Court of Appeal decision takes the wind out of Tall Ships appeal
Aug 2015 |
Packer v Tall Ships Sailing Cruises Aus P/L & Anor [2015] QCA 108
Introduction
In September 2014, Carter Newell’s newsletter ‘Cruise ship not liable for assault on passenger’ discussed a personal injuries claim heard in the Queensland Supreme Court. The case involved an appellant who had suffered serious injuries when he was assaulted by an unidentified assailant whilst boarding a ship following a work Christmas party on South Stradbroke Island. At first instance, the appellant claimed damages for the assault from the operator of the ship, Tall Ships Sailing Cruises Australia Pty Ltd (Tall Ships), as well as from his employer, Commercial Waterproofing Services Pty Ltd (employer). The appellant’s claim was dismissed against both respondents. He appealed the decision of the trial judge against Tall Ships only.
Background
In December 2006 the employer held its annual Christmas party for its employees and their families onboard the cruise ship which was operated by Tall Ships. The ship transported passengers to South Stradbroke Island where Tall Ships operated a venue including a bar and restaurant. After a few hours on the island the passengers were then transported back to the mainland. As the appellant boarded the ship he noticed a group of people swearing loudly and carrying on in a drunken manner and asked that they keep their language down. A few minutes later the appellant saw the same group of people at the bar and again approached them to ask that they stop swearing. He was then punched in the head from behind. The trial judge accepted the assault was sudden and unprovoked.
On appeal, the appellant submitted that the trial judge made a number of factual errors, namely, there was evidence that Tall Ships knew or ought to have known that the group from which the assailant had come had been acting loudly and boisterously while on the island, were drunk within an hour of arrival on the island, continued drinking over several hours and were swearing and confrontational during boarding. The appellant submitted that this was sufficient to place an obligation on Tall Ships’ employees to have taken steps to prevent against the risk of violence occurring such as stopping the service of alcohol to the group or prohibiting the assailant from reboarding the ship.
Decision of the Court of Appeal
The Court of Appeal concluded there was no factual or legal errors made by the trial judge and dismissed the appeal with an order that the appellant pay Tall Ships’ costs.
The court reaffirmed the decision of the trial judge that Tall Ships owed passengers a duty to take reasonable care to avoid a foreseeable risk of injury and in a situation where alcohol is served, there was a risk that passengers who had too much to drink may become violent, quarrelsome or disorderly. However, the court thought the trial judge was warranted in taking into consideration all the surrounding circumstances when considering the foreseeability of the risk, not just the presence of alcohol. Whether there was a risk that the group from the bar would engage in violent, quarrelsome or disorderly conduct which required Tall Ships to take reasonable precautions was a question of fact.
On the evidence available, the court thought it was open for the trial judge to find that it was not reasonably foreseeable in the circumstances that a member of the group would engage in such conduct. Even though the group were drinking alcohol, swearing and carrying on, there was no evidence that their behavior was directed at any other patrons and there was no commotion or interchange which suggested a risk of violent behavior towards other patrons. Furthermore, the court noted that the use of offensive language by the group and noisy or boisterous behavior was not sufficient so as to constitute violent, quarrelsome or disorderly conduct. As such, there was no obligation on behalf of Tall Ships to take steps to exclude the group from the ship, withdraw the service of alcohol to the group or otherwise monitor their behavior. The appellant therefore failed to satisfy the court that Tall Ships had breached its duty of care and the appeal failed.
Comment
This decision confirms that, for a plaintiff to succeed in such a case, they must show that an occupier was aware or ought to have been aware that a patron was acting violently or disorderly. Although there is always a risk of an argument or altercation between patrons and this risk increases when alcohol is served, it does not necessarily mean that a situation will erupt into physical violence as arguments and swearing are quite commonplace in bars. Whether an occupier of a licenced premises should take steps to prevent potential violence will depend on the particular facts of each case and courts are reluctant to find occupiers liable for sudden, unprovoked and unpredictable assaults committed by one patron on another. The decision of the Court of Appeal in this case merely affirms the courts’ previous line of reasoning on this point.