Court of Appeal

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Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 (14/8824) Gotterson JA and Boddice and Flanagan JJ 19/06/2015

Full-text: QCA15-108.pdf

Catchwords

TORTS – NEGLIGENCE – ESSENTIALS OF ACTIONS FOR NEGLIGENCE – DUTY OF CARE – where it was accepted that 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 – where it was accepted that 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 – where the operator had a liquor license and had served alcohol to the assailant – where the trial judge found that the scope of the duty of care owed by the respondent required consideration of the circumstances on the day in question was correct – whether the trial judge erred in that decision

TORTS – NEGLIGENCE – ESSENTIALS OF ACTIONS FOR NEGLIGENCE – DUTY OF CARE – REASONABLE FORESEEABILITY OF DAMAGE – where the appellant had sought a finding it was reasonably foreseeable the assailant would become violent, as he was part of the group which was swearing and oblivious to the presence of children – where the trial judge declined to do so on the basis that the issue of foreseeability required a consideration of all of the surrounding circumstances – whether the trial judge erred in that decision

TORTS – NEGLIGENCE – ESSENTIALS OF ACTIONS FOR NEGLIGENCE – where the operator had two groups on board a catamaran – where the operator had a liquor license and had served alcohol to the assailant – where the assailant’s group had been loud and boisterous while consuming alcohol, and had sworn in the presence of children – where the respondent had asked the assailant’s group to cease swearing and had been rebuffed – where the respondent had ten crew members but had not engaged specialist crowd controllers – where the appellant submitted that the respondent should have had specialist crowd controllers or other crew available – where the trial judge found that even if the crew member 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 – where the trial judge found there was no failure to exercise reasonable care on the part of the respondent – whether the trial judge erred in that decision

Summary Notes

General Civil Appeal – Torts – where the respondent operated a pleasure cruising business on the waterways of Moreton Bay – where the operator had two groups on board a catamaran – where the operator had a liquor license and had served alcohol to the assailant – where the assailant’s group had been loud and boisterous while consuming alcohol, and had sworn in the presence of children – where the respondent had asked the assailant’s group to cease swearing and had been rebuffed – where the respondent had ten crew members but had not engaged specialist crowd controllers – where the appellant submitted that the respondent should have had specialist crowd controllers or other crew available – where the trial judge found that even if the crew member 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 – where the trial judge found there was no failure to exercise reasonable care on the part of the respondent – where it was accepted that 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 – where it was accepted that 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 – where the operator had a liquor license and had served alcohol to the assailant – where the trial judge found that the scope of the duty of care owed by the respondent required consideration of the circumstances on the day in question was correct – where the appellant had sought a finding it was reasonably foreseeable the assailant would become violent, as he was part of the group which was swearing and oblivious to the presence of children – where the trial judge declined to do so on the basis that the issue of foreseeability required a consideration of all of the surrounding circumstances – where the circumstances as they unfolded did not give rise to any conduct warranting eviction by the respondent.. Appeal dismissed. Costs.