Payne trading as Sussex Inlet Pontoons v Liccardy

Payne trading as Sussex Inlet Pontoons (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning an award of damages for personal injury. The respondent, Mr Liccardy, suffered injuries when attempting to reboard a pleasure craft from the water. The central dispute concerned the extent to which the respondent's intoxication contributed to his injuries and, consequently, the appropriate reduction of damages for contributory negligence.

The Court of Appeal was required to determine whether the primary judge erred in finding that the respondent's injuries were not "likely to have occurred" had he not been intoxicated. This involved considering the meaning of "likely to have occurred" in the context of the *Civil Liability Act 2002* (NSW), specifically whether it required proof that the injuries were more probable than not to have occurred in the absence of intoxication. The court also had to assess whether the primary judge correctly determined the extent to which the respondent's intoxication contributed to his injuries and, accordingly, the appropriate apportionment of contributory negligence.

The Court of Appeal found that the primary judge had applied an incorrect legal test in assessing the causal link between the respondent's intoxication and his injuries. The court held that "likely to have occurred" did not necessitate proof that the injuries were more probable than not in the absence of intoxication. Instead, it required a consideration of whether the intoxication played a causative role in the occurrence of the injuries, even if those injuries might still have occurred without the intoxication. The court concluded that the respondent's intoxication did contribute to his injuries and that the primary judge's assessment of contributory negligence was therefore flawed.

The Court of Appeal ordered that the appeal be allowed, setting aside the primary judge's orders. The parties were directed to file and serve agreed orders, or competing draft orders and submissions on costs, by 5 May 2023.