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
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
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
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