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- Notable Unreported Decision
- Appeal Determined (QCA)
Packer v Tall Ships Sailing Cruises Australia Pty Ltd QSC 212
SUPREME COURT OF QUEENSLAND
Packer v Tall Ships Sailing Cruises Aust P/L & Anor  QSC 212
JAY PHILLIP PACKER
29 August 2014
31 March, 1 April and 2 April 2014
The order of the Court is that:
1.The plaintiff’s claim is dismissed.
2. The parties make any submissions as to costs forthwith.
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – where the plaintiff attended a Christmas party day cruise for his employer, the second defendant, run by the first defendant – where multiple groups attended the day cruise – where the first defendant provided alcohol during the course of the day – where another group on the day cruise were drinking and swearing – where, upon reboarding the ship to return at the conclusion of the day, the plaintiff was suddenly struck by a passenger from the other group after requesting them to cease swearing – whether the first and second defendants breached their duty of care to the plaintiff
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372, cited
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, followed
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, cited
Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447, distinguished
Czatyrko v Edith Cowan University (2005) 79 ALJR 839, cited
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, followed
Roney v Priestman (2005) TASSC 52, referred to
Wagstaff v Haslam (2007) 69 NSWLR 1, cited
M Horvath for the plaintiff
T Gray for the first defendant
B Charrington for the second defendant
Smith Lawyers for the plaintiff
Australasian Lawyers & Consultants for the first defendant
Kaden Boriss Brisbane for the second defendant
- Jackson J: The protected waterways of Southern Moreton Bay between the Broadwater and Jumpinpin are an ideal place for a pleasure ship trip at Christmas time. In 2006, the first defendant, Tall Ships Sailing Cruises Australia Pty Ltd (“TSSCA”), carried on business operating a ship named “MV 2000” from Mariners Cove at Main Beach to McLarens Landing, which is located on the western side of South Stradbroke Island near Tipplers Passage. Travel from Mariners Cove to McLarens Landing on the MV 2000 took approximately 45 minutes. TSSCA also operated the venue at McLarens Landing. It includes bar and restaurant facilities. On a day trip, other activities and entertainments were provided, including jet ski and speedship/tube rides.
- On 2 December 2006, the second defendant, Commercial Waterproof Servicing Pty Ltd (“CWS”) held its annual Christmas party for employees and their families on a day trip on the MV 2000 to McLarens Landing. The plaintiff, Jay Phillip Packer, was one of the employees. At the end of the day, shortly after boarding the MV 2000 for the return voyage to Mariners Cove, the plaintiff was injured when he was assaulted by another passenger. He claims damages for negligence, from TSSCA and CWS, on the basis that each of them owed him a duty of care, that each of them failed to act with reasonable skill and care to protect him against the risk of such an assault, and that their breaches of duty caused the loss and damage he suffered from the assault.
- For the reasons which follow, the plaintiff’s claim must be dismissed. According to their respective relationships with the plaintiff, each of TSSCA and CWS owed him a duty of care. But neither of them breached their duty.
- In December 2006, according to its registration certificate, the MV 2000 was a ship registered for use as a passenger ship USL (Uniform Shipping Laws) Code classes 1C, 1D and 1E. The hull design is a catamaran. It is 30.75 metres in length by 11 metres in width and 4.1 metres in depth (a measurement ordinarily from bottom of the keel to the top of the deck). It is powered by twin 631 KW diesel engines positioned in the port and starboard hulls. According to the registration certificate, it was registered to carry up to a maximum 270 persons in smooth waters.
- Passengers board the ship at the stern, through a gate in the coaming onto an open cockpit area aft of the lower deck. There are lower and upper passenger decks. On boarding the ship, passengers climb from the open cockpit area into the lower deck cabin up a short set of stairs. The set of stairs (relevant to this case) is on the starboard side. At the top of the stairs, passengers enter the main cabin area of the lower deck. From there, they can progress forward in the cabin area or proceed to the upper deck using another set of stairs. The upper deck also has an enclosed cabin area and an open sitting area, located aft of the cabin area.
- According to the registration certificate, the lower deck was able to carry a maximum of 184 persons and the upper deck a maximum of 123 persons, but within the overall maximum 270 persons.
- On 2 December 2006, the ship was carrying 111 passengers overall. All but four of them belonged to two groups. The first group were from CWS. From the booking information and Mr Reese’s evidence, that group comprised approximately 90 persons. About half of them were adults, the employees and their partners or friends. The rest were children accompanying them. The second group was from Malouf Marine, a business at Labrador on the Gold Coast. They comprised approximately 20 adults.
- On 2 December, 2006, the ship was staffed by a crew of 10. From the log and Jason Nicholls’ evidence, they comprised Mr Nicholls as manager, a master or skipper and two other senior crew members, five other crew attendants and one other crew on duty person. There were no special security arrangements made for that day. The ship was controlled by its master, Mr Beeby, and the crew.
- The crew wore an easily identifiable uniform comprising blue shorts and running shoes with a blue and white polo t-shirt.
- The crew had designated positions for boarding and disembarking. On boarding, one of the crew took up a position at the top of the stairwell on the lower deck on the starboard side of the main cabin. His function was to welcome people at the start of the day, to count those boarding with a clicker and to usher people through.
- Usually, shortly after departure from Mariners Cove, an announcement was made by the master of the ship as part of standard operating procedures. The announcement started with advice about the safety requirements and appliances on the ship. The announcement, in its standard form, included a statement to the effect of:
“If, throughout the day … you have any questions, you can come and see one of the crew. If you see anything outside the norm, please come and inform us.”
- At McLarens Landing, there was a large undercover area which operated as a restaurant and bar. The covering was in a Balinese style, comprising a thatched roof to shelter patrons in all weather. TSSCA catered for dinners for large groups. For example, it catered for conference dinners for up to 200 people.
- The agenda for a day trip was usually a less grand affair. On 2 December 2006, according to the booking information, after boarding passengers in both groups were to be offered tea, coffee, muffins and homemade sausage rolls. On the island, at McLarens Landing, lunch was to be served comprising seafood or a meat selection of other kinds with potatoes, tropical salads and bread rolls.
- Both the MV 2000 and McLarens Landing were licensed premises under the Liquor Act 1992 (Qld). However, the liquor licence details were not put into evidence for either of those premises. Potentially from departure, alcohol was available onboard the MV 2000 as licensed premises. It was available at McLarens Landing in or from the bar or serving areas. According to the booking information, both CWS and Malouf Marine ordered standard alcoholic drinks packages for their groups. The adult standard package for CWS included basic drinks only, not including spirits or premium drinks. That package was booked to be available from midday to 4:00 pm. For Malouf Marine the arrangements were for a basic beverage package including basic spirits, again from 12:00 pm to 4:00 pm.
- At McLarens Landing, TSSCA had bar and restaurant employees catering to patrons. On 2 December 2006, Mrs Margaret Nicholls was the catering manager who oversaw the running of the island facilities, including staff and food. She had six other employees assisting, apart from any of the crew members of the ship. Some staff were cooking meals, others were serving at the bar or serving areas and others were picking up plates and glasses or assisting patrons.
- As its name implies, Commercial Waterproofing Services was a supplier of waterproofing in the construction industry. Paul John Lyden was the sole director of the company.
- At Mr Lyden’s direction, CWS held a Christmas party each year. The party was for everyone that worked for the company and their families including children. Each year, including 2006, Mr Lyden arranged for presents to be bought for the children who were attending the Christmas party and for a Santa Claus to come and give the presents out to the children.
- It seems that most of CWS employees were employed on a casual basis. Mr Lyden described them as in a “come and go” sort of relationship, presumably depending on the availability of work in the construction industry.
- In 2006, two of the office staff suggested to Mr Lyden that he take the families to an island for some water sports and activities. One of them sourced a number of opportunities and came to Mr Lyden suggesting a TSSCA day cruise. Mr Lyden gave the authority to go ahead, but left the booking arrangements with the staff member. That is the way that the Christmas party had been successfully arranged in prior years.
- As appears from the booking made by CWS with TSSCA and Mr Reese’s oral evidence, there were probably between 20 and 30 people employed by CWS at December 2006.
- On 2 December 2006, Mr Lyden attended the Christmas party at the day trip to McLarens landing. His wife and four children were among the CWS group.
- On 2 December 2006, Mr Packer was employed by CWS as a waterproofing applicator. He started working for CWS in February 2006.
- At that time, he was 35 years old. He had experienced ups and downs in life. As a teenager, he was the victim of a serious sexual assault. As at December 2006, he had a significant criminal history, which has continued thereafter. In this proceeding, that history is only relevant to his claim for loss of earning capacity, because significant periods of imprisonment have interfered with his work history. In mid 2005, he was in prison for some months. After that, he obtained employment at CWS, most likely through the assistance of his good friend, Mark Reese. Mr Reese was a supervisor at CWS.
- On 2 December 2006, Mr Packer was accompanied to the CWS Christmas party by his girlfriend, Jessica, and his two children. It will be necessary later to make detailed findings about the assault upon Mr Packer that occurred later in the day. It is appropriate at this stage to observe that Mr Packer’s evidence was responsive and unexaggerated and given to the best of his recollection. I have no hesitation in accepting most of it. To the extent there may be any defect in his recall of 2 December 2006, I put it down to the impacts on his memory of the assault and, as to any later occasion, to the passage of time between relevant events and his giving evidence. By and large, I thought him to be an honest and reasonably accurate witness.
- Mr Packer’s friend, Mr Reese, and Mr Reese’s wife, Kaylene, were also in the CWS group on 2 December 2006. They were accompanied by their children including an 18 month old infant and their nine year old daughter, Alicia. She was in recovery from a recent brain tumour operation and was not well.
Earlier on the day
- At about 10:00 am, the CWS group arrived at Fisherman’s Wharf at Mariners Cove on the courtesy bus which had picked them up from various locations. Employees of TSSCA were there on the MV 2000, wearing their uniforms.
- The CWS group boarded the ship, as did the other group (Malouf Marine) going to McLarens Landing. The CWS group went to the upper deck and sat there on the way over to the island.
- Neither Mr Packer, nor Mr or Mrs Reese, nor Mr Lyden recalls any announcement being made on the way over to the island. But as Mr Nicholls said, the announcement was part of standard operating procedure. It is not unlikely that passengers do not recall the announcement at this time, more than seven years after relevant events. It is more likely than not that the standard operating procedure was followed.
- According to the ship’s log, the MV 2000 departed Mariners Cove for McLarens Landing at 10:36 am and arrived there at 11:20 am. It departed from McLarens Landing for the return journey at 15:45 pm and arrived at Mariners Cove at 16:25 pm.
- On arrival at McLarens Landing, the CWS group had lunch and enjoyed some water sports. The adults talked and had a couple of drinks. As Mr Packer put it, it was “just a normal sort of day”. He spent the majority of the day with other employees from CWS, particularly Mr and Mrs Reese, and the children.
- The TSSCA staff served at the bar and at the food service location where meals were served.
- The other group (Malouf Marine) were on the island at the same time. None of Mr Packer, Mr Reese, Mr Lyden, Mr Nicholls or Mrs Nicholls noticed anything unusual about that group. Mrs Reese, however, observed some of them. She was sitting with her 18 month old infant for a good part of the time. She noticed a group at the bar, which included a couple of ladies, drinking cocktails, shots and spirits. She described them as at the bar for the whole time and quite loud and boisterous. However, she did not identify how many there were in the group or whether they were the same group as later became involved in the assault upon Mr Packer.
Reboarding the MV 2000
- A number of the witnesses said that about 3:00 pm, or shortly thereafter, the visitors to the island began to return to the MV 2000.
- A number of the witnesses referred to a crew member of the MV 2000 being positioned at the top of the stairs leading into the lower deck cabin, as passengers boarded via the stairs on the starboard side from the rear cockpit.
- Mr Lyden was already aboard the MV 2000 when the assault occurred. He was sitting forward or close to the front in the lower deck cabin but not far away from where it happened.
- Mrs Reese had to manage her infant and a stroller, as well as Alicia. Mr Packer came to help her get back onto the ship. As they were walking towards it, she heard a couple of men from the other party swearing and being very loud.
- Mr Reese was in front of his wife and Mr Packer in reboarding the MV 2000. It wasn’t entirely clear to me how, in that case, he observed Mr Packer come up the stairs from the rear cockpit with Alicia. But as he described it, Mr Packer came up the stairs with Alicia by holding her hand as they got on the ship and then assisting her by carrying her up to the top of the stairs and placing her back down so she could walk again.
- When Mrs Reese reboarded the MV 2000, she entered the lower deck cabin and went forward, passing the bar located in the centre of the cabin on her left hand side. She was sitting with her infant before the assault occurred. Mr Packer was behind her, with Alicia.
- As Mr Packer described it, reboarding the MV 2000 on the island involved walking up a gantry, then onto the ship, and then up the stairs. I infer that the gantry he referred to is a form of platform which enabled passengers to walk onto the rear cockpit floor, from where they proceeded up the stairs into the lower deck cabin.
- While on the platform, Mr Packer noticed a group of four or five people who were swearing and being loud “and carrying on like in a drunken manner”. The men were less than a metre away. Whilst on the platform, Mr Packer said words to them to the effect of “Come on fellows, it’s a family day out. Can you keep your language down? It’s not appropriate.” Mr Packer described the response that he received as: “Just like ‘piss off’”.
- He then proceeded onto the ship before the group of four or five. With Alicia, he ascended the stairs on the starboard side from the cockpit into the lower deck cabin. After Mr Packer and Alicia had entered the cabin, the other group walked past them and straight to the bar. The crew member remained at the top of the stairs on the starboard side.
- Mr Packer and Alicia were at the rear of the lower deck cabin, somewhere towards the port side. Mr Packer approached the group of four or five, now at the bar, and again asked them if they could they keep their language down as there were women and children on board. His evidence continued:
“Yes. What happened? --- After that, I don’t know, I was struck in the back of – from behind. I was punched in the side of the face and then, yeah.”
- It is clear from his injuries that the blow was to the right side of Mr Packer’s face. Mr Packer’s recollection after that is plainly impaired. He remembers vomiting over the side of the ship and being in hospital later in the day. He does not remember going to the hospital.
- Nevertheless, his recollection up to the point of being struck seemed intact. He recalled that: “[I] didn’t get to finish what I was saying to him before I was hit” and also recalled where the assault occurred on the deck, being about three or four metres from where the crew member of the MV 2000 was standing.
- It would be unhelpful to set out more evidence in detail. The clear inference is that the assault which occurred in the form of a blow to Mr Packer’s head from behind was sudden, unprovoked, and occurred without warning of any kind. The evidence did not identify the assailant.
- At the time of the assault, Alicia was still with Mr Packer. She was knocked into a nearby door or panel of some kind.
- Almost immediately, Mr and Mrs Reese and Mr Lyden were on the scene. Mr Reese helped Mr Packer who was nauseous and vomited over the side of the ship. Mrs Reese and Mr Reese were concerned for Alicia’s welfare. Mr Nicholls, who had been on the bridge, was informed of the incident and went downstairs into the lower deck cabin as well.
- Perhaps unsurprisingly, there was a reaction by some of the CWS group to the assault on Mr Packer. Mr Reese was angry about the possible injury to his daughter. The two groups were separated. According to Mr Reese, that occurred after the ship had got underway, so that the other group or party were taken off onto another ship or ships. According to Mr Nicholls, that happened before departure from McLarens Landing. The difference does not matter.
Findings sought by the plaintiff
- The plaintiff seeks fourteen specific findings. It is appropriate to deal with them separately and as briefly as may be.
- First, the plaintiff seeks a finding that no safety announcement was made on the day. From the facts found previously, I do not make that finding.
- Secondly, the plaintiff seeks a finding that the plaintiff would have followed the safety announcement and would not have approached the assailant’s group. In any event, in my view, the general safety announcement made at the beginning of the voyage to McLarens Landing would not have caused the plaintiff not to have approached the assailant’s group to request them to cease swearing. Without the benefit of hindsight, I do not accept that Mr Packer, as an able-bodied, robust and knockabout fellow, would have considered it necessary to approach a crew member to ask them to intervene, before making a reasonable request to the group of four or five to tone down their language. Mr Packer had no reason to apprehend that his sensible and reasonably made request would provoke the atrocious response which occurred.
- Thirdly, the plaintiff seeks a finding that the assailant’s group were drinking at the bar for three hours. As I have mentioned previously, there is no particular evidence which connects the group at the bar observed by Mrs Reese with the group from which Mr Packer’s assailant came. Nevertheless, it is reasonable to think that the group from which the assailant came had probably been drinking for some hours.
- Fourthly, the plaintiff seeks a finding that the group at the bar became drunk after about one hour. Such a finding does not necessarily carry Mr Packer’s case very far. The evidence in support of it came from Mrs Reese, who was observing the group at the bar from a distance. Mrs Nicholls’ evidence did not support Mrs Reese’s evidence. However, it is a little unrealistic to expect Mrs Nicholls to remember the state of sobriety of a particular group at the bar on the particular day. Overall, I don’t think there is enough evidence to support the precise finding sought.
- Fifthly, the plaintiff seeks a finding that the group continued to become louder over the following two hours. Again, I do not think there is enough evidence to support the precise finding sought.
- Sixthly, the plaintiff seeks a finding that TSSCA’s bar staff and island crew had the opportunity to observe the assailant’s group at the bar and to moderate or stop their alcohol intake and monitor their behaviour. The language in which the findings sought is cast obscures more than it makes clear. Since Mrs Reese saw the group behaving boisterously, the bar staff could also see that. TSSCA’s employees, as the responsible persons for the operation of the licensed premises, undoubtedly had the power to withdraw alcohol service from the group at the bar. However, noisy or boisterous behaviour does not necessarily require that, or monitoring.
- Seventhly, the plaintiff seeks a finding that CWS had the opportunity to observe the assailant’s group at the bar and to notify one of TSSCA’s staff. It is not clear who on behalf of CWS is supposed to have had the opportunity. If it was Mr Lyden, I accept that he did not in fact observe the assailant’s group.
- Eighthly, the plaintiff seeks a finding that during the approach to the ship, the assailant’s group was loud and swearing in the presence of children. I accept Mr Packer’s evidence (and Mrs Reese’s evidence which tends to support it) that there was swearing in the presence of children as Mr Packer and Alicia mounted the platform and got onto the ship.
- Ninthly, the plaintiff seeks a finding that there was a crew member at the bottom and top of the stairs into the lower deck cabin during boarding. It is not clear to me that there was a member at the bottom of the stairs, although it is possible. There may have been another crew member on the ramp to the gantry platform, which I take to be off the ship. I accept without hesitation that there was a crew member at the top of the stairs into the lower deck cabin area during boarding near where the incident occurred.
- Tenthly, the plaintiff seeks a finding that an inference is open that the assailant’s group was loud and swearing while boarding. I accept that both in Mr Packer’s presence whilst he was with Alicia, and after that in the lower deck cabin when they were at the bar, the assailant’s group was swearing and using inappropriate language loudly enough so that it was rightly offensive to Mr Packer, as an adult in the company of children, located at the rear of the lower deck cabin.
- Eleventhly, the plaintiff seeks a finding that when the plaintiff boarded the MV 2000, the assailant’s group was swearing loudly within hearing distance of the crew member at the bottom of the stairs. I do not make that finding because I do not make the finding that there was a crew member at the bottom of the stairs..
- Twelfthly, the plaintiff seeks a finding that when the plaintiff boarded the MV 2000 the assailant’s group was loud and swearing loudly enough to be heard by the crew member at the top of the stairs. At least from when the assailant’s group were at the bar in the cabin, I accept that was so.
- Thirteenthly, the plaintiff seeks a finding that the plaintiff approached the assailant’s group and asked them to stop swearing in front of the children. I accept that was what happened.
- Fourteenthly, the plaintiff seeks a finding that he was struck from behind by the assailant. I accept that was the fact, and as well that the assault was as I have previously described it - sudden, unprovoked, and made without warning of any kind.
- The plaintiff seeks a finding that it was reasonably foreseeable “that the assailant would become violent as he as part of the group that was swearing and oblivious to the presence of children”.
- The connection proposed by that submission is between violence and a group where there is swearing oblivious to the presence of children. In my view, there is no logical connection between the two things, per se. The circumstances prior to the assault are more complex than that. The proposed finding as to foreseeability does not even mention the role that alcohol is suggested to have played in the relevant events. Nor does it explicitly recognise that the duty of care proposed entails foresight of the risk of an assault which constitutes the criminal conduct of a third party.
- As it happens, and perhaps not unexpectedly, there are several cases which have considered the obligations of a person conducting business on licensed premises, to protect a patron against the risk of injury from other persons on the premises who drink to excess, and there are cases which deal with the obligation of an employer to an employee in relation to the risk of injury from assault or assaults by third parties in connection with the employee’s employment.
Duty of care - TSSCA
- The plaintiff accepts that, in general, there is no duty to protect a person from criminal conduct of third parties, but submits that such a duty can arise where a party undertakes the care, supervision or control of a person, or assumes responsibility for their safety. That proposition may be accepted as a starting point, with the proviso that “the person affected might reasonably expect that due care will be exercised”.
- As an alternative view, the plaintiff urged the approach of the Court of Appeal of the Victorian Supreme Court that a duty of care in respect of injuries suffered by the criminal violence of a third party might arise on the part of the licensee of licensed premises from disorder or a state of affairs created by the licensee.
- That particular characterisation stems from the following passage:
“…it may be seriously questioned whether the case is rightly characterised as one of harm arising from criminal conduct. The other view was that what we have here is harm arising from disorder – a commotion, a human eruption or convulsion or conflagration – not to be analysed in terms of the particular criminal acts which injured the plaintiff but to be viewed more broadly as a state of affairs, and as one created by the club.” (emphasis added)
- Whether there is a general category of that kind is something I need not consider. In referring to “what we have here” the Court of Appeal was referring to a situation “where liquor is to be sold to large numbers of people at nocturnal entertainments extending over a long period of time” and where there is “a general recognition that the use of crowd controllers is usual and (given that there are to be such entertainments) appropriate”. In my view it is unnecessary to further discuss that kind of situation in the present case. The day trip excursion of the two groups on the MV 2000 to McLarens Landing for drinks, lunch and water entertainments over a period of a few hours was not that kind of occasion.
- The plaintiff relied on a number of cases as relevant to the duty of care owed by TSSCA to the class of persons of whom Mr Packer was a member, being the passengers on the MV 2000 undertaking the day trip to McLarens Landing and return. He referred to Adeels Palace Pty Ltd v Moubarak as a leading case. I accept that it is, recognising that, as previously stated, there are a number of potentially analogous cases concerning the liability in negligence of a licensee or person operating licensed premises.
- There is no dispute that, as the licensee or operator of licensed premises on the MV 2000 and at McLarens Landing, and as operator of the day trip cruise, TSSCA owed a duty of care to passengers on the MV 2000 returning from McLarens Landing to Mariners Cove at the end of the day trip. Such a duty would ordinarily be expressed as a duty to take reasonable care to avoid a foreseeable risk of injury to those passengers.
- The plaintiff sought to formulate the duty of care by reference to the duty owed by an occupier to a contractual entrant as “a duty to make the premises as safe as reasonable care can make them which is non-delegable”. It is unnecessary in this case to consider whether the duty is non-delegable. TSSCA did not delegate the responsibility of management, or to take reasonable care to avoid a foreseeable risk of injury to its passengers. It carried out those functions through its directors and employees, who were under the direct control of the directors and managers of this relatively small “family” business.
- Further, it does not seem to me that the analysis of the plaintiff’s claim is advanced by characterising his status as that of a contractual entrant on the footing that some other categorisation might justify a lower standard of care than might be required of an occupant of the premises to a contractual entrant. The point of the distinction relied on by the plaintiff is that where a person is a contractual entrant and there is a contract between the parties for entry and use of premises for a mutually contemplated purpose, the contract will contain an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them. Notwithstanding that proposition, it does not seem to me that the problem in the present case is further or better analysed by reference to the cases which support that formulation of the standard of care.
Breach of duty - TSSCA
- The question of critical importance is what is it that constitutes the alleged breach by TSSCA of the duty of care owed to the class of persons, being passengers on the MV 2000, of which Mr Packer was a member? The answer to that question has to be answered on the facts of the present case. To an extent, the question and answer are informed by the analysis which has occurred in some of the cases which deal with licensed premises that I have already mentioned. In the end, notwithstanding the number of different ways in which the plaintiff sought to put his case by way of particulars of negligence, the complaint which is made in the present case is that TSSCA failed to control the continued presence or behaviour on its premises of the assailant’s group.
- As Adeels Palace shows, and stated above, there is no difficulty with the general concept that TSSCA owed a duty of care to patrons, including Mr Packer. And I would add that the duty of care is informed by the circumstance that TSSCA was serving alcohol to passengers and visitors to McLarens Landing. Accordingly, 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 person in the position of TSSCA should have taken which it did not take? The particulars of the plaintiff’s allegation of negligence against TSSCA do not assist much. They are cast in terms that there was negligence in failing to “ensure” safety, or that patrons did not become intoxicated, or in “exposing” the plaintiff to risk or “allowing the plaintiff to be assaulted”. One particular identified that there was not but should have been “adequate security”.
- The plaintiff tendered a number of reports by a witness who held himself out to be an expert in matters of security. In a large measure, the reports regurgitated the contents of statutes and case law and comprised answers to questions about “crowd controllers”. In my view, they did not focus or address the circumstances that actually related to 2 December 2006 day trip with any precision.
- The factual assumptions on which the report was premised were not precisely accurate. So, for example, the expert was asked to assume that while walking onto the platform to board the ship for the return trip Mr Packer asked the assailant and his party to tone down their language and that the ship’s staff “were in the vicinity” when that occurred. Mr Packer did not say so or that the response he was given was made in the presence of any member of the ship’s staff.
- Secondly, the expert was asked to make the assumption that after Mr Packer boarded the MV 2000, within the space of one or two minutes, one of the members from the other party approached him and assaulted him. That is not what occurred. Mr Packer approached the group again to ask them to tone down their language. It was while he was making that request that suddenly, unexpectedly and without prior warning, he was assaulted from behind.
- Least persuasive of all, the expert purported to express opinions about whether a competent crowd controller would have heard the earlier interaction between Mr Packer and members of the assailant’s group, and been able to “proactively” identify, intervene and “de-escalate” the situation so as to avoid the assault. In my view, this is not the subject of proper expert evidence.
- In my view, there was no failure to exercise reasonable care on the part of TSSCA in failing to have specialist “crowd controllers” or other security personnel in addition to the 10 crew members who were manning the MV 2000 on the return journey from McLarens Landing to Mariners Cove. In reaching that conclusion I have taken into account the nature of the day trip on 2 December 2006, the identities of the two groups involved, their numbers and composition, as well as the likely agenda for the day’s activities and the time over which the events were planned, as facts known to TSSCA,
- To the extent that prior case law informs the answer to what is essentially a factual question, I note that there is some similarity between this case and the difficulty faced by the Court in Adeels Palace, because of the plaintiff’s inability to identify with precision what security personnel should have been provided, or when and where, in order to discharge the defendant’s obligation of reasonable care. The High Court took into account, in relation to licensed restaurant premises, the numbers attending the restaurant, the types of customers and whether the venue had a history of violent incidents in concluding that there was nothing in the history which would have warranted the conclusion that there was any probability of violence erupting in or about the restaurant.
- The point was also made that whether reasonable care would require precaution to be taken against the risk is something to be determined prospectively, and the answer in any particular case turns on the facts proved in evidence. There is no rule about whether or when security personnel should be engaged by the operators of licensed premises as a matter of generality.
- Similarly, Wagstaff v Haslam involved a detailed analysis of the factual circumstances in which it was alleged that the managers of the bar of hotel premises had negligently failed to intervene to prevent an assault by a drunken patron on another patron. That analysis shows that it is important to bear in mind that it is not necessarily a risk at some level of generality that calls for intervention to curb the activities of a particular patron. The case law shows that it is appropriate to look for some kind of threat in the circumstances, as they unfolded, of which the licensee is aware or ought to have been aware, and which calls for action.
- In the present case, the highest points to which the plaintiff’s evidence climbed was Mrs Reese’s observation of boisterous conduct of the unidentified group at the bar followed by Mr Packer’s evidence of the group of four or five being loud and swearing in the presence of children as they got onto the MV 2000 (and continuing in the vicinity of the bar after they entered the cabin on the lower deck). There was nothing in that conduct which gave an inkling that the situation was either likely to or might produce violence.
- Specifically, I have considered whether it was a breach of duty for the crew member who was positioned at the top of the stairs to fail to intervene to request the assailant’s group to quieten down so as not to disturb other passengers before the assault on Mr Packer occurred.
- Let it be accepted that the crew member who was at the top of the stairs towards the rear of the lower deck cabin assisting and counting passengers into the cabin observed that the group of four or five were swearing loudly, as seems not unlikely. According to Mr Packer, the group went straight to the bar. As Mr Packer said, it was only a minute or two after entering the cabin when he went up to the group of four or five and he was assaulted. Also, it seems that at that time the last of the passengers were still boarding the MV 2000, which would have called for that crew member to continue that task until completed, unless something required his immediate attention elsewhere.
- 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”.
Duty of care - CWS
- There was also no dispute that CWS, as employer, owed the plaintiff a duty of care as employee in contract and in tort, or that the duty of care encompasses an obligation to take reasonable steps for the safety of the employer’s workers.
- Again, the plaintiff relied on statements to the effect that the duty of care was a non-delegable duty. That proposition may also be accepted as indisputably correct and as not requiring further discussion. The question in the present case is: to what extent was CWS, as employer, responsible to take care for the safety of its employees as passengers on the MV 2000 on the return journey from McLarens Landing?
Breach of duty - CWS
- Given that I have found that TSSCA, as operator of the MV 2000, and as licensee of the licensed premises at McLarens Landing and on the ship, was not in breach of the duty of care it owed to the plaintiff as a passenger for the return journey on the MV 2000 to Mariners Cove, it might be thought otiose to consider the question whether CWS was in breach of its duty of care, as employer, to take reasonable steps for the safety of its workers, including Mr Packer, on that return journey.
- Although contemporary standards of care in 2014, as a matter of fact, may well be different from the circumstances which prevailed 50 years ago when ACI Metal Stamping & Spinning Pty Ltd v Boczulik was decided, a passage from Kitto J’s reasons for judgment in that case is still apt:
“Whether a breach of a master’s duty of care for his servant’s safety be regarded as a breach of contract or as a tort … the duty is to take all reasonable precautions against injury to the servant ‘in the course of his employment’ … But as Lord Cranworth was at pains to make clear in his judgment in [Brydon v Stewart] … ‘the course of the employment’ is not a narrow conception. It extends beyond the period of work to every situation in which the master sustains the character of master towards the servant. … Such a situation may exist even after the servant has left his place of work at the end of a day …. It may exist (though what is required for its performance may be very little) even in a case where the servant is exercising his right as a member of the public to pass along a public highway … [but] if, for example a master gratuitously presents his servant with a theatre ticket, he is not master in respect of the servant’s exercise of the liberty the ticket gives him in the theatre, and accordingly he owes the servant no duty of care while there.”
- I do not mean to say that the facts of the present case are precisely the same as an employer giving a theatre ticket to an employee. The Christmas party day trip to McLarens Landing was one where it is possible that CWS could have exercised control over Mr Packer or other employees if that was appropriate and circumstances called for something to be done on the part of the employer. However, CWS had no control over other passengers on the day trip or over TSSCA. In my view, it is quite unrealistic in the circumstances of this case to predicate that CWS’s duty of care as employer to Mr Packer as an employee required it to audit conditions at McLarens Landing and on the ship on boarding for the return journey in the manner submitted by the plaintiff.
- 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.
- To the extent necessary, I reject the evidence given by the expert called by the plaintiff as to the obligations of an employer in CWS’s position in arranging the excursion for the Christmas party or in its alleged acts or omissions on 2 December 2006.
- Because I have already concluded that there was no breach of duty either by TSSCA or by CWS associated with the assault upon Mr Packer on the MV 2000, it is not strictly necessary to deal with the question of causation.
- However, if, contrary to my findings above, it was a breach of TSSCA’s duty of care for the crew member towards the top of the stairs to fail to leave the task of boarding and counting passengers and direct the group of four or five to quieten down so as not to disturb other passengers, would the assault on Mr Packer have been avoided, so that he would not have suffered the loss and damage of which he complains?
- Case law accepts that the plaintiff bears the onus of proof on the balance of probabilities to show that the loss or damage sustained by Mr Packer would not have been suffered but for TSSCA’s breach of duty. This is not one of those situations where a “but for” analysis of the question of causation in fact is inappropriate. The cases previously mentioned show that where the loss or damage in question is caused by the criminal assault of a drunken third party, a plaintiff in the position like Mr Packer may face a significant hurdle in discharging the onus of proof of causation in fact.
- Notwithstanding that high hurdle, in this case, 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.
- Because I have already concluded that there was no breach of duty either by TSSCA or by CWS associated with the assault upon Mr Packer, it is also not strictly necessary to deal with the question of quantum of damages. However, a few brief findings are appropriate, as those issues were tendered for trial.
- There was almost no dispute as to the physical consequences of the assault. Mr Packer’s facial injuries required the insertion of two plates and nine screws to reconstruct facial bones. He had trouble with some of the screws. He had right sided facial pain, headaches, episodes of blurred vision, and other neuropathy. He has a permanent numbness on the right side of his face. He complains of continuing and ongoing headaches, loss of memory function and poor concentration.
- One contentious issue as to the injuries caused by the assault is that Mr Packer alleges that the ongoing headaches, memory problems and poor concentration are caused by the injuries he suffered in the assault. The reports from consulting and forensic neurosurgeons and psychiatrists differ as to the aetiology of the plaintiff’s ongoing symptoms and the causal significance of the injuries. The psychiatrists agree that the plaintiff has an adjustment disorder caused by the injuries. They could not agree upon the role in that disorder of the plaintiff’s social phobia. Their treatment recommendations varied too. Their reports were out of date, in any event, having been prepared in 2010.
- The plaintiff submits that the award of damages for pain and suffering should be $65,000. The first defendant submits $60,000. The second defendant submits $60,000 too. I assess the amount at $65,000.
- The plaintiff claims past expenses in the sum of $1,800.00. I allow that sum as his past special damages.
- The plaintiff claims future special damages in the total amount of $10,000 including future psychiatric treatment of $3000. I allow the total amount of $5,000 only, in the absence of up to date evidence as to the plaintiff’s need for psychiatric treatment as a result of his injuries at trial.
- The most contentious issue on quantum is the effect of the plaintiff’s injuries on the plaintiff’s earning capacity, whether for past loss of earnings or future economic loss. It is to this issue that the plaintiff’s criminal history, both before and after his injury, is relevant. That history shows that the plaintiff’s employment has been regularly interrupted by the terms of imprisonment he has served. The details are not contentious and it is not necessary to set them out.
- For the plaintiff, the claim is made that his past loss of earnings is represented by the difference between the hypothetical amount he would have earned if he had stayed in employment by CWS, at a wage of $720 per week as at the date of the assault, and the amount he has since in fact earned. The resultant sum is $130,000. I reject that basis of assessment. It turns on two factual assumptions not proved.
- First, it assumes that the plaintiff would have continued in that or similar employment if not injured in the assault. The plaintiff said that he was fired from his employment at CWS because of his inability to work on Saturdays which was caused by his injuries. Although he thinks that, I do not accept that is what happened. As Mr Lyden said, employment at CWS was casual, and depended on work availability. The downturn in the building trades at the Gold Coast after the global financial crisis and consequent downturn in the construction industry is notorious. The plaintiff tried unsuccessfully to continue to get work as a waterproofing applicator in 2009. He was unsuccessful in getting regular work.
- Second, it assumes that other events in the plaintiff’s life, including relationship breakdowns, continued drug and alcohol abuse, and conviction and imprisonment for criminal offences would not have occurred. My sympathy for the plaintiff over his undeserved injuries and regard for the manner in which he gave his evidence does not mean I can overlook the effect of those facts in the assessment of the hypothetical fact whether the plaintiff would have maintained employment with CWS (which went into liquidation possibly because of difficulties in the construction industry) or an equivalent employer over the period from the assault to the time of trial.
- Reflecting the inherent difficulty of making an assessment of the possibilities, the first defendant submits that the assessment of past economic loss should be made in the global sum of $65,000, allowing 50% of the sum claimed. The second defendant submits $20,000, reflecting about 15.4% of the sum claimed.
- In my view, the appropriate assessment of past economic loss should reflect that the possibility of the plaintiff maintaining full employment if he was not injured was low, because of matters other than the injuries which he sustained, yet compensate him fairly for the fact that his injuries have contributed to the extent that he has not worked. On a global basis, I assess the loss as fairly measured as equivalent to 25% of the possibility of the full time working capacity which the plaintiff’s claim assumed that he would otherwise have obtained. The resultant amount is $32,500.
- The plaintiff claims future loss of earning capacity assessed on the assumption that it is represented by a loss of employment of 10 hours per week over a period of 24 years, using the appropriate discount tables, and further discounted by 15%. The result is $140,000. The first defendant submits the amount should be $75,000. The second defendant submits $40,000.
- As to future economic loss, the plaintiff is presently employed full time in a job he obtained with the assistance of a family member after release from his most recent term of imprisonment. I do not consider that his current employment is necessarily affected by his injuries or reflects some presently ongoing economic loss of great significance, such as the loss of 10 hours per week he would otherwise have worked.
- I am unable, therefore, to accept the basis of the plaintiff’s assessment and calculation of future economic loss. I would again treat future economic loss as appropriately assessed on a global basis, on the footing that the plaintiff has the prospect of working longer hours in the future than at present and that the ongoing effects of his injuries to some extent may cause him to lose the benefit of those opportunities as a loss of his earning capacity. I would allow $40,000.
- It is unnecessary for me to assess loss of superannuation contributions or interest in the circumstances where I have found that the plaintiff’s case fails on the issue of negligence.
 I will call the MV 2000 a ship, because of that description on its certificate of registration, but recognising that neither the historical nor the dictionary meanings of ship would classify it as such.
 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 265 .
 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447.
 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447, 460 .
 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447, 457 .
 (2009) 239 CLR 420.
 Wagstaff v Haslam (2007) 69 NSWLR 1; Roney v Priestman (2005) TASSC 52; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447; and Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91.
 Watson v George (1953) 89 CLR 409, 424; Morawski v State Rail Authority of New South Wales (1988) 14 NSWLR 374; Downunder Rock Café Pty Ltd v Roberts (1998) Aust Torts Reports 81-481; Alagic v Callbar (2000) 10 NTLR 86.
 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 440 .
 (2007) 69 NSWLR 1.
 Wagstaff v Haslam (2007) 69 NSWLR 1, 15 ; Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91, 99-100.
 Chordas v Bryant, 100.
 Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 842-3; Andar Transport Pty Ltd v Bramble Ltd (2004) 217 CLR 424, 439.
 (1964) 110 CLR 372.
 (1964) 110 CLR 372, 378-9.
 Adeels Palace, 440 – 443 -; Wagstaff v Haslam, 16-17 -; Chordas v Bryant (Wellington) Pty Ltd, 100-102.
- Published Case Name:
Packer v Tall Ships Sailing Cruises Aust P/L & Anor
- Shortened Case Name:
Packer v Tall Ships Sailing Cruises Australia Pty Ltd
 QSC 212
29 Aug 2014
- White Star Case: