In the following Alert, Special Counsel Brooke Jacobs discusses
the plaintiff's failed appeal following the above decision.
In a common sense decision, The Queensland Court of Appeal in
Packer v Tall Ship Sailing Cruises Australia Pty Ltd
 QCA 108 has dismissed the plaintiff's appeal against the
licensed operator of a boat cruise. The plaintiff was seeking
damages for facial and neurological injuries he sustained after
being assaulted by an unidentified intoxicated patron of the cruise
in December 2006. The plaintiff initially pursued both his
employer, who arranged the cruise, and the licensed operator of the
cruise, however his claim was unsuccessful.
The plaintiff appealed the decision as against the licensed boat
cruise operator only, arguing that the trial judge erred in not
finding that patrons of the cruise had been drinking heavily for
some hours and were intoxicated, swearing and confrontational
preceding the assault. The plaintiff argued that the conduct of the
intoxicated patrons posed a reasonably foreseeable risk of harm and
enlivened a duty in the licensed boat cruise operator to take
preventative measures. The plaintiff further argued that the
licensed boat cruise operator's duty extended to limiting the
alcohol consumption of patrons and providing security guards to
monitor patrons who became intoxicated and disorderly.
In terms of the duty of care owed, the Court of Appeal referred
to the High Court's decision in Adeels Palace Pty Ltd v
Moubarak (2009) CLR 420 (Adeels) which found
that the relevant duty was to take reasonable care in the conduct
of activities on licensed premises, which duty was not absolute. In
Adeels, the High Court held that "unless the risk to be
foreseen was a risk of a kind that called for, as a matter of
reasonable precaution, the presence 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."
The Court of Appeal did not accept that the evidence went so far
as to demonstrate that the patrons were intoxicated and any more
than boisterous and found that there "was no indicia of
physical violence" and therefore that it was open for the
trial judge to find that it was not reasonably foreseeable that an
assault may occur.
The Court of Appeal confirmed the trial judge's finding that
the plaintiff's claim was "not further advanced by
characterising his status as that of a contractual
The Court of Appeal concluded there was no factual or legal
error and dismissed the appeal with an order that the plaintiff pay
the licensed boat cruise operator's costs.
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.
This article examines common coverage issues and considerations for granting indemnity for criminal fines and penalties.
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