Hat overboard! What is a “Dangerous Recreational Activity”?

02 SEP 2022

 

Man successfully sues boat owner / operator and master for injuries sustained to his left leg, and receives an award for $464,773.25

On 25 January 2020, Mr Adam Liccardy sustained injury whilst attending a small gathering on a boat, with 10 or so other guests. The incident occurred at Sussex Inlet on the south coast of NSW.

The injury occurred when Mr Liccardy dived from the boat into the water to retrieve a hat (belonging to one of the other guests) which had blown into the water by a strong wind. Once Mr Liccardy had retrieved the hat from the water, he began to reboard the boat, using a fixed ladder. As he was doing so, his left lower leg and knee came into contact with the submerged, moving propeller of the boat’s outboard motor. It was in evidence that Mr Liccardy was intoxicated and under the influence of cocaine at the time of the incident.

As a result of the incident, Mr Liccardy suffered severe lacerations to his left leg, requiring surgery and three days in hospital. Further, Mr Liccardy also suffered psychological harm.

Mr Liccardy commenced proceedings against the boat owner and operator, as well as the boat master.

The court found the following:

  1. Both defendants ought to have foreseen that there was a “not insignificant” risk of harm from injury.
  2. A reasonable person in the position of the boat owner ought to have provided a competent master for the charter.
  3. But for the negligence of the master, for which the boat owner was vicariously liable, Mr Liccardy’s injury would not have occurred.
  4. Despite the fact that boating may arguably be considered a “dangerous recreational activity”, it was held that when Mr Liccardy suffered his injury, he was not engaged in a recreational activity, dangerous or otherwise, and retrieving a windblown hat from the water should not be characterised as a dangerous recreational activity.
  5. Interestingly, despite Mr Liccardy having ingested multiple beers and cocaine, the court found that his intoxication did not contribute to his injury and the injury could have occurred even if he was not intoxicated.

Damages were assessed in the total sum of $464,773.25, including $208,000 for pain and suffering.

 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

 

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