The case of Packer v. Tall Ship Sailing Cruises Aust Pty Ltd and Commercial Waterproofing Services Pty Ltd explores the potential liability of an employer and a tourism operator for acts of violence by a third party during a work function.
Jay Packer (the Plaintiff) was employed by Commercial Waterproofing Services (CWS). He was attending his work Christmas party. It +was a family day which included partners and children, including the Plaintiff’s two children. A group of approximately 90 people travelled by ship (The MV 2000) from Mariner’s Cove at Main Beach to McLaren’s Landing on South Stradbroke Island. There they had access to bar and restaurant facilities and other activities, including jet skis and tube rides. Both the ship and the venue were operated by Tall Ship Sailing Cruises Aust Pty Ltd (Tall Ships). Both were licensed premises. The Christmas party included a drinks package.
CWS were not the only work group aboard the ship. There was also a smaller group from Malouf Marine (Malouf).
The injury to the Plaintiff occurred shortly after re-boarding the ship for the return voyage to Mariner’s Cove at about 3.00pm. The Plaintiff’s evidence was that whilst re-boarding he noticed a group of 4 or 5 people from Malouf who were swearing and carrying on in a drunken manner. He asked them to tone it down as it was a family day out. A short time later he approached the group at the bar and asked them if they could keep the language down as there were women and children on board. He was then struck from behind in an unprovoked assault.
The Plaintiff suffered serious injuries and brought a claim against both CWS and Tall Ships.
The court held that whilst both CWS and Tall Ships owed the Plaintiff a duty of care, neither of them had breached that duty, given the circumstances on the day in question.
There was no evidence that CWS was aware of the risk of an altercation, in the circumstances. Further, they had no control over the other passengers.”
Similarly, there was nothing to alert Tall Ships to the situation that developed. The assault was “sudden, unexpected and came without prior warning”.
Unfortunately for the Plaintiff, although he suffered serious injuries in the assault, he was left without recourse against CWS and Tall Ships.
The case highlights that cases like these turn on their particular facts and, in particular, whether the evidence shows some kind of threat in the circumstances which the employer or operator were aware of and which called for action to be taken.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).