The Queensland Court of Appeal has added to the growing body of recent case law on assault cases pursued against venues licensed to serve alcohol.
Tall Ship operated a pleasure cruising business on Moreton Bay whereby it would transport passengers between the mainland and a venue it operated at McLaren’s Landing. The plaintiff’s employer arranged a Tall Ship cruise for their 2006 Christmas party. Mid-morning on 2 December 2006, the ship left the mainland carrying 111 passengers and 10 crew members. In addition to the plaintiff’s group, there was also a group from ‘Malouf Marine’ aboard.
Passengers were served food and alcohol and, when the ship arrived at McLaren’s Landing, members of the Malouf group continued drinking while the plaintiff’s group (accompanied by family members and children) played water-sports and ate lunch.
Mid-afternoon, passengers returned to the ship and, as the plaintiff was about to board, men from the Malouf group were swearing loudly amongst themselves and behaving in a drunken manner. The plaintiff asked the Malouf group to watch their language, following which he was sworn at. After the plaintiff again requested that the men mind their language, he was punched from behind by an unidentified assailant. The plaintiff was left with facial injuries and long-term neurological problems. He sued Tall Ship alleging it was negligent.
The Court of Appeal affirmed the High Court authority of Adeels Palace v Moubarak in which it was said that that an operator of a licensed venue owes a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other patrons. However, the Court emphasised that in considering whether the duty had been breached, all of the surrounding circumstances must be taken into account.
The Court held that a group of men swearing in the presence of children did not mean it was foreseeable that the assailant might become violent towards the plaintiff or members of his group. The Court went a step further and said that, even if a crew member had heard the swearing directed at the plaintiff after he had asked them to mind their language, the crew would still not have identified that there was a risk of violence. There was no violent, quarrelsome or threatening behaviour to which the crew were obliged to respond.
The Court rejected submissions by the plaintiff that the Malouf group’s noisy and boisterous behaviour required withdrawal of alcohol services, monitoring of the group or refusing permission for them to re-board the ship. The Court also found that, taking into account all of the relevant circumstances, there was no requirement for Tall Ship to have a designated security presence aboard. The plaintiff’s appeal was dismissed with costs.
Packer v Tall Ship Sailing Cruises Australia Pty Ltd
Courts will not find licensed venues liable for assaults unless the injured person can establish that the licensee ought to have known of facts creating a foreseeable risk of violence and failed to take appropriate precautionary measures.