The plaintiff suffered serious brain injury after a speed boat driven by her intoxicated partner at high speed collided with another boat. The plaintiff’s partner was killed on impact. The plaintiff sued the estate of her deceased partner for negligence.
Although the New South Wales Supreme Court accepted that the plaintiff and deceased drank alcohol together on the day of the accident, there was no evidence as to her blood alcohol concentration. The plaintiff had no memory of the day in question and the Court was not prepared to draw an inference that she had consumed a substantial quantity of alcohol (notwithstanding evidence to the effect that she was a heavy drinker).
Under the Civil Liability Act 2002 (NSW), if the defendant could prove that the plaintiff had been engaging in a ‘dangerous recreational activity’, she would have no entitlement to damages. The eye witness evidence was that in the minutes before the impact the boat was being driven in a highly reckless manner at very high speed. Nevertheless, it was held that the plaintiff could not be said to be engaging in a dangerous recreational activity as a passenger in the boat because:
- the defendant had failed to prove that the plaintiff was a willing participant (she may have been begging her partner to slow down or let her out of the boat); and
- there was insufficient evidence that a reasonable (sober) person in the position of the plaintiff would have appreciated the extent to which her partner’s judgment was affected by his intoxication.
This second point is open to question given that the plaintiff’s deceased partner was found to have a blood alcohol concentration of 0.114 and given the Court accepted that they were drinking alcohol together during the course of the afternoon.
For largely the same reasons, the Court found no contributory negligence against the plaintiff. The plaintiff obtained a judgment for over $900,000 plus costs. Stay tuned for the appeal.
Nicol v Whiteoak (No 2)  NSWSC 1486