Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108

Further to the earlier posting the plaintiff’s appeal was dismissed.

Boddice J with whom Gotterson JA and Flanagan J concurred:

Foreseeability

[49] The appellant had also sought a finding it was reasonably foreseeable “the assailant would become violent as he was part of the group that was swearing and oblivious to the presence of children”. The trial judge declined to do so, observing the issue of foreseeability required a consideration of all of the surrounding circumstances. That conclusion was plainly correct. The circumstances are not limited to swearing and the presence of children. They include the presence of alcohol and foresight of the risk of an assault by the unidentified assailant.

Duty

[50] In Club Italia (Geelong) Inc v Ritchie[19], it was recognised a duty of care can exist on the operator of licensed premises, for injuries suffered as a consequence of the criminal actions of another which arose from disorder created by that operator. However, the form of that duty depended on whether the particular circumstances supported a conclusion the harm arose out of disorder as part of a state of affairs created by that operator.

[51] The importance of the particular circumstances to the form and content of any such duty was expressly recognised by the High Court in Adeels Palace Pty Ltd v Moubarak:[20]

“In the circumstances reasonably contemplated before the restaurant opened for business on 31 December 2002 as likely to prevail on that night, Adeels Palace owed each plaintiff a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. … it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises.”

[52] That duty is not absolute. It is a duty to take reasonable care. In the context of the particular contentions in Adeels, namely, that the risk of any exchange of words between patrons would require an immediate and decisive response by persons having the authority of bouncers or crowd controllers, the High Court observed[21]:

“Of course there is always a risk that there will be some altercation between patrons at almost any kind of event. And the risk of that happening is higher if the patrons are consuming alcohol. But unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable precaution, the presence or physical authority of bouncers or crowd controllers to deal with it safely, failure to provide security of that kind would not be a breach of the relevant duty of care.”

[53] The trial judge’s conclusion that the scope of the duty of care owed by the respondent required consideration of the circumstances on the day in question was plainly correct.

Breach

[54] The trial judge found there was no failure to exercise reasonable care on the part of the respondent. That finding followed from the conclusion that even if the crew member at the top of the stairs or, indeed, any crew member located on the ramp, had heard the group that was behaving loudly and swearing rebuff the appellant’s initial approach, they would not have identified there was a risk there might be violent, quarrelsome or disorderly conduct by those patrons. There was, accordingly, no obligation to take steps to exclude the group from the ship, and no failure to exercise reasonable care by failing to have specialist crowd controllers or other crew available.

[55] There was ample evidence to support that finding. Whilst alcohol had been served, and on Mrs Reece’s evidence, members of the Malouf group had indulged to excess, there was no evidence members of that group were involved in “disorder”. There had been no commotion or interchange to suggest a risk of violent aggression to other patrons if members of that group were not controlled by the respondent’s staff, including denying them access to the ship.

[56] Mrs Reece’s evidence that members of the group had been loud and boisterous whilst drinking at the bar did not suggest the group had sought to interact or engage with any other patrons at McLaren’s Landing. Similarly, the evidence of their behaviour when approaching the ship was of being loud and boisterous amongst themselves. There was no pushing of anyone outside their group. Whilst there was swearing, there is no suggestion that swearing was directed toward any other patron.

[57] That members of this group used offensive language, in earshot of others, will not of itself constitute “disorder”, as discussed in Club Italia, or “quarrelsome or disorderly conduct” as discussed in Adeels. Unlike the circumstances in those cases, there was no prior interaction between the two groups and no gesturing, aggressively or otherwise, from the group observed at the bar.

[58] Although the group responded abruptly to the appellant’s reasonable request that they desist in that conduct, there was no suggestion they exhibited any form of aggression towards the appellant. They did not attempt to move in his direction in an aggressive way, or gesture towards him or indicate an intention to continue this interchange. The next contact occurred when the appellant again approached this group, and sought to remonstrate further with them.

[59] The circumstances, viewed as a whole, did not raise a foreseeable risk a member of this group would engage in a violent attack on the appellant. There was no indicia of physical violence to others from this group. As the trial judge observed, there was no conduct which gave “an inkling that the situation was either likely to or might produce violence”.[22]

[60] Further, the circumstances as they unfolded did not give rise to any conduct warranting eviction by the respondent. Any risk of an exchange between this group and the appellant did not, as a matter of reasonable precaution, call for members of the Malouf group to be refused permission to board the ship, or require the presence of crew as security guards or controllers.

Contractual duty

[61] A finding the appellant was also owed a duty to make the premises as safe as reasonable care can make them, by reason of his being a contractual entrant, would not have altered the trial judge’s ultimate conclusion. The trial judge therefore correctly concluded the appellant’s claim was not further advanced by characterising his status as that of a contractual entrant.

[62] The steps that had been taken by the respondent rendered the premises as safe as reasonable care could make them. There were no further steps the respondent could reasonably be expected to take in all the circumstances. There was no suggestion the respondent sought to delegate responsibility for the taking of reasonable care in respect of foreseeable risk of injury to an entrant.

Conclusion

[63] The trial judge made no material factual error. There was also no error of law. The trial judge correctly concluded the appellant’s claim must be dismissed.

David Cormack – Brisbane Barrister & Mediator

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