Australia: Jones -v- Dapto Leagues Club Limited [2008] NSWCA 32

Last Updated: 4 April 2008
Article by Nicholas Gordon

In Brief

  • The Court of Appeal will overturn a trial judge's decision where the judge's reasoning is contradictory.
  • The Court of Appeal considered whether the requirements of s 50 of the Civil Liability Act had been made out.

Background Circumstances

  • On 6 July 2002 the plaintiff was playing pool at the defendant's premises.
  • Adjacent to the pool table was a barrier in the form of a picket fence on which there were lights on the fence posts. There was a light socket into which a bulb could be screwed. Over and around the bulb was fixed a spherical-shaped lamp. On one of the posts was an exposed socket which lacked both bulb and lamp.
  • At one stage a companion of the plaintiff, who was an electrician by trade, drew the plaintiff's attention to the danger of electrocution. The plaintiff jokingly said that he was going to place his fingers into the socket.
  • A supervisor at the club removed from its socket the plug that serviced the line of lights on the picket fence. He then went off to arrange for an "out of order" sign for the defective power socket, but was distracted by another matter.
  • During the ensuing period of approximately 20 to 30 minutes the plaintiff placed two fingers in the empty light socket and suffered an electric shock that burnt his middle finger. The plaintiff fell to the floor, momentarily losing consciousness.
  • The plaintiff believed that the power was still turned off, but in fact someone (probably a club employee) had reconnected the power shortly afterwards. {CJ 00344155}
  • The trial judge found that the plaintiff's earlier remark was made in jest and it was not put to the plaintiff that he had placed his finger deliberately into the exposed socket.
  • The plaintiff was taken to hospital by ambulance and subsequently received extensive treatment for what his psychiatrist diagnosed as post-traumatic stress syndrome ("PTSD").
  • The plaintiff had consumed a reasonable quantity of alcohol at the time of his accident.

District Court Decision

  • The trial judge, Judge Delaney, found that the defendant was negligent as occupier.
  • The trial judge however discounted the damages awarded by 65% for contributory negligence for the following reasons:

" The plaintiff was aware that a globe was missing from the light socket and that one could suffer an electric shock if one's fingers were placed in the light socket if the power was on. The plaintiff was aware that the power had been disconnected to the lights on the picket fence, but it appears that no-one was aware that someone had reconnected the power. …. He stepped back from the pool table and lent on the fence, putting his fingers into the light socket. In my opinion, this was a reckless act which significantly contributed to the accident."

  • At trial the defendant also raised s50 of the Civil Liability Act which provides that:

" (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired.

(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is {CJ \ 00344155} likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributory negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage.

(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. "

  • The trial judge found that the requirements of s50 of the Civil Liability Act had not been made out as:

"the evidence establishes that while the plaintiff was affected by alcohol, this was not to the degree that his capacity to exercise reasonable care and skill was impaired … In my opinion, any intoxication issues go to the question of contributory negligence not to breach of duty."

  • In relation to damages the plaintiff's claim was restricted to past and future out-of-pocket expenses and non-economic loss.
  • The plaintiff's treating psychiatrist, Dr Pakula, diagnosed PTSD as a result of the accident. The defendant relied upon a medico-legal report from Dr Parker, an assistant professor at the Faculty of Health Sciences and Medicine at Bond University. After initially diagnosing a moderate head injury, Dr Parker later expressed the view that the plaintiff's present conditions stem from chronic alcoholism and not due to the subject accident. However, Dr Parker twice pointed out that he was not a clinical psychologist or neuro-physician.
  • The trial judge preferred the evidence of Dr Parker and awarded no damages for non-economic loss or future out-of-pocket expenses. An award of $2,000 for past out-of-pocket expenses was made, which was reduced by 65% for contributory negligence (total award $700).

Court of Appeal Decision

  • President Mason, who wrote the unanimous judgment, found that the trial judge's reasoning was internally contradictory. For example the trial judge found that the plaintiff did not intentionally injure himself as he thought the power had been disconnected to the lights on the fence, but then found that the accident was caused by the plaintiff acting deliberately or with so little regard for his own safety that he did not think about what he was doing.
  • Accordingly the Court of Appeal overturned the findings in relation to contributory negligence and found that there should be no deduction on account of contributory negligence, on the basis the plaintiff did not know the power had been reconnected as the illumination of the fence was behind the plaintiff's back {CJ \ 00344155} and that there was no evidence the plaintiff deliberately placed his fingers in the exposed socket.
  • The Court of Appeal agreed with the trial judge in relation to his findings as to the intoxication defence under s50(2) of the Civil Liability Act, finding that:

"there was really no evidence about the extent of the plaintiff's alcohol consumption on the day in question. Neither he nor his companions were challenged on this topic in cross-examination."

  • In relation to damages the Court of Appeal found that the trial judge was wrong to prefer the evidence of the defendant's medico-legal expert over that of the plaintiff's own treating doctor. Specifically the Court of Appeal noted that Dr Parker himself stated that he was not properly qualified to give an opinion on all the medical issues.
  • The Court of Appeal substituted an assessment for non-economic loss at 23% of a most extreme case ($22,000), and also awarded an amount of $6,652 for future out-of-pocket expenses.
  • Accordingly the plaintiff's appeal was successful and he was awarded the sum of $30,652 plus costs.


  • Whilst in this case damages were not significant, the decision demonstrates the Court of Appeal will overturn a trial judge's findings of fact where it considers those findings are contradictory and against the weight of the evidence.
  • It is somewhat surprising that the Court of Appeal completely overturned the trial judge's findings in relation to contributory negligence when the trial judge had the benefit of assessing the plaintiff giving evidence, and one may have thought that his actions were at least contributory negligent to some extent.
  • The decision also demonstrates that if defendants seek to rely upon the intoxication defence, the evidence must be clear in relation to precisely how much alcohol the plaintiff has consumed and that the consumption of alcohol was causilly related to the accident in order to satisfy s 50(3) of the Civil Liability

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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