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.
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
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
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.
Judge 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.
Judge 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
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
Judge 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
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.
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.
Whereas most insurance policies exclude liability arising under contract, insurers can
positively benefit where an insured has limited or excluded its liability under contract.
This usually arises where the insured's contract has a limitation or exclusion of liability clause in the insured's favour.
The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
Last week the Australian Securities and Investments Commission (ASIC) initiated a major inquiry into life insurance claims practices.
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