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HG Insurance and Risk Alert: Employer and boat cruise operator escape liability for attack on the high seas - 4 September 2014

In this Alert, Senior Associate Brooke Jacobs discusses a case where in a common sense decision, the Queensland Supreme Court recently dismissed a claim for damages in negligence against the boat cruise operator and an employer for injuries suffered by a worker assaulted on a Christmas party cruise.

The facts

On 2 December 2006, the worker attended a Christmas party day cruise organised by his employer, Commercial Waterproofing Services Pty Ltd (CWS) and conducted by Tall Ship Sailing Cruises Australia Pty Ltd (Tall Ship).  The cruise travelled from Mariners Cove at Main Beach to McLarens Landing on South Stradbroke Island.  Tall Ship operated a venue at McLarens Landing that included restaurant and bar facilities, as well as more family friendly activities such as jet skis and tube rides.

The cruise had 111 passengers, including the worker’s group from CWS, which comprised about 90 people, including partners and children.  There was a group of about 20 adult passengers from Malouf Marine (MM) of the Gold Coast.  Both groups had access to a “standard beverage package” (beer, wine and softdrinks) from 12.00pm to 4.00pm, although the group from MM were also entitled to spirits.

The cruise was licensed and manned by 10 crew and about seven service staff.

At approximately 3.00pm, as the passengers were reboarding the ship at McLarens Landing to return to Main Beach, the worker was assaulted by a member of the MM group.  Just prior to the assault, the worker had apparently asked the MM group on two occasions to watch their language around the children.  The worker was struck with a blow to the back of his head without warning.

Decision

Justice Jackson accepted that both Tall Ship and CWS owed a duty of care to the worker. 

The duty owed by Tall Ship was to take reasonable care to avoid a foreseeable risk of injury.  The duty owed by CWS was to take reasonable care for the safety of its workers.

Justice Jackson did not consider it reasonably foreseeable to Tall Ship or CWS that the rowdy group from MM would become violent, finding “there was nothing... which gave an inkling that the situation was either likely to or might produce violence.”

His Honour found that Tall Ship did not breach its duty of care by failing to provide “crowd controllers” on the day cruise.  It was also not in breach for its crew having failed to intervene, given the quick succession of events leading to the assault.

Justice Jackson found that CWS had no control over other passengers and that it was “quite unrealistic... to predicate that CWS’s duty of care... required it to audit conditions... in the manner submitted”.  In particular, there was no evidence that anyone on behalf of CWS was aware of any risk of the kind which eventuated when the worker was assaulted.

Although not strictly necessary to deal with the issue of causation, His Honour went on to say that if Tall Ship had intervened by one of its crew asking the MM group to quieten down, he accepts that the worker on the balance of probabilities would not have been injured.  There is some prospect that this finding will encourage the worker to appeal, at least insofar as the dismissal of the action against Tall Ship. 

Key points

  • The courts still uphold the general principles put forward in the case of Modbury Triangle; that only in exceptional circumstances a duty arises to protect a person from the criminal conduct of third parties;
  • There is no strict liability of employers, particularly where they lack control over premises, persons or situations; and
  • Not every licensed event or operation requires the operator to retain crowd control.

For more information on insurance and risk matters, please contact HopgoodGanim’s Insurance and Risk team.

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