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The Queensland Court of Appeal  has upheld the decision of the Honourable Justice Jackson of the Supreme Court of Queensland denying liability for personal injuries resulting from a criminal assault on a pleasure cruise.

The Pleasure Cruise Business

The Defendant, Tall Ship Sailing Cruises (TSSC), operated a pleasure-cruising business in Morton Bay and a restaurant/bar venue on South Stradbroke Island. The business involved transporting patrons by ship to spend the day at TSSCs restaurant/bar venue on South Stradbroke Island. The ship had a bar on board that could be used by patrons both to and from South Stradbroke Island. At the end of the day patrons would be transported back, by ship, to the mainland.

What Happened?

In December 2006, two groups of patrons had Christmas party cruises hosted by the TSSC on the same ship. The Plaintiff was a member of a group which included children. In particular, there was one child in the Plaintiffs group who was recovering from a recent brain tumor surgery. As such, the Plaintiff’s group were looking to have a quiet day out on the waterways with their families at South Stradbroke Island.

The other group of patrons comprised around twenty adults who were colleagues from a business and were looking to have a different sort of Christmas party, one where alcohol would play a larger role. There was no separation between the groups on the ship or at the South Stradbroke Island venue.

The two groups boarded the ship in the morning. At the time of boarding, an announcement was made to the effect that if anyone saw anything out of the ordinary, they

should inform the crew. Although, the Plaintiff and the members of his group gave evidence that no such announcement was made.

The trip to South Stradbroke Island proceeded without incident and the two groups enjoyed water sports before having lunch. The other group of patrons spent the day at the venue on South Stradbroke Island, frequenting the bar and consuming cocktails, shots, and spirits. They were described as becoming “quite loud and boisterous”.

The Incident

At 3pm the time came for both groups to return to the ship and head back to the mainland. There was a set of stairs at the back of the ship that patrons had to alight to get up onto the deck. While getting back on board, the Plaintiff noticed members of the other group being very loud and swearing. The Plaintiff asked them to calm down and stop swearing because there were children around. The Plaintiff was told to “piss off“. No other member of the other group approached the Plaintiff.

The Plaintiff alighted back onto the ship and saw that the other group were over by the ship’s bar, getting louder and swearing more. Again, the Plaintiff approached the group and asked them to tone it down. This time, before the Plaintiff had finished speaking, he was punched in the side of the face from behind. The Plaintiff was badly injured and ended up in hospital. Subsequent arrangements were made for the other group to be taken on another ship back to the mainland. The Plaintiff’s assailant was not identified.

The Action

The Plaintiff sued TSSC for damages for personal injuries, on the basis that as operator of the ship, TSSC owed a duty of care to protect him while on the ship, similar to that of a nightclub. This was argued on the basis that the ship had a bar and was licensed premises.

In essence, the Plaintiff argued that TSSC, as a licensee, had effectively created a disorderly situation by serving the other group alcohol all day. The Plaintiff’s arguments were that

a) the crew members were similar to the bouncers in a nightclub;

b) the crew should have been aware that the boisterous and loud group were likely intoxicated; and

c) the crew should have taken steps to prevent any sort of incident occurring.

The Question?

The question for the court was whether it was reasonable to have expected the crew to have been aware of the boisterous and loud group and to have taken steps to protect the other patrons, and if by failing to do so, resulted in the plaintiffs injury.

The Decision

The trial judge found that the Plaintiff had no reason to apprehend that by approaching the other group and asking them to settle down, it would provoke the atrocious response of being struck from behind. Although, his Honour found that being boisterous and loud did not necessarily require monitoring of the type suggested by the Plaintiff.

The trial judge found that the assault was sudden, unprovoked, and occurred without warning. His Honour accepted that there was a risk of violent, quarrelsome, or disorderly conduct by passengers who may have had too much to drink returning after a day’s cruise, however, his Honour concluded that it was not a high risk in this case. In effect it was too long a bow to draw to say that it was reasonably foreseeable that the loud and boisterous group might contain a member who would undertake a violent unprovoked assault. As such, his Honour did not find TSSC liable for the injuries suffered by the Plaintiff. In essence his Honour found that a pleasure cruise, although a licensed venue, is not a nightclub.

The case was appealed and the Court of Appeal said that the trial judge made no material factual error and no error of law. The appeal was dismissed.

Key Point

This case highlights the sad reality that sometimes plaintiffs may be very injured, but cannot be compensated because there is no applicable duty. Sometimes the judicial system produces results that are difficult to grapple with on a factual basis, but there is an important balance to be struck between liability and appropriate compensation.

If you or someone you know wants more information or needs help or advice, please call us on 1800 96 00 96 or email enquiries@kingsleylawson.com.au.

Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108

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