August 30, 2014

A year end staff & family day trip to Stradbroke Island ended in a king hit from another passenger that knocked out and seriously injured one of the workers.
Jay Packer, a 35-yr-old waterproofing applicator with 45 colleagues, their families and children who boarded the MV 2000 in December 2006 for the one hour cruise across the Broadwater from Mariners Cove at Main Beach to McLarens Landing, near Tipplers Passage.

He was in the Commercial Waterproof Service’s party.

The other group that Tall Ships Sailing Cruises Australia (“TSSCA”) had opened the charter up to, was Labrador boat shop, Malouf Marine who contributed 20 more passengers to the total compliment of 111-day trippers.

TSSCA also operated the bar and restaurant facilities at McLaren’s Landing and provided jet ski, kayaking and boat tube rides. A 10-person crew was responsible for all safety issues and provided onboard catering that included bar service for the return voyage from McLaren’s.

On arrival at the island, all passengers were free to do what they chose in the water or ashore. Both groups had purchased a ‘drinks package’ for the island bar but only that of the Malouf group included spirits.

As the passengers re-boarded the vessel for the return crossing, Jay requested some of the other party to refrain from loud offensive language, given the presence of women and children. That didn’t happen. The colourful language was repeated by the lively group “of four or five” after they passed a crew member assisting and counting passengers into the cabin at the top of stairs that formed the entry to the lower deck.

The apparently inebriated group went straight to the ship’s bar. Their out-of place behaviour continued.

Jay intervened again to stop the loud swearing.  But before he could finish his request, a fist slammed into the right side of his face from behind and knocked him to the ground. He sued his employer and TSSCA for the occupational and domestic consequences of his injuries. Jay’s case was that the crew should have been alert to the risk – in that they ought to have seen the high alcohol consumption ashore or the actual confrontations he had with the drinkers – and should have intervened to de-escalate the situation to avoid the assault.

Alternatively, it should have engaged specialist “crowd controllers” or other security personnel to prevent such an episode. Against these contentions, Justice David Jackson ruled there was no failure to exercise reasonable care on the part of TSSCA.

“In my view, failure to act in the relatively short interval that elapsed between when the assailant’s group entered the lower deck or were swearing at the bar and when the assault occurred was not a failure to take reasonable care for passengers’ safety, judged without the benefit of hindsight. On the contrary, the assault was sudden, unexpected, unprovoked, instantaneous and unpredictable”.

Because the last of the passengers were still boarding the vessel, the crew member was still engaged in assisting and counting in the passengers.  The time interval was too short to warrant him to divert from that task and his immediate attention elsewhere.

But Jay had also argued the alcohol consumption of his assailant, or the group to which he belonged, was relevant to determine the “responsible service” duties, that the operators ought to have observed for the benefit of patrons.

One of the CWS party nursing a child for most of the stopover testified of a “loud and boisterous group which included a couple of ladies” went “straight to the bar” and were “drinking cocktails, shots and spirits” for the whole three hour period.

On the other hand, the bar manager couldn’t recall anyone drinking to excess.

The bar drinking evidence so ruled the court, lacked sufficient specifics – as to quantities consumed or behaviour apparent – to warrant a finding that the boat crew ought to have assumed some alarm.

Thus Jay failed to establish any grounds for his compensation claim against the vessel operators. Likewise, he also failed in his claim against his employer because such an injury was not foreseeable.

He was ordered to pay the legal costs of both successful defendants.

Packer v Tall Ships Sailing Cruises Aust P/L & Anor [2014] QSC 212 Jackson J 29/08/2014

Categories: Personal Injury , Litigation & Law Practice

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