An impromptu pole dance on a cruise ship for one passenger who got into the swing of things has led to a Claim and Statement of Claim being filed in the Southport District Court after the passenger, and now Plaintiff, sustained injuries when her skin was penetrated by a hook on one of the poles.
Ms Andrews was a passenger aboard P & O’s Pacific Dawn on 8 February 2012 when she joined other female passengers “swinging and/or pole dancing” next to a swimming pool aboard the ship. According to the Statement of Claim, when the 23 year old swung around the pole, she sustained a right arm/elbow injury, scarring to the right arm and psychiatric/psychological injuries when her skin was penetrated by one of the hooks on the pole.
The Plaintiff alleges that the Defendant, Carnival PLC T/as P & O Cruises Australia was negligent on the basis that the Defendant’s staff witnessed other female passengers pole dancing either on the pole or on similar poles and they did not warn passengers of the hooks, they did not cordon off the area and they did not place chains on the hooks in order to stop the passengers from swinging on the poles. The Plaintiff also alleges that the hooks should have been covered by a plastic sleave or round hooks used to prevent the hook penetrating the Plaintiff’s skin.
In addition to the allegations of negligence the Plaintiff’s claim is also founded in contract on the basis that it was an implied term of the contract that the Defendant make the ship as safe as reasonable care could make it. The Plaintiff has also relied on statutory warranties namely the Australian Consumer Law on the basis there was a guarantee that the supply of goods and services was to be provided with due care and skill and it was to be of such a nature, quality, state and condition so as to be reasonably fit for its intended purpose.
The Plaintiff alleges that because the claim is based on breach of contract and breach of statutory guarantees, any exclusions contained within the Civil Liability Act would not apply. It is unclear whether the Plaintiff is referring to the Civil Liability Act in NSW (the contract provides that the laws in force in NSW will apply) or QLD and certainly the Defendant has raised this as an issue in the Defence. The relevance of this is that s5N of the Civil Liability Act 2002 (NSW) provides that a term of the contract for the supply of recreation services “may exclude, restrict or modify any liability….that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill”.
The Defendant states in the Defence that the General Terms and Conditions provided to Ms Andrews when she booked her ticket aboard the cruise, included a clause which stated “(P&O Cruise) will not be liable for sickness, injury or death unless caused by our proven negligence or failure to provide services with due care and skill and that are reasonably fit for purpose.”
The Plaintiff’s claim for damages is for $329,251.49 plus interests and costs.
The incident in the Statement of Claim is referred to as follows “the Plaintiff swung around the Pole” the Defendant in its Defence states that in addition the Plaintiff also:
- “wrapped one leg around the pole;
- lost balance and fell; and
- slipped down the pole”
and that these actions contributed to the incident.
Otherwise the Defendant admits that the hooks were rusted where paint had peeled and that the area was not cordoned off, but they deny that the hooks were sharp or that they posed a risk of harm to the Plaintiff. The Defendant states that the pole’s intended purpose was to rig up chains and not for other leisurely activities (like pole dancing). They state that at the time of the accident the pole was not being used for its primary purpose.
P&O Cruises have stated in the Defence that the Plaintiff “failed to take any appropriate precautions for her own safety by swinging on a pole while intoxicated”.
It remains to be seen whether the Plaintiff or the Defendant are in pole position and no doubt this claim will be an entertaining mediation.