On 4 September 2014, HopgoodGanim Lawyers' Insurance and Risk team published an alert discussing a claim in the Queensland Supreme Court for damages in negligence against a boat cruise operator and an employer, for injuries suffered by a worker assaulted on a Christmas party cruise (see "Employer and boat cruise operator escape liability for attack on the high seas"). 

In the following Alert, Special Counsel Brooke Jacobs discusses the plaintiff’s failed appeal following the above decision. 

In a common sense decision, The Queensland Court of Appeal in Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 has dismissed the plaintiff’s appeal against the licensed operator of a boat cruise.  The plaintiff was seeking damages for facial and neurological injuries he sustained after being assaulted by an unidentified intoxicated patron of the cruise in December 2006.  The plaintiff initially pursued both his employer, who arranged the cruise, and the licensed operator of the cruise, however his claim was unsuccessful.

The plaintiff appealed the decision as against the licensed boat cruise operator only, arguing that the trial judge erred in not finding that patrons of the cruise had been drinking heavily for some hours and were intoxicated, swearing and confrontational preceding the assault.  The plaintiff argued that the conduct of the intoxicated patrons  posed a reasonably foreseeable risk of harm and enlivened a duty in the licensed boat cruise operator to take preventative measures.  The plaintiff further argued that the licensed boat cruise operator’s duty extended to limiting the alcohol consumption of patrons and providing security guards to monitor patrons who became intoxicated and disorderly.

In terms of the duty of care owed, the Court of Appeal referred to the High Court’s decision in Adeels Palace Pty Ltd v Moubarak (2009) CLR 420 (Adeels) which found that the relevant duty was to take reasonable care in the conduct of activities on licensed premises, which duty was not absolute.  In Adeels, the High Court held that “unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable precaution, the presence or crowd controllers to deal with it safely, failure to provide security of that kind would not be a breach of the relevant duty of care.”

The Court of Appeal did not accept that the evidence went so far as to demonstrate that the patrons were intoxicated and any more than boisterous and found that there “was no indicia of physical violence” and therefore that it was open for the trial judge to find that it was not reasonably foreseeable that an assault may occur.

The Court of Appeal confirmed the trial judge’s finding that the plaintiff’s claim was “not further advanced by characterising his status as that of a contractual entrant”.

The Court of Appeal concluded there was no factual or legal error and dismissed the appeal with an order that the plaintiff pay the licensed boat cruise operator’s costs.