating to the second defendant

The first defendant also relied upon some miscellaneous documents that related to Mr Allred, as identified below.

Practical assessment record dated 15 November 2019

On 15 November 2019 Mr Allred underwent an Australian Maritime Safety Authority practical assessment by Mr William Mountford in Jervis Bay and completed assigned assessments for vessel management, passenger safety, and person overboard retrieval: Exhibit 1, Tab 6, pp 397 – 399.

Mr Allred’s eyesight test and medical fitness

On 6 November 2019, Mr Allred passed a Maritime Safety Authority Eyesight test that indicated he satisfied the certification criteria to operate a vessel without visual aids: Exhibit 1, Tab 7, p 400. On that same date he was medically certified as having met the licensing requirements of the Australian Maritime Safety Authority: Exhibit D1, Tab 8, pp 403 – 404.
I now turn to the issues for determination as identified at paragraph [33] above.

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.

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.

Issue 3 – The relevant risk of harm

In this case, the parties accept that, the appropriate level of generality without obscuring the true scope of potential injury, the relevant risk of harm may be conveniently identified as being that if a person in the water came into contact with the moving propeller of a motorised vessel, injury from the propeller might occur: Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11, at [106].

Issue 4 – Scope and content of duty of care owed

It is indisputable that each of the defendants owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2002) 205 CLR 254; [2002] HCA 61 at [13].
In the case of the first defendant, that duty arose because of the existence of a sufficient commercial relationship in which the first defendant was being paid to provide a service to a contemplated group of persons who would share the cost. The scope of the first defendant’s duty of care extended to providing a competent and qualified master for the vessel for the outing, knowing that if the master was not competent, multiple persons could be placed at unnecessary and avoidable risk of injury.
In the case of the second defendant, as the designated master in charge of the vessel, and therefore, responsible for the safety of its passengers, his duty to take reasonable care extended to the need to make reasonable ad hoc judgments and take reasonable steps to avoid needlessly placing his passengers at risk of injury from the consequences of his own imprudent navigational and operational actions or decisions whilst he was in charge of the vessel with its passengers in his care.

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.

Issue 12 - Assessment of damages

In the paragraphs that follow, I set out my findings on the nature of the plaintiff’s injuries, the treatment he received for those injuries, the details of his medical assessments, his remaining disabilities, the economic and other effects he has experienced, his most probable circumstances but for his injury, followed by my assessment of his entitlement to damages according to the provisions of the CL Act alone, as I have found that the ACL does not apply in this case.

Injuries

The plaintiff sustained 6cm deep and 15cm long open transverse lacerations to the anterior lateral aspect of his left leg below the knee. The hospital notes record that he experienced some loss of blood due to active arterial bleeding. He also sustained a transverse fracture of the anterior fibular head at the margin with associated anterior displacement and bruising within the compartment of his left knee. He was shocked and in considerable pain as a result of the accident and suffered psychologically.

Treatment

After the plaintiff received first aid whilst still on the vessel he was transported to the nearest jetty, where ambulance personnel provided him with intravenous morphine and other drugs, and he was also given the green whistle for immediate pain relief. At Shoalhaven Hospital he was treated by the orthopaedic team led by Dr Jarman.
An emergency surgical washout of the plaintiff’s wounds was carried out in the operating theatre due to wound exposure to the marine environment. The plaintiff underwent a number of surgical procedures. He had an arthroscopy carried out on his left knee along with some ligament repairs effected by placing drill holes in his bones to secure remedial sutures. This also involved some meniscal trimming. His fibular fracture was repaired and fixed into position with screws. The plaintiff’s wounds were sutured. His left leg was immobilised to ensure an enforced restricted range of motion in a brace to promote healing.
The plaintiff was provided with patient-controlled analgesia using Fentanyl. He underwent several debridement procedures whilst in hospital. He remained in hospital for 3 days. He was discharged on non-weight bearing crutches which he used for the following 6 weeks. This was followed by intensive physiotherapy treatment.
Dr Jarman’s final assessment of the plaintiff, on 5 October 2020, was that, in view of his inability to run due to a jolting sensation in the left knee and ongoing soreness in that area, he has continued functional instability in his left knee which may give rise to a need to consider a postero-lateral corner reconstruction: Exhibit F.

Medical Assessments

The plaintiff underwent a series of specialist medical assessments for the purposes of his litigation.

Dr Porteous – Occupational Physician

On 7 June 2021, at the request of his solicitor, the plaintiff was assessed by Dr Andrew Porteous, an occupational physician: Exhibit A, Vol 2, pp 700-707. In his report of 18 June 2021, Dr Porteous noted that on his examination the plaintiff walked with a limp and he had complaints of ongoing chronic left proximal leg pain and associated restrictions with activities such as standing, walking, and his evidence of aggravation on activity. He also noted associated pain and some frustration at his reduced activities. Dr Porteous expressed appropriately reasoned opinions on the nature, extent and progress of the plaintiff’s injuries. Those opinions will be referred to in due course.

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.

Dr Vote – Orthopaedic Surgeon

On 9 September 2021, at the request of Mr Payne’s solicitor, the plaintiff was orthopedically assessed by Dr James Vote. Dr Vote’s report of that assessment is dated 16 September 2021: Exhibit D1, Tab 13, pp 457 – 464.
Dr Vote considered the mechanism of the plaintiff’s injury and expressed the opinion that the propeller was most likely operating to cause the two lacerations that were incurred by the plaintiff.
Dr Vote’s physical examination revealed the plaintiff to have weakness in the right quadriceps muscles with some laxity of the lateral ligament complex. That clinical finding provided a very different impression to that which was described by Dr Keller who “examined” him by means of a Zoom connection a week earlier. Dr Vote’s responses to particular questions will be referred to in relation to particular damages issues.
Dr Vote recorded a history of the plaintiff’s current experience of localised occasional sharp pain at the injury site, particularly on contact. He also noted the plaintiff’s complaints of left knee weakness and a tendency to collapse, and progressive discomfort on weightbearing, with related inability to fully squat, run, jump and engage in sporting activity, such as surfing, rock climbing, and golf. In light of these comments, I do not accept Dr Vote’s conclusion that the plaintiff is “a perfectly fit young man” (p 459).

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.

Economic effects

Dr Porteous expressed some opinions on the plaintiff’s restricted work options, and he predicted earlier than otherwise expected post-traumatic changes in the knee and further disabling long term restrictions. He pointed to the need for the plaintiff to pursue sedentary light work. He also identified further treatments including a possible scar revision procedure, a knee replacement, pain relief for flare-ups, and occupational therapy aimed at limiting pain and aggravation: Exhibit A, Vol 2, pp 705 – 706.
For the reasons identified at paragraphs [237] to [239] above, I do not accept Dr Keller’s opinions to the effect the plaintiff will have no future work restrictions and I do not accept that he is “a perfectly fit young man” as has been stated by Dr Vote.

Mitigation

The defendants did not assert that the plaintiff had unreasonably failed to mitigate his loss. I find that post-accident, after receiving treatment, the plaintiff pursued appropriate treatment and rehabilitation and he sought an early return to work. In my view, he has taken reasonable steps to mitigate his loss.

Plaintiff’s most probable circumstances

In cases where future economic loss is claimed, it is relevant to consider what would have been the plaintiff’s most probable circumstances but for the fact of his injury: s 13 of the CL Act.
Before his injury the plaintiff had no physical restrictions in his ability to actively pursue a full range of physical tasks in the exercise of his earning capacity, either in his pre-accident work, or as a competitor on the open labour market. There is no evidence that his pre-injury experience of anxiety or depression was a significant limitation on his ability to exercise his earning capacity. He was capable of deriving at least average weekly earnings.
In the paragraphs that follow, I set out my reasons for assessment of the plaintiff’s damages as required by the CL Act.

Non-economic loss

On behalf of the plaintiff, it was submitted that his damages for non-economic loss should be assessed at 32 per cent of the most extreme case pursuant to s 16 of the CL Act. In contrast, the first defendant submitted that these damages should be assessed at 27 per cent of a most extreme case.
The disabilities as described in paragraphs [244] to [250] above, and as also described in the histories recorded by the medical examiners indicate that, in addition to the cosmetic defect in his scarred leg, the plaintiff has and will continue to suffer significant pain, discomfort and loss of the amenity of his life. Due to his pain and discomfort, he has also had to abandon the niche work he has enjoyed. He has a long life expectancy ahead of him. These matters call for a significant assessment of damages for non-economic loss.
The assessment of damages for non-economic loss is an evaluative exercise. As I have already observed, the plaintiff has stoically understated the effects of his injury. His predisposition in that regard should not serve to reduce his entitlement to damages. In my assessment, the first defendant’s submission that non-economic loss should be assessed at 27 per cent of a most extreme case is manifestly inadequate. That assessment does not represent fair compensation for the deleterious effects of the accident that the plaintiff has endured and will continue to endure. In my view, the plaintiff’s submission of an assessment of 32 per cent is reasonable and appropriate in the circumstances.
I decline to assess damages pursuant to the ACL in light of my findings in respect of Issue 11.
Therefore, pursuant to s 16 of the CL Act, I assess the plaintiff’s non-economic loss at 32 per cent of a most extreme case. This is the monetary equivalent of $208,000.

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.

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.

Future domestic assistance

On behalf of the plaintiff, it was submitted that there should be a general allowance made for the cost of future domestic assistance in the buffer sum of $50,000. Earlier, the plaintiff received past domestic assistance for an initial period of three months following the accident. That level of assistance does not meet the statutory threshold for a monetary assessment: s 15 of the CL Act.
The medical evidence does not suggest that the plaintiff has a current need for readily identifiable domestic assistance, however, it suggests that the plaintiff would have difficulty with low down activity. In these circumstances, a discounted buffer approach is the most appropriate method by which to compensate the plaintiff for this component of his claim.
As identified by Dr Porteous, the plaintiff will have difficulty with some domestic tasks which will require him to engage in “low down” activity. On the evidence, the timing, incidence, duration, and likely costs involved remain as imponderable factors.
Doing the best I can to be fair to the plaintiff and not unfair to the defendants, I assess the plaintiff’s damages for future domestic assistance over his remaining lifetime as a consequence of his injury in the discounted buffer amount of $15,000.

Future treatment expenses

On behalf of the plaintiff, it was submitted that his damages should include an amount that would go towards meeting the cost of likely future medical and allied treatment. It was submitted that amount should be assessed in the buffer amount of $40,000.
In contrast, the first defendant submitted that the plaintiff’s damages for future treatment expenses should be restricted to an allowance for “some medication and the prospect of removal of hardware in the next 1 – 2 years”. No allowance was made for the other items claimed as outlined in the report of Dr Porteous.
Dr Porteous has identified a likely need for the plaintiff to have plastic surgery to seek to reduce long term pain in the left knee. He has estimated the cost at between $5,000 and $7,000. He has identified the need for an occupational therapy assessment at a cost of $1,000 and about $600 per annum for occasional pain relief when flare-ups occur. He has also identified the likely cost of knee replacement surgery in the next 15 to 30 years at about $35,000.
In my view, Dr Porteous’ opinion is appropriately reasoned and it should be accepted in preference to the opposing opinions of Dr Keller to the contrary. However, the assessment must include a discount to reflect the likely delay in the plaintiff incurring the identified expenses.
Doing my best to be fair to the plaintiff and not unfair to the defendants, I assess the plaintiff’s damages for future treatment expenses in the discounted buffer amount of $20,000.

Past out-of-pocket expenses

On behalf of the plaintiff, it was initially submitted that damages for past out-of-pocket expenses should be assessed in the amount of $1,977.52. Subsequently, on 14 June 2022, the parties came to an agreement that out-of-pocket expenses were in the amount of $1,773.25. Therefore, I assess the plaintiff’s damages for past out-of-pocket expenses in the agreed amount of $1,773.25.

Summary of damages assessment

My assessment of the plaintiff’s damages is summarised as follows:

Head of damages

Assessment

(a) Non-economic loss

$208,000

(b) Past economic loss

$20,000

(c) Future economic loss

$200,000

(d) Future domestic assistance

$15,000

(e) Future treatment expenses

$20,000

(f) Past out-of-pocket expenses

$1,773.25

Total

$464,773.25

Disposition

The plaintiff has succeeded in his claims against both defendants. Under the CL Act he is entitled to compensatory damages assessed in the sum of $464,773.25.

Costs

As the plaintiff has succeeded in his claim against both defendants, he should have his costs of proceedings paid by the defendants on the ordinary basis unless a party can show a basis for a different costs order.

Orders

I make the following orders:

Verdict and judgment for the plaintiff in the amount of $464,773.25;

The defendants are to pay the plaintiff’s costs on the ordinary basis unless a party can establish the basis for some other costs order;

Liberty to apply for further or other costs orders if required;

The exhibits are to be returned to the parties.

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Decision last updated: 05 July 2022

Medium Neutral Citation:	Liccardy v Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd and Anor [2022] NSWDC 246
Date of orders:	5 July 2022
Decision date:	05 July 2022
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [295] for orders
Catchwords:	TORTS – negligence – marine accident – plaintiff injured in the water when a propeller under power came into contact with his left leg whilst he was re-boarding a vessel after retrieving a hat from the water – finding that the master of the vessel was negligent – finding that the owner of the vessel is vicariously liable for the master’s negligence – rejection of defences claiming volenti non fit injuria; obvious risk in relation to dangerous recreational activity; intoxication; contributory negligence – rejection of claim made pursuant to Australian Consumer Law in respect of statutory warranties DAMAGES – assessment of claimed heads of damage pursuant to the provisions of the Civil Liability Act 2002 (NSW)
Legislation Cited:	Australian Consumer Law (Cth), ss 3, 60 and 67 Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 5F, 5G, 5K, 5L, 5M, 5R, 5S, 13, 15, 16, 48 and 50 Evidence Act 1995 (NSW), s 60 Law Reform (Vicarious Liability) Act 1983 (NSW), s 7 Marine Safety Act 1998 (NSW), s 13
Cases Cited:	Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Huynh v Minh Truong and Thi Thu Hoang Pham t/as Le Bon Bakehouse [2018] WADC 39 Jefferson Ford Pty Ltd v Ford Motor Co [2008] 167 FCR 372 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Medlin v State Government Insurance Commission (1995) 182 CLR 1; (1995) 127 ALR 180; (1995) Aust Torts Reports 81-322; [1995] HCA 5 Miller v Miller [2011] HCA 9 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2002) 205 CLR 254; [2002] HCA 61 Paff v Speed (1961) 105 CLR 549 Penrith City Council v Parks [2004] NSWCA 201 Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Rootes v Skelton [1967] HCA 39; (1967) 116 CLR 383 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 Jones v Dunkel (1959) 101 CLR 298
Category:	Principal judgment
Parties:	Plaintiff: Adam Liccardy First Defendant: Daniel Payne t/as Sussex Inlet Pontoons Pty Ltd Second Defendant: Derek Wayne Allred
Representation:	Counsel: Plaintiff: Mr A Campbell First Defendant: Mr I Griscti Second Defendant: Mr D Eardley (24 May 2022) and then no appearance thereafter Solicitors: Plaintiff: Law Partners Compensation Lawyers First Defendant: James Tuite & Associates Second Defendant: PJ Carey Solicitor
File Number(s):	2021/101380
Publication restriction:	None

*Head of damages*	*Assessment*
(a) Non-economic loss	$208,000
(b) Past economic loss	$20,000
(c) Future economic loss	$200,000
(d) Future domestic assistance	$15,000
(e) Future treatment expenses	$20,000
(f) Past out-of-pocket expenses	$1,773.25
Total	$464,773.25