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Worker king hit at Christmas party on boat cruise fails to establish negligence at trial

 In the case of Packer v Tall Ships Sailing Cruises Australia Pty Ltd & Another (2014) QSC 212, Mr Packer brought a claim for serious injury he sustained when he was king hit whilst on a day cruise aboard the MV 2000 on the Broadwater on the Gold Coast.

Mr Packer, a 35 year old waterproofer was, along with 45 colleagues, enjoying a Christmas work party on the cruise boat which involved a one hour cruise across the Broadwater from Mariners Cove at Main Beach to McLarens Landing near Tipplers Passage, when he was king hit.

The charter trip was organised by Tall Ships Sailing Cruises Australia (“Tall Ships”).  There was a crew of ten persons responsible for passenger safety, bar service and on-board catering.

Also on the cruise was another work christmas party being held by Malouf Marine, who were made up of 20 revellers.  Overall, there were around 111 people undertaking the day cruise, including women and young children.

During the cruise, the charter boat stopped for lunch and various water activities at McLarens Landing. The lunch, which included bar and restaurant facilities, was also organised by Tall Ships.

Both Mr Packer’s work group and Malouf Marine’s party had purchased the “drinks package” on the tour, which was provided both on the charter boat and at McLarens Landing, although Malouf’s package included spirits.

As passengers were reboarding the charter boat to return to Mariners Cove, approximately 4 or 5 of the Malouf party were being very loud and boisterous, and using loud and offensive language. This was happening in the presence of women and children on the boat.  This was the first time Mr Packer confronted the group and asked them to refrain from using offensive language in front of the women and children on the boat.

Mr Packer’s request was ignored and the group, who proceeded straight to the bar on the boat after boarding, continued to party loudly, using loud and offensive language. The crew were still attending to the boarding passengers at this time, when Mr Packer again confronted the group and told them to keep their language under control. However, before Mr Packer could finish making his objection, he was king hit by one of the inebriated revellers in the right side of his face, knocking him to the ground.

Mr Packer suffered serious nerve damage to his face as a result of the attack, including the need for metal plates to be inserted into his face, loss of feeling to the right side of his face, and nerve palsy.

Mr Packer sued Tall Ships and his employer for his injuries, on grounds that both parties failed to provide him with a safe environment whilst participating in his work party on the boat cruise. He claimed that Tall Ship’s crew should have been aware of the high alcohol consumption of the Malouf party both during the cruise and whilst at McLarens Landing, and of the escalating situation upon the party’s reboarding of the charter boat following their time at McLarens Landing. He also claimed that Tall Ships should have engaged crowd controllers or bouncers to oversee the Christmas party revellers on the boat, as alcohol was involved.

In response to these allegations, Justice David Jackson determined that there was no failure to exercise reasonable care on the part of Tall Ships. Justice Jackson stated:

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”.

Mr Packer also argued that Tall Ships failed to meet their duty for “responsible service” of alcohol on the cruise in failing to curtail the drinking of the inebriated party, in particular the assailant, and failed to observe the escalating risk from same.

The Court held that the evidence as to the alcohol intake of the Malouf party and the assailant presented by the Plaintiff at trial was too unspecific to warrant a finding that the crew of Tall Ships should have been placed on alert as to the danger.

Accordingly, Mr Packer failed to prove negligence on the part of Tall Ships. The Court also failed to find any negligence on the part of Mr Packer's employer. Justice Jackson ruled that, in the circumstances of the event, the injury was not reasonably foreseeable by the employer.

Mr Packer’s claim was therefore dismissed and he was ordered to pay the legal costs of Tall Ships and his employer.

For another case that failed when an employee was assaulted during the course of work, see the case of Adlington v Dominos Pizza Enterprises Pty Ltd [2016] QDC 84 and our article on same at the following link: Pizza worker fails in his claim for work assault.

 

If you have been injured at work or whilst participating in a work event, contact us at The Personal Injury Lawyers who may be able to assist with any claims or enquiries.

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