Cruise ship not liable for assault on passengerSep 2014 |
Packer v Tall Ships Sailing Cruises Aus P/L & Anor  QSC 212
In cases of patron on patron violence, courts have generally held that an occupier of licensed premises will be liable for an assault where it has reason to anticipate the assault and fails to take reasonable steps to prevent it; for example, by engaging a sufficient number of security personnel or ejecting a patron where they are displaying signs of violent or disruptive behaviour. Conversely, an occupier will not be liable for an assault where it could not reasonably have anticipated the assault in time to prevent the occurrence. Although the case of Packer v Tall Ships Sailing Cruises1 did not involve a hotelier, the Queensland Supreme Court followed previous case law and held that the occupier of a cruise ship was not liable for a sudden, unprovoked and unpredictable assault committed by one patron on another.
On 2 December 2006, Jay Packer (plaintiff) and his family attended his employer’s annual Christmas party onboard a cruise ship. At some point during the day, the plaintiff observed a group swearing loudly and carrying on in a drunken manner and asked that they mind their language as children were present. A few minutes later the plaintiff again approached the group and asked that they quieten down. He was then punched in the head from behind by another passenger. The plaintiff 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 assailant was never identified.
On the day of the incident the ship was carrying 111 passengers, of which 90 were from the employer. The remaining passengers were from a separate company, Malouf Marine. The ship was staffed by a crew of 10 and there were no special security arrangements made for the day. Alcohol was served aboard the ship, as well as at the landing point which was also under the control of Tall Ships. One of the plaintiff’s witnesses gave evidence that prior to the assault, she had observed a group of people from Malouf Marine at the bar acting loud and boisterous, however she could not confirm whether this was the same group who later assaulted the plaintiff. None of the other witnesses or the plaintiff recalled seeing a group from Malouf Marine acting loud and boisterous prior to the incident. The plaintiff did not lead any further evidence of disorderly or violent conduct by passengers onboard the ship and the court accepted that the assault on the plaintiff was sudden, unprovoked and occurred without warning.
Liability of Tall Ships
The court held that Tall Ships owed passengers a duty to take reasonable care to avoid a foreseeable risk of injury. As Tall Ships was serving alcohol to passengers, the court accepted there was a risk that there might be violent, quarrelsome or disorderly passengers who may have had too much to drink and this was a general risk of which Tall Ships ought to have been aware. In determining whether the risk required Tall Ships to take reasonable precautions was a question of fact and the court was influenced by the decision of the High Court in Adeels Palace.2 Having regard to the nature of the day trip, the likely agenda for the day’s activities and the fact that the passengers included children and families, the court did not think the risk of violent, quarrelsome or disorderly behaviour was a high one in the circumstances, and it was therefore unnecessary for Tall Ships to have taken such precautions as engaging specialist crowd controllers or security personnel.
The plaintiff argued that Tall Ships also breached its duty by failing to prevent the specific risk posed by the assailant’s group and Tall Ships should have moderated or stopped serving alcohol to the group or otherwise monitored their behaviour. The court was not satisfied that noisy or boisterous behaviour required such a step, rather it referred to previous case law which highlighted that for a licensee to intervene to prevent an assault by one patron on another, they must be or should be aware of some kind of threat which calls for action.3 In this case, the court held the assault was unprovoked, instantaneous and unpredictable, and there was nothing in the conduct of the assailant’s group prior to the incident which suggested that the situation was likely to erupt into violence. The plaintiff therefore failed to satisfy the court that Tall Ships had breached its duty of care.
Liability of the employer
The plaintiff’s employer undisputedly owed the plaintiff a duty of care. The plaintiff submitted that its employer’s duty of care required its director to take steps to make himself aware there was a boisterous group from Malouf Marine that had been drinking and swearing while aboard the ship. However, the court considered it unrealistic in the circumstances to predicate that the employer’s duty required it to audit the conditions on the day, particularly as there was no evidence that the director of the employer was aware of any risk of the kind which eventuated, and had no control over the other passengers or Tall Ships. Accordingly, the court was not satisfied that the employer had breached its duty.
Take home lessons
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. It is therefore prudent in these cases to conduct comprehensive enquiries with insureds to ascertain whether the assailant and / or the plaintiff had caused trouble or acted aggressively in the lead up to the incident, or whether the insured was aware of any problems or arguments caused by the assailant and / or the plaintiff. If these enquiries are answered in the negative, it will be difficult for a plaintiff to succeed in these types of cases.
1  QSC 212.
2 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420.
3 Wagstaff v Haslam (2007) 69 NSWLR 1 and Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91.