Facts

On 2 December 2006 Commercial Waterproofing Services Pty Ltd (“CWS”) held it annual Christmas party for employees and their families on a pleasure cruise through Southern Moreton Bay to McLarens Landing.

Packer was an employee of CWS.

The cruise was operated by Tall Ships Sailing Cruises Australia Pty Ltd (“TSSCA”).

At the time of Packer’s injuries, there were 111 passengers on the cruise, the majority of whom were workers from CWS and their families. There were also passengers from another business, Malouf Marine, as well four private passengers.

The cruise was staffed by a crew of 10 – a manager, a skipper, two senior crew members, five crew attendants and one on duty person – there were no special security arrangements made for that day.

The cruise set off for McLarens Landing at 10:36am and arrived approximately 40 minutes later. Packer and other CWS workers enjoyed lunch, water sports and a few drinks. The Malouf Marine group were at McLarens Landing at the same time and were observed by one witness to have been drinking cocktails, shots and spirits and were ‘quite loud and boisterous’. None of the other witnesses observed anything unusual about the Malouf Marine group at that time.

All passengers re-boarded the cruise at approximately 3:00pm.

As Packer re-boarded the cruise he noticed a group of four or five people ‘carrying on in a drunken manner’. Packer told the group to keep their language down and they responded by telling Packer to ‘piss off’. The group proceeded straight to the bar where Packer again approached them and asked them to keep their language down as there were women and children on board. Packer was then assaulted by way of a punch to the right side of his face.

Packer claimed that both CWS and TSSCA were liable to him for his injuries on the basis that each party had breached their duty of care owed to him by failing to act with reasonable skill and care to protect him against the risk of such an assault.

TSSCA

His Honour had no difficulty accepting that TSSCA, as the licensee or operator of licensed premises on the cruise and as the operator of the cruise, owed passengers a duty to take reasonable care to avoid a foreseeable risk of injury.

The critical issue for determination was what constituted a breach of the duty of care owed by TSSCA to a class of

persons of which Packer was a member. His Honour opined:

“… it may be accepted that there was a risk of which TSSCA ought to have known that there might be violent, quarrelsome or disorderly conduct by passengers who may have had too much to drink, returning after a day cruise. However, having regard to the context of the parties making up the day cruise on 2 December 2006 it seems to me that the risk was not a high one, judged without the benefit of hindsight.”

In that context, were there reasonable precautions that a reasonable person in the position of TSSCA should have taken?

Taking into account the nature of the day trip; the identities, number and composition of the two groups involved; and the agenda for the day’s activities, His Honour held that TSSCA had not failed to act with reasonable care by failing to engage specialist security personnel in additional to its usual crew. His Honour commented that Packer had failed to identify what security personnel should have been provided in order for TSSCA to discharge its duty of care.

Ultimately, His Honour held that the risk of injury was not reasonably foreseeable and that TTSCA had taken reasonable care for the safety of Packer:

“In my view, failure to act in the relatively short interval that elapsed between when the assailant’s group entered the lower deck cabin or were swearing at the bar and when the assault occurred was not a failure to take reasonable care for Mr Packer’s or other passengers’ safety, judged without the benefit of hindsight. On the contrary, the assault was sudden, unexpected and came without prior warning, or as it was put in another of the relevant cases: ‘unprovoked, instantaneous and unpredictable’.”

CWS

There was no dispute that CWS, as Packer’s employer, owed Packer a duty to take reasonable care to avoid a foreseeable risk of injury.

His Honour considered that while CWS could have exercised control of Packer and its other employees it had no control over other passengers on the cruise. His Honour held that it was unrealistic to require CWS to audit the conditions at McLarens Landing and while re-boarding the cruise.

His Honour held that CWS had not breached its duty of care to Packer and found that the risk of injury to Packer was not reasonably foreseeable:

“There was no evidence that Mr Lyden, or anyone else on behalf of CWS, was aware of any risk of the kind which eventuated when Mr Packer was assaulted. The Plaintiff submitted that the employer’s duty of care required Mr Lyden to take steps to make himself aware that there was a boisterous group from the other passenger group that had been drinking at McLarens Landing or that there was a group of four or five that were swearing loudly as they boarded the MV 2000, in the minute or so before Mr Packer was assaulted, and that a failure to intervene, either by him or someone else on behalf of CWS, was a breach of its non- delegable duty of care as employer. That submission is unsustainable, in my view.”

Causation

His Honour did not enter into any detailed discussion regarding causation but, interestingly, made the following hypothetical comments in relation to TSSCA:

“… if it was a breach of TSSCA’s duty of care for the crew member towards the top of the stairs to fail to ask the group of four or five at the bar to quieten down before Mr Packer did so, I would have concluded, on the balance of probabilities, that although there is no specific evidence as to how the group would have responded, Mr Packer would not have been injured.”

Implications

This case reinforces the importance of analysing the facts of a case prospectively, rather than with the benefit of hindsight. In the circumstances of this case, there was no immediate threat of violence that ought to have put CWS or TSSCA on notice of any emerging foreseeable risk of injury to Packer.

Further, where the Plaintiff alleges a breach of duty of care on the basis of a failure to take reasonable care by failing to engage security personnel, the burden is on the Plaintiff to identify what security personnel should have been provided, or when and where, in order to discharge the duty of care.

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