Rawlings v Royal Caribbean Cruises Ltd

[2020] NSWDC 822

District Court

New South Wales

Medium Neutral Citation:

Rawlings v Royal Caribbean Cruises Ltd [2020] NSWDC 822

Hearing dates:

20 – 23 April 2020; 22 May 2020; 1 – 5 June 2020

Decision date:

22 December 2020

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

(1) Verdict and judgment for the Plaintiff in the sum of $97,344

(2) Subject to any application to my Associate by 1 February 2021, to relist the matter for any further or other order as to costs the Defendant is to pay the Plaintiff’s costs

Catchwords:

FALSE IMPRISONMENT – Where the Plaintiff is a passenger on a cruise ship operated by the Defendant – Where the Plaintiff is detained in a cabin on the cruise ship following alleged sexual assault– Whether the Captain was justified at common law to detain the Plaintiff for that time – Whether the Captain was contractually justified in detaining the Plaintiff

DAMAGES – Aggravated and exemplary damages Claim– Civil liability claim – Whether the Plaintiff suffered psychological/psychiatric injury

Legislation Cited:

Civil Liability Act 2002 (NSW)

Crimes at Sea Act 2000 (Cth)

Evidence Act 1995 (NSW)

Jervis Bay Territory Acceptance Act 1915 (Cth)

Cases Cited:

Cubillo v Commonwealth (No 2) (2000) 103 FCR 1

Hook v Cunard Steamship Co [1953] 1 Lloyd’s Rep 413

Prison Officers Association v Iqbal [2010] All ER 663

Ruddock v Taylor (2005) 222 CLR 621

Sangha v Baxter (2009) 52 MVR 492

SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56

State of New South Wales v Riley [2003] NSWCA 208; 57 NSWLR 496

State of New South Wales v Zreika [2012] NSWCA 37

The Lima (1837) 3 Hag Adm 356

Watts v Rake (1960) 108 CLR 158

Texts Cited:

LexisNexis, Halsbury's laws of Australia

Category:

Principal judgment

Parties:

Daniel Rawlings (Plaintiff)
Royal Caribbean Cruises Ltd (Defendant)

Representation:

Counsel:
Mr D. Stanton (Plaintiff)
Mr J. Sheller SC (Defendant)

Solicitors:
Walker Law Group (Plaintiff)
HFW Australia (Defendant)

File Number(s):

2019/71056

Publication restriction:

Pursuant to s 9 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is a non-publication order for the name and anything that may identify the Complainant which is to operate throughout the Commonwealth of Australia for a period of 20 years. The grounds for the order is that it is necessary to protect the safety of the person pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). The pseudonym “A” will be used.

Pleadings and Procedure - paragraph 2

Witnesses - paragraph 8

EVIDENCE - paragraph 18

Arranging the Cruise - paragraph 19

Drug and Alcohol Use on the Cruise - paragraph 28

Interaction with Ms Miles: 13 – 14 November 2016 - paragraph 33

Meeting at the Schooner Bar – 14 November 2016 - paragraph 46

Attendance at Dizzy’s Night Club and interaction with A – 14 November 2016 - paragraph 50

Leaving Dizzy’s Night Club - paragraph 61

Attendance in Plaintiff’s Cabin - paragraph 66

Security Investigation - paragraph 81

The Plaintiff and Mr Champion are taken to the Conference Room- paragraph 142

Decision to Isolate on 15 November 2016 - paragraph 171

Plaintiff Isolated - paragraph 193

Interaction Between A’s mother and Ms Miles - paragraph 202

Further Investigations 15 and 16 November 2020 - paragraph 208

Arrival in Noumea - paragraph 217

Meeting With A and Her Mother – 17 November 2016 - paragraph 267

Meeting with the Plaintiff - paragraph 285

The Confinement from 17 November 2016 onwards - paragraph 289

Advice from Port Agent - paragraph 297

Altercation Outside Cabin - paragraph 306

Arrival in Sydney – NSW Police Investigation  - paragraph 314

LIABILITY - paragraph 342

Contractual Claim - paragraph 351

Common Law claim - paragraph 355

DAMAGES

Assessment - paragraph 414

Pre-Incident Health - paragraph 427

Post Incident treatment - paragraph 435

Submisions - paragraph 506

ORDERS - paragraph 523

Judgment

1. The Plaintiff brings proceedings against the Defendant asserting that he was falsely imprisoned between 15 November 2016 and 20 November 2016 during which period he was a passenger on a cruise ship known as Explorer of the Seas (the Ship), operated by the Defendant.

Pleadings and Procedure

2. The matter was originally listed for hearing to commence on 20 April 2020 with an estimate of 3 days. On that occasion, the Defendant sought to amend its Defence. Following argument the matter was stood over to the following day, to enable the Plaintiff to obtain answers to particulars requested in relation to the Proposed Amended Defence. That request being made and responded to, [1] the Plaintiff did not object to the Proposed Amended Defence. Consequently leave to rely on it was granted. [2] A Further Amended Defence was filed by the Defendant with consent on Day 6 of the proceedings. [3]

   1. VD Exhibit 2.

   2. T 26.42-.45.

   3. T 298.28-.40.

3. By that Further Amended Defence the Defendant admitted that it was the operator of the Ship and was liable for the acts and omissions of its servants and agents. It further conceded that on 10 November 2016 the Plaintiff boarded the ship at Sydney on a ten day South Pacific cruise returning on 20 November 2016. [4]

   4. Further Amended Defence at [1].

4. The Defendant pleaded that as operator of the Ship it was justified at common law to deal with the Plaintiff in a reasonable manner and for a reasonable time as was necessary for the preservation of order and for the safety of persons or property on board including the Plaintiff. [5]

   5. Further Amended Defence at [1].

5. The Defendant further contended that the cruise was subject to a ticket contract which, amongst other things, comprised a Guest Conduct Policy and Involuntary Confinement Policy, the terms of which were relied upon for their full meaning and effect. [6]

   6. Further Amended Defence at [2]

6. The Defendant admitted that the Plaintiff was detained on 15 November 2016 for 10 hours but asserted that it was justified contractually and at common law to do so because of its belief that such confinement was necessary for the preservation of order and for the safety of the persons and/or property on board in light of investigations undertaken. [7] It further admitted that it continued to detain the Plaintiff thereafter until 20 November 2016 when he was permitted to disembark the ship. [8]

   7. Further Amended Defence at [5]-[5A].

   8. Further Amended Defence at [6].

7. In short the Defendant contended that it was:-

1. Permitted, by reference to the contract between it and the Plaintiff, to detain him; and

2. As well or alternatively, the detention was lawful at common law.

Witnesses

8. The Plaintiff himself gave evidence before me by audio-visual technology (AVL).

9. Due to technical difficulties experienced by the use of AVL due to COVID-19 restrictions and that a number of witnesses were either interstate or overseas, I ordered that the remainder of the witnesses provide their evidence in chief by way of written statements. [9] Accordingly, the Plaintiff relied on the witness statements of Ms Tegan Miles [10] and Mr Matthew Champion, [11] both of whom were cross-examined by the Defendant by AVL.

   9. T 73.28-.36 and T 222.10-.19; r 31.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

   10. Exhibit B.

   11. Exhibit C.

10. Mr Champion was a friend of the Plaintiff who stated that he had known the Plaintiff since he was 17 years of age. [12] He accompanied the Plaintiff on the cruise and shared the same cabin with him until 15 November 2016.

    12. Exhibit A1, Tab 1 at 46, [3].

11. Ms Miles was aged 18 in November 2016 when she was a passenger on the same cruise undertaken by the Plaintiff. In her evidence, she stated she first met the Plaintiff on the cruise, having not met him previously. [13] She was present in his cabin on the occasion in question which led to the ultimate decision to confine the Plaintiff.

    13. Exhibit B at [6].

12. The Defendant relied on the following:-

1. Statement of Captain Richard Sullivan, Captain of the Explorer of the Seas, dated 22 May 2020. [14] He stated that as Captain he had final authority on a vessel, and was charged to carry out the Defendant’s policies and to ensure compliance with all applicable national and international laws and regulations. He described his primary responsibility as the safety and care of all persons on board, the Ship’s seaworthiness, navigation and operation, and the prevention of pollution. [15]

   14. Exhibit 2.

   15. Exhibit 2 at [5].

2. Statement of Mr Panagaiotis Panagopoulos, Staff Captain, dated 23 May 2020. [16] He described having responsibilities which included assisting the Captain on matters pertaining to security, safety, navigation maintenance and ethical issues.

3. Statement of Mr Ira Warder (undated). [17] Mr Warder was a Senior Investigator in the Global Security Department of the Defendant based in Miami, Florida. Mr Warder stated that in his role he was responsible for providing guidance and recommendations for captains, officers and crew on-board the vessels of the Defendant in relation to security related matters.

4. Statement of Mr Douglas Mark Williams dated 24 May 2020. [18] Mr Williams commenced employment with the Defendant as a Senior Investigator in or around 2015 based in Miami, Florida. In that role his responsibilities also included providing recommendations to the Captain, Staff Captain, Chief Security Officer and security on-board a vessel if there was ever a security incident on a vessel.

5. Statement of Mr Prasad Ambujam Sreedharan, Chief Security Officer, (undated). [19] Mr Sreedharan was the Chief Security Officer on board the Ship. In his position, he served as the Ship’s security specialist and was responsible for executing the shipboard security systems and policy. In that position he was notified of all security incidents on board the Ship and was the primary or chief investigator. He stated that he was required to inform the Staff Captain of all security incidents and what action the security on board were taking, which needed approval from the Staff Captain. He also stated that he needed authorisation from the Staff Captain and/or Captain to ask guests to leave a room and to seal a room.

6. Statement of Dr Andrew Clarey dated 19 May 2020. [20] Dr Clarey was a doctor on board the Ship owned by the Defendant, having commencing employment as a Cruise Ship Physician around September 2016. [21]

   16. Exhibit 3.

   17. Exhibit 5.

   18. Exhibit 6.

   19. Exhibit 7.

   20. Exhibit 4.

   21. Exhibit 4 at [4]-[5].

13. Captain Sullivan, Mr Panagopoulos, Mr Warder, Mr Williams and Mr Sreedharan also gave oral evidence. Dr Clarey was not required for cross-examination

14. In line with the practice direction at the time documentary evidence relied on by the parties was tendered in the form of a Joint Court Book. [22]

    22. Exhibit A1.

15. Included therein were security incident statements provided to the Defendant on 15 November 2016, as well as statements provided to police by Ms Gezina Strydom on 20 November 2016, [23] the Complainant “A” on 23 November 2018, [24] and A’s mother on 4 January 2018. [25] Also incorporated were security incident statements provided to the Defendant on the 16 November 2016 [26] from Mr Jordan Bascur and Ms Aya Houda and a statement provided to police on 5 January 2017 [27] from Mr Jordan Bascur. All were passengers on board the Ship who witnessed some events relevant to these proceedings.

    23. Exhibit A1, Tab 1 at 62.

    24. Exhibit A1, Tab 1 at 15.

    25. Exhibit A1, Tab 1 at 28.

    26. Exhibit A1, Tab 27 at 575.

    27. Exhibit A1, Tab 1 at 42.

16. There were also a number of other security incident statements principally from staff on board the Ship. These will be referred to in the body of these reasons.

17. Also within the Joint Court Book was a joint report of Dr Stephen Allnutt, for the Plaintiff, and Dr John Chalk, for the Defendant, [28] as well as their respective individual reports. [29] Both were psychiatrists qualified by each of the parties and they participated in a joint evidence session.

    28. Exhibit A1, Tab 52 at 932

    29. Exhibit A1, Tab 39 at 757; Exhibit A1, Tab 53 at 942; Exhibit A1, Tab 54 at 951.

EVIDENCE

18. At the outset, it should be noted that there is added complexity to this matter due to the events taking place over multiple timezones. Due care has been taken by the parties and myself to reduce the number of discrepancies and to ensure an accurate timeline of the events. Where there has been some contention as to the order of events between what the parties submit and I have found, I have noted it in a footnote along with reasoning for my decision. To ensure consistency and simplicity, all references to time are that of the timezone on the ship, being UTC +11 (NCT).

Arranging the Cruise

The Plaintiff

19. The Plaintiff’s evidence was that in 2016 he and Mr Matthew Champion [30] decided to go on a cruise and share a cabin. The Plaintiff stated that he had been cruising annually, having been on cruises with his grandmother since he was a toddler, and it had become a bit of a tradition. [31] To book the trip, he made a reservation through a company known as “Oz Cruising” to board the Ship’s cruise of the South Pacific. The Plaintiff and Mr Champion paid a deposit of $100 each to secure the tickets for the cruise, which was to leave Sydney and return on the earlier mentioned dates. [32] He stated that he went on the trip with Mr Champion in November as he was looking for cruise deals and was unaware that it was schoolies time as he had never himself attended schoolies. [33]

    30. T 46.37-.39.

    31. T 46.45-47.04.

    32. T 47.19-.31.

    33. T 128.20-.31.

20. The terms and conditions of the cruise was set out in a document, that included the following clause:-

36 Eligibility to travel and guest behaviour

Refusal of booking request or passage

To facilitate our ability to continue to provide safe and enjoyable cruises to our guests, we reserve the right to refuse to accept a booking request from an individual or group and reserve the right to cancel an existing reservation. If, in our ship’s Master or Doctor’s reasonable opinion, you are or appear to be unfit to travel for any reason or pose a risk or danger to yourself or a danger to others or behave in such a way as to cause or be likely to cause danger, upset or distress to any third party or danger to property, we are entitled without prior notice to refuse to allow you to travel on any shop and to terminate your cruise holiday at any time. You may then be left at any port or place at which the ship calls without our incurring any liability. You will have to pay any costs, expenses or losses suffered as a result, and we will not pay any compensation or give you any refund. Once your holiday has been terminated in this manner, we will not have any further responsibility towards you. The same right to refuse to allow you to travel or to use any services applies where you are or appear to be unfit to travel or otherwise behave badly as set out above during any other part of your holiday.

If you have failed to give proper notice of any physical or mental disability or condition (including informing us of any change or deterioration in any notified disability or condition) which will or may require care beyond that which any travelling companion or we ourselves can reasonably provide, we are entitled to refuse to allow you to travel. However, at our discretion the cruise only fare may be refunded.

Guest behaviour

On every Royal Caribbean International ship, we are committed to providing every guest with an excellent cruise holiday. You can view the Guest Conduct policy on our website at Any guest breaching our Guest Conduct Policy may at our absolute discretion be disembarked to us at their own cost. [34]

34. Exhibit A1, Tab 7 at 435; T 47.41-.44.

21. The Guest Conduct Policy provided:-

This Guest Conduct Policy is intended to help ensure that all guest are able to participate in a safe and enjoyable cruise experience and sets forth standards of conduct for guests to follow though out their Royal Caribbean vacation, including transfers to and from ships, inside terminals, while on-board, at ports of call, during shore excursions and at our private destinations. This policy is not intended to be all inclusive, and it is likely there will be conduct issues that it does not specifically address. In the event, as in all others, the Ship’s Captain will take appropriate action to ensure the safety, security and well-being of our guests. In addition to this policy, there are also US and foreign laws that apply to Royal Caribbean guests. [35]

35. Exhibit A1, Tab 10 at 445.

22. The Plaintiff stated that he did receive some emails from Oz Cruising but he could not recall any specific document as it was in a format he was unable to access on his mobile phone. [36] In cross-examination he stated the emails were unreadable with the words overlapping. He stated that he wasn’t able to read all the conditions of the trip nor was he able to read any conditions or documents relating to behaviour. [37]

    36. T 47.46-.49.

    37. T 114.42-115.08.

23. The Plaintiff stated that he was not sure if he had access to a Guest Conduct Policy prepared by the Defendant but in any event did not read it. [38]

    38. T 184.05-.08.

24. The Plaintiff accepted that he paid the balance of the cruise fare on 14 July 2016. [39] Thereafter, he proceeded to check in online and he and Mr Champion arrived at the Overseas Terminal on 10 November 2016 to board the Ship. [40] Following boarding, they were allocated Cabin 6277. [41] The cruise destinations were not in issue and were as follows:-

    39. T 48.01-.03.

    40. T 48.05-.13; T 183.01-.04.

    41. T 52.45-.46.

• 10 November 2016 - Sydney, Australia

• 13 November 2016 – Lifou, Loyalty Island

• 14 November 2016 – Vila, Vanuatu

• 15 November 2016 – Mystery Island, Vanuatu

• 16 November 2016 – Noumea, New Caledonia

• 17 November 2016 – Isle of Pines, New Caledonia

• 20 November 2016 – Sydney, Australia[42]

  42. Statement of Claim at [5]; Further Amended Defence at [2].

25. The Plaintiff largely accepted that this was so. [43]

    43. T 52.48-53.21.

26. The Plaintiff was also questioned about the papers he was given on behalf of the Defendant when he boarded the Ship. He stated that he couldn’t remember being given a document called a Guest Ticket Booklet, nor did he recall seeing a document with his name and Mr Champion’s name on it. [44] He stated that he didn’t print anything off that had been emailed to him. [45] He didn’t read any document as his reading skills were poor and it was challenging for him to read large documents. [46] He conceded that he had been on many cruises. [47] He acknowledged that there may have been paperwork in the room when we arrived on the vessel, but he didn't read any documents or any pamphlets. [48] He also stated that he did not follow any internet links from the guest ticket booklet or any other document. [49] Nor he did inform himself as to what the guest conduct policy was on board the Ship. [50] There was evidence that the Guest Conduct Policy was found in the guest services directory in every room on board the Defendant’s vessels. [51] The policy included what was outlined at [21].

    44. T 182.25-.44.

    45. T 182.48-.49.

    46. T 183.06-.11.

    47. T 183.13-.14.

    48. T 183.31-.35.

    49. T 183.37-.42.

    50. T 183.44-184.25.

    51. Exhibit 3 at [32].

Mr Champion

27. Mr Champion described the Plaintiff as a happy person and that when he saw him out socially he observed him to be having a good time. [52] So far as the cruise was concerned, he recalled it being booked some 12 months in advance. Since that time he met his partner who fell pregnant. [53] He stated that the first three nights of the cruise were uneventful and that he went to bed early most nights because he was more interested in seeing the islands than partying. He described the Plaintiff as going to the nightclubs most nights to party. [54]

Drug and Alcohol Use on the Cruise

52. T 274.41-.49.

53. T 275.01-.20.

54. Exhibit A1, Tab 1 at 46, [4].

The Plaintiff

28. The Plaintiff acknowledged that he took cocaine onto the Ship when he boarded on 10 November 2016 and accepted he was in possession of an illegal substance. [55] He stated that he thought he took on two grams of cocaine but couldn’t recall exactly how much. [56] He acknowledged the length of the cruise but didn’t accept that it was likely more than two grams that he took on board as he didn't always acquire the same amount every week and there wasn't always an unlimited supply. [57] Despite having earlier stated that he was not sure the amount took on board he later stated that he believed he only had two grams with him. [58] He stated that it was “definitely correct” that he had consumed all the cocaine he had taken onto the Ship before any of the nights in question. [59]

    55. T 111.40-112.32.

    56. T 112.49-113.24.

    57. T 113.36-.43.

    58. T 114.02-.07.

    59. T 114.09-.12; T 128.49-129.02.

29. So far as his alcohol consumption at the time of the cruise he accepted that it would make sense that he would purchase an unlimited drinks packages adding that there were a couple of different unlimited drinks packages. [60]

    60. T 114.14-.37.

30. It was put to the Plaintiff that in light of the fact that he knew he wasn’t able to take cocaine on board, he wasn’t particularly concerned about the rules applying on the Ship when he got on it. He rejected this, stating that he wasn’t concerned about the cocaine because it only impacted on him and rules that would impact other passengers he would care about. [61]

    61. T 115.10-.27.

31. It was put to the Plaintiff that given his personal history at the time he got on the Ship in November 2016, including his use of alcohol and drugs, his criminal convictions which included for supply cocaine and additives, and the fact that he took cocaine onto the Ship knowing that it was a criminal offence to do so, that he was not someone who should be trusted. He rejected this. He stated that he did break the law and take cocaine on the Ship but it was for personal use which he felt was a victimless crime. He stated that that did not mean that he would disregard all the rules. [62]

    62. T 175.42-176.01.

Mr Champion

32. Mr Champion stated that he was aware that the Plaintiff took cocaine on to the Ship and he observed him using it but couldn’t indicate where he kept it. He stated that he was not using it in the presence of others but was using it in his cabin. [63] Nor was Mr Champion aware whether there was any cocaine left over after the incident. [64] He reiterated that whilst the Plaintiff was on the cruise to party, he had just found that he was going to be father and was playing it pretty quiet. He stated that he had a condition known as deep vein thrombosis for which he was still receiving medication for at the time. [65]

Interaction with Ms Miles: 13 – 14 November 2016

63. T 275.29-.47.

64. T 276.03-.08.

65. T 276.18-277.12.

The Plaintiff

33. The Plaintiff stated that on the evening of 13 November 2016, he and Mr Champion went to the nightclub on board the Ship known as “Dizzy’s”, which was located on Deck 14. [66] He stated that normally things would “kick off” around 10pm and that would have been around the time they would have attended. [67] There, he stated that he met Ms Miles. [68] She was not someone he knew before the cruise, having first met her that evening. He stated that his recollection was having some drinks, chatting to different people, meeting Ms Miles and dancing with her. Thereafter, he invited Ms Miles back to his cabin. [69] He stated that whilst he had some physical contact with Ms Miles at the nightclub he did not display affection with her, but he did observe her drinking alcohol. [70] He stated that Ms Miles appeared to be affected by alcohol, in that she was dancing energetically and was lively, talkative and very friendly. [71] When they went to his room, the Plaintiff stated that Ms Miles stayed with him and they had sexual intercourse. [72] Thereafter they both fell asleep.

    66. T 53.23-.29.

    67. T 53.35-.40.

    68. T 53.42-.44.

    69. T 54.06-.13.

    70. T 54.15-.20.

    71. T 54.31-.36.

    72. T 54.43-.47.

34. The next morning, the Plaintiff observed that Ms Miles wasn’t feeling well. [73] The Plaintiff stated that she had a high heart rate, and was jittery and anxious, which he described as “like a panic”. [74] The Plaintiff woke Mr Champion up and said to him that something was wrong. He then proceeded to contact the reception and got onto the medical centre. He later went with Ms Miles to the centre to make sure that she was okay and stayed with her to comfort her while the doctor did various checks and tests. [75] At that point he stated that he was told that the doctor believed she had had too many Red Bull vodkas and caffeine in her system. [76] The Plaintiff stated that he was in the centre for an hour or possibly two. Thereafter, Ms Miles went back to her room. [77]

    73. T 55.06-.07.

    74. T 55.09-.11.

    75. T 55.13-.19.

    76. T 55.21-.23.

    77. T 55.25-.29.

Mr Champion

35. Mr Champion recalled that on 13 November 2016 he went to bed about 11pm or 12am. He recalled the Plaintiff coming back at about 3am with a girl called Tegan. He believed that they were both intoxicated because of how loud they were. He described the room as having two single beds and he was sleeping in one of the beds, with the Plaintiff and Ms Miles having sex in the other bed. The following morning he recalled the Plaintiff shaking him and telling him that there was something wrong with Ms Miles. He asked whether she had taken anything and was told that she had only been drinking. The Plaintiff then called Ms Miles’ roommate who came down, and security and a doctor were called. He stated that after a while everyone had left the room and presumed that Ms Miles was taken to the medical centre. He went back to sleep. The Plaintiff later told him that Ms Miles had too much caffeine and she had a reaction to the Red Bulls she had been drinking. [78]

    78. Exhibit A1, Tab 1 at 46-7, [5].

36. In cross-examination Mr Champion was given the opportunity to read his police statement. In doing so he acknowledged the seriousness of the incident involving Ms Miles on the morning of 14 November 2016. [79] Mr Champion stated that the persons who were in the room, being himself, the Plaintiff, Ms Miles and Ms Miles’ roommate did not leave the room before the doctor and security arrived. [80] He stated that his recollection was that they all left together. [81]

    79. T 279.50-280.06.

    80. T 279.09-.12.

    81. T 279.14-.16.

Ms Miles

37. Ms Miles recalled spending the evening with the Plaintiff commencing 13 November 2016 after meeting at the Schooner Bar. She stated that they enjoyed each other’s company and thereafter returned to the Plaintiff’s room to have sex. During the course of the evening she had been consuming Red Bulls and Vodka and stated that she was mildly affected by alcohol, but knew what she was doing and was happy to spend time and have sex with the Plaintiff. Following sex in the Plaintiff’s cabin they fell asleep. The following morning she confirmed waking up feeling unwell and the Plaintiff called for a doctor to attend and she was later taken to the medical centre on the Ship. At the medical centre, she stated was questioned by staff who alleged that the Plaintiff had drugged her. [82]

    82. Exhibit B at [6]-[11].

38. In cross-examination Ms Miles stated that she had not been back to her room yet and she first saw a nurse and then a doctor in what she believed was the Plaintiff’s room. [83] She did not recall a security person appearing in one of these rooms, but she did remember security speaking to her when she was moved to the medical centre. [84] She conceded that she was feeling quite unwell. [85] She accepted that when she went to the medical centre, it was likely that the doctor and nurse were the same ones which attended to her in the Plaintiff’s room. She reaffirmed that the doctor asked her if she had any recollection of the Plaintiff giving her drugs. [86] When it was put to her that the doctor never said anything specifically about the Plaintiff, she stated that she believed it was specifically him or his roommate. [87] She stated that he either used the Plaintiff’s name or pointed because the Plaintiff was still standing outside the door when this happened. [88] She further reiterated that the doctor asked her whether she had any recollection of that (referring to being given something). [89] Later she stated that she didn’t believe that it was specific to the Plaintiff or his roommate but later added that she didn’t know whether it was the doctor or the nurse. [90]

    83. T 237.24-.40.

    84. T 237.42-.46.

    85. T 238.01-.02.

    86. T 238.44-239.24.

    87. T 239.34-.35.

    88. T 239.37-.40.

    89. T 239.42-.44.

    90. T 240.27-.34.

39. Ms Miles said that she told the security guard that she was not drugged and had not consumed any drugs. She told them she had been drinking Red Bulls and Vodka and the doctor later informed her that she had reacted to the caffeine and alcohol. [91]

    91. Exhibit B at [11].

40. Ms Miles recalled the doctor telling her that her urine test suggested the possibility of a urinary tract infection. [92] She accepted that she was told that she should probably stay off alcohol for 24 hours. [93] She did not remember the doctor saying anything to her about staying away from caffeine. [94] Ms Miles did not recall whether the doctor that she saw in the room and the medical centre was male or female. [95]

    92. T 240.43-.45.

    93. T 241.03-.05.

    94. T 241.07-.09.

    95. T 241.44-.50.

41. Ms Miles was asked whether she recalled the doctor in the medical centre asking her whether she had had any sexual activity over the last night. She indicated that he did. She did not recall denying that she had done so. [96]

    96. T 242.02-.22.

42. Ms Miles stated that after being treated at the medical centre she went back to her cabin and slept for a while. After resting, she went back to the bar to meet some friends and went to order a drink. She discovered that she had been cut off and not allowed to drink. She then proceeded to the customer service centre and after some discussion she was given her drinking card back. [97]

    97. Exhibit B at [12].

43. Ms Miles stated that she believed she rested before intending to go out again, but she did not have a clear recollection as to how she spent that afternoon. Ms Miles said she knew she did not have a lot to drink on the evening of 14 November 2016 as she thought she had consumed too much alcohol the night before. [98]

    98. Exhibit B at [13]-[14].

Dr Clarey

44. Dr Clarey stated that he reviewed a Medical Case Summary and that at around 5.17am on 14 November 2016, he received a call in his cabin from the on-call nurse that there was a female patient, being Ms Miles, who was experiencing breathing difficulties and requested that he attend room 6589. He stated that when he attended there was a male present, who he understood to be the Plaintiff, along with a couple of females. Security were also present. He and the nurse assisted Ms Miles to the medical centre. It was observed that her vital signs showed an elevated heart rate and high blood pressure readings which were not normal in a young female of her age. During the examination, Ms Miles told Dr Clarey that she had consumed a number of vodka Red Bulls, a caffeinated drink. He considered that the symptoms being displayed could have been attributed to the drinks that she consumed. He recommended that she not consume alcohol for 24 hours. Ms Miles denied any drug use and Dr Clarey did not undertake a drug test. When he asked whether Ms Miles had engaged in any sexual activity, he recorded that she denied she had. [99] The clinical notes record that Ms Miles advised she had been at a nightclub, consuming the relevant drinks and going back to the cabin of a friend. At first it was recorded that she stated that the events that happened were consensual, denying sexual assault of any kind. Elsewhere in the notes it was recorded that nothing happened without consent, and Ms Miles denied any form of sexual activity on this occasion. [100]

    99. Exhibit 4 at [7]-[18].

    100. Exhibit 4; Exhibit AC-1 at 9 and 15.

45. In any event Dr Clarey thereafter discharged Ms Miles after examining her and considered that she had the capacity to leave as there was nothing medically further that needed to be done by the medical team. [101]

Meeting at the Schooner Bar – 14 November 2016

101. Exhibit 4 at [19].

The Plaintiff

46. Later on 14 November 2016 the Plaintiff stated that he met Ms Miles again at what he believed was called the “Schooner Bar”. At that point he had been told that because Ms Miles had been feeling unwell there were restrictions on her alcohol that day. [102] He was advised, however, that she was recovering and feeling better. [103] He stated that both of them remained at the Schooner Bar for more than an hour and Mr Champion was there for a portion of the time. [104]

    102. T 55.35-56.05.

    103. T 56.07-.08.

    104. T 56.17-.43

Mr Champion

47. On the night of 14 November 2016, Mr Champion recalled having dinner with the Plaintiff until about 10pm. He said the Plaintiff thereafter stated that they should go to the nightclub however Mr Champion decided to go to bed as there was an excursion to Mystery Island the next day. He went back to his cabin at around 11pm and eventually fell asleep. [105]

    105. Exhibit A1, Tab 1 at 47, [6].

Ms Miles

48. In cross-examination Ms Miles stated that she decided to go back to a bar to meet some friends, and believed that this was the Schooner Bar. [106] While Ms Miles could not remember being advised not to drink she accepted that if she had been given such advice she ignored it. [107] She did recall that after getting her drinks pass restored she began purchasing drinks, but did not remember for how long. She stated that it was highly likely that she got to the Schooner Bar around 3.00pm and was there until just before 11.00pm. [108] When it was put to her that that was around 8 hours, she stated that she didn’t exactly remember. [109] She stated that it was likely that she would've gone for a walk around the Ship and come back, but that she spent most of her days there because she liked the barman that worked there. [110] Ms Miles stated that she didn’t have that many alcoholic drinks as she was spacing out a lot more because of what had happened the previous night. [111] Nevertheless she wasn’t 100% sure as to how many drinks she had while she was at the Schooner Bar. [112]

    106. T 242.35-.43.

    107. T 243.07-.13.

    108. T 243.15-.46.

    109. T 243.48-.49.

    110. T 244.01-.06.

    111. T 244.08-.12.

    112. T 244.14-.16.

49. Ms Miles confirmed that she met the Plaintiff at the Schooner Bar but couldn’t recall how long she was in his company. [113] She stated that the Plaintiff asked her how she was and she stated that she was fine. [114] She stated that she was unaware as to how the Plaintiff was affected by alcohol at Schooners Bar or at Dizzy’s. [115]

    113. T 244.39-.47.

    114. Exhibit B at [15].

    115. T 245.03-.16.

Attendance at Dizzy’s Night Club and interaction with A – 14 November 2016

50. Following attendance at the Schooner Bar, both the Plaintiff and Ms Miles went to Dizzy’s nightclub again. [116]

    116. T 56.45-57.17; Exhibit B at [15].

The Plaintiff

51. The Plaintiff stated that both he and Ms Miles were not drinking as much; however, he had a few drinks. [117]

    117. T 57.23-.25; T 123.37-.42.

52. In cross-examination the Plaintiff reiterated that on the night that he had a few drinks but was “not certain” then adding that it was likely “four or five drinks from the afternoon time to the evening.” [118] He did not buy drinks for anyone. [119] It was suggested to him that he made a dozen or so purchases of drinks and maybe food between 8pm and 2am from the night of 14 November to the morning of 15 November 2016. The Plaintiff stated that he thought that 12 sounded too many. [120]

    118. T 129.04-.07.

    119. T 129.09-.10.

    120. T 129.12-.34.

53. As to the evening of 13 November 2016, he stated that he and Ms Miles had a lot to drink. [121] He accepted that he was more intoxicated that evening than the night of 14 November 2016. [122] He accepted that as he was feeling partially intoxicated on 15 November 2015 when he later came to be in the conference room he must have been intoxicated at 2am that day. [123] However he denied seeking to earlier give a false impression or give incorrect evidence. [124]

    121. T 127.40-.45.

    122. T 127.47-.50.

    123. T 123.28-.32.

    124. T 124.04-.11; T 149.05-.15.

54. The Plaintiff stated that they were watching people dancing, and on occasions they would participate, but spent more time watching every else dance. [125] At some stage during the time that they were there, the Plaintiff said he saw Ms Miles dancing with another girl who he knew as “A”. The Plaintiff had not met A before the evening in question and this was the first time he had seen her. [126] At some point, Ms Miles came back to the table and the Plaintiff told her that he found the girl she was dancing with attractive. Ms Miles responded that she felt the same way. [127] He stated that at one point Ms Miles went back to dance with A and also other people in a group to dance in a circle. [128]

    125. T 57.27-.30.

    126. T 57.36-.49.

    127. T 58.01-.12.

    128. T 58.20-.24.

55. At some stage the Plaintiff spoke to Ms Miles and suggested that they invite A to join them for “a threesome.” [129] Despite the Plaintiff stating that that was the first time he had seen A, [130] he stated that he recalled speaking previously to Ms Miles about having sex with her and another person the previous night. [131] In any event Ms Miles responded that she would like to have a threesome as well, and the Plaintiff stated that he asked Ms Miles to ask A to join them. [132] He said that Ms Miles then went and spoke to A and reported back to the Plaintiff that she was agreeable. He stated that he asked Ms Miles if she would go back and ask A again and confirm that they wanted her to come back to his room to have sex. [133] The Plaintiff stated that Ms Miles did so and they were looking towards him before coming over to the table, at which point he asked A if she would like to have a threesome. [134] The Plaintiff stated that A agreed. [135]

    129. T 58.26-.32.

    130. T 57.47-.49.

    131. T 58.34-.36.

    132. T 59.01-.05.

    133. T 59.13-.19.

    134. T 59.21-.25.

    135. T 59.27-.28.

Ms Miles

56. Ms Miles gave evidence recalling that she and the Plaintiff had spoken about going back to the Plaintiff’s room again. She stated yes, as she had enjoyed her time with him. A discussion took place between the two regarding inviting another girl back for a threesome. She stated that she was happy to do so. [136]

    136. Exhibit B at [16].

57. Ms Miles stated that she had seen A around the Ship before this night but she did not recall having much of a conversation with her previously. The Plaintiff and Ms Miles were sitting at a table next to the dance floor at Dizzy’s when the Plaintiff asked her if she wanted to ask A to come back to his room with them. Ms Miles stated that she called A over to the table and asked her if she wanted to come back to the Plaintiff’s room with the two room of them. She stated that A looked over at the Plaintiff and said yes. [137]

    137. Exhibit B at [17].

58. Despite having stated in Exhibit B at [17] that she called A over to the table at Dizzy’s, in cross-examination she stated she didn’t recall if she approached A or whether she called her over to the table. Nevertheless, when she spoke to A she said that it was loud and she had to get up close up to her ear. [138] She also accepted she might have beckoned or made a signal asking her to come over. [139] She stated that she remembered that she and the Plaintiff had specifically spoken about the sexual activity that was going to happen but she didn’t recall how it was worded to A. [140] At one point, Ms Miles accepted that A was drunk at Dizzy’s, however that she didn’t know much she had drunk, just enough to say that she was drunk. [141] When it was then put to her that she formed that view while she was at Dizzy's that A had probably drunk too much, she didn’t remember. [142] Ms Miles was then taken to her interview with police, in particular question 76. She agreed that she made an observation while at Dizzy’s that A had probably drunk too much. [143]

    138. T 247.27-.31.

    139. T 247.33-.35.

    140. T 247.45-248.04.

    141. T 248.06-.19.

    142. T 248.21-.23.

    143. T 249.06-.20.

56. In further cross-examination Ms Miles stated that when she was at Dizzy’s in the company of the Plaintiff and A she hadn’t drunk much, she was thinking clearly when dealing with A, and was able to realise that A was drunk and had too much to drink. [144]

    144. T 250.37-.49.

57. Ms Miles stated that she did not remember whether there was another person present when she left Dizzy’s with the Plaintiff and A. [145] Ms Miles stated that whilst she agreed that A had had alcohol and was influenced by alcohol, her idea of somebody being drunk doesn’t necessarily mean that they are unable to make decisions. [146] She stated that A knew what she was doing. [147] It was put to her that she didn’t know what A’s ability was to make decisions when drunk, but she stated that by her actions she knew exactly what she was doing. [148] She stated that the observation she made of someone giving A a Long Island Iced Tea was from the next day, when she asked some of the people A was hanging out with on the night. She stated that she didn’t see A getting drinks from anybody. [149]

Leaving Dizzy’s Night Club

145. T 251.43-.45.

146. T 253.32-.38.

147. T 253.45-.46.

148. T 253.48-254.07.

149. T 254.45-.49.

The Plaintiff

61. The Plaintiff stated that they went directly from the nightclub to his cabin with A and Ms Miles in front and Mr Bascur and the Plaintiff following. [150] He stated that he spoke to Mr Bascur and the two girls were talking to each other. He described them as being arm in arm in front. [151] The Plaintiff stated that the two girls were at the door before him and he used his swipe key to open the door and that they went inside. After this occurred, he stated that he followed but he closed the door so Mr Bascur could not enter. [152]

    150. T 59.39-.42.

    151. T 60.01-.11.

    152. T 60.13-.17.

62. In cross-examination the Plaintiff was asked about the condition of A on the morning of 15 November 2016 at the time they left Dizzy's. He stated that she was drunk, having a good time, enjoying everybody's company, talkative and vibrant. [153] The Plaintiff stated that he wasn’t certain of A’s age, but that he knew that she was above 18 because the nightclubs were 18 and above. The Plaintiff stated that he didn’t speak to her about her age and but he did speak to her before they left the nightclub when he asked her if she understood that they wanted to have a threesome with her as Ms Miles had asked her twice before him. [154] He then reiterated that to his observation, A was drunk and that they left the nightclub at about closing time. [155]

    153. T 130.16-.19.

    154. T 130.40-.43.

    155. T 131.23-.27.

63. The Plaintiff was then asked whether he was concerned that A was drunk at the time he was having this conversation with her and she appeared to be much younger than him. He stated that he was not concerned. [156]

    156. T 131.39-132.05.

64. With regard to Mr Bascur he stated that he was under the impression that he was interested in A himself but he was not a part of the leaving party and he was simply following. [157] He stated that he made himself walk with them, that he wasn’t invited and he had no use for an unknown male to join them. [158] He said that he told him this. [159] He stated that he had seen what Mr Bascur had said about the night in question and that he disagreed with him. [160] He stated that he accepted Mr Bascur’s observations to A being drunk, but did not agree that she had consumed 14 Long Island Iced Teas. [161]

    157. T 132.25-.27.

    158. T 132.33-.36.

    159. T 132.38-.39.

    160. T 132.45-.50.

    161. T 133.01-.11.

Ms Miles

65. Ms Miles stated that she remembered leaving Dizzy’s nightclub with A and the Plaintiff walking together towards the Plaintiff’s room. She described that they were talking and laughing together. She stated that from A’s actions and language she thought that she was affected by alcohol, however, she was able to walk, speak, interact and have a laugh with them. She stated that she had no reason to believe that A did not consent to returning with them for a threesome. [162]

Attendance in Plaintiff’s Cabin

162. Exhibit B at [18].

The Plaintiff

66. The Plaintiff described his room as having two single beds, a small amount of floor space and a very small ensuite, estimating dimensions of four metres long by three metres wide. [163]

    163. T 60.19-.22.

67. Following entry, Mr Champion was in his bed but awoke. The Plaintiff said that he did not speak to him. He stated that A was asking him about his occupation and there was talking and kissing. [164] The Plaintiff stated that he thought that A was affected by alcohol. [165] This observation was based on the description by the Plaintiff that she was “very loud, dancing vibrantly, enjoying herself, having a lot of fun.” He described her as “more relaxed that you would be without alcohol.” [166] The Plaintiff had stated that she appeared to be walking fine. [167] He stated that A’s speech was fine and a bit loud. He recalled having to tell both girls to be quieter as Mr Champion was asleep. [168] Thereafter he described himself, A and Ms Miles kissing touching and undressing each other. He then stated they took turns between each other having sex. [169] At one point Mr Champion left the room and stated “Not again”, grabbing his blanket and pillow and stating that he was going out to a deck chair. [170]

    164. T 60.33-.40.

    165. T 60.50-61.01.

    166. T 61.03-.05.

    167. T 61.07-.10.

    168. T 61.12-.16.

    169. T 61.29-.32.

    170. T 61.38-.41.

68. After he left the room, the Plaintiff pushed the two single beds together to make a larger bed, proceeding to resume the sexual activity with the two girls. [171] The Plaintiff said they had sex for several hours which he later refined as more than hour, possibly two. [172] At some point he recalled that A stated, “I feel sick”. He then helped her into the ensuite and she vomited into the toilet and had a shower. [173] Whilst that took place, the Plaintiff stated that at one point he began having sex with Ms Miles, but only after A was feeling better. [174] The Plaintiff stated that he helped A get into the shower and that he showered after her, but they were not in the shower together. After A completed the shower he described her as coming back to the bed and that when he came back from the shower A was on the bed with Ms Miles. [175] The Plaintiff stated that he made the observation that A and Ms Miles were awake. [176] The sexual activities thereafter continued, with each having turns in having sex with each other and at times all partaking. [177] At some point, the Plaintiff stated that he fell asleep with both A and Ms Miles in the bed.

    171. T 61.46-62.02.

    172. T 62.05-.10.

    173. T 62.15-.25.

    174. T 62.27-.30.

    175. T 62.36-.49.

    176. T 63.01-.03.

    177. T 63.11-.16.

69. In cross-examination the Plaintiff agreed that Mr Champion had complained about being disturbed the night before with Ms Miles and that it was his decision to leave. [178] Once Mr Champion left, he accepted that he took over his bed to make a double bed and proceeded to have sexual activity until A complained about being sick. [179] He stated that when A went into the bathroom and vomited it reminded him of the fact that she was drunk. [180] He was then asked about helping A into the shower and stated that both he and Ms Miles helped her. He stated that he thought that for a portion he was with A in the shower and then Ms Miles joined him afterwards. [181] The Plaintiff stated that A said “sorry” after she had vomited. [182] He then stated that after the shower she returned to the bed, and that Ms Miles joined him in the shower where they had sex again, and then went back to the bed. [183] During this time he stated that A was waiting on the bed for them to join her. [184] He conceded that there was more sexual activity with A after he had had the shower with Ms Miles. [185]

    178. T 133.13-.30.

    179. T 134.01-.10.

    180. T 134.16-.20.

    181. T 134.22-.35.

    182. T 135.05-.06.

    183. T 135.09-.14.

    184. T 135.16-.21.

    185. T 135.26-.28.

70. The Plaintiff was asked whether he had positive memory of all of these events happening in that fashion. He stated that it was very positive and everybody had a very enjoyable time. [186] He accepted that A would not have been having a good time while she was vomiting but she certainly enjoyed herself during all the other parts of the night. [187] He stated that she felt much better after she vomited. [188] He accepted that this all occurred at a time he himself was intoxicated. [189]

    186. T 135.30-.35.

    187. T 135.37-.39.

    188. T 135.41-.42.

    189. T 135.44-.46.

71. The Plaintiff at one point stated that he awoke as he heard the sound of the door closing, being when Mr Champion had returned. [190] At that point, A and Ms Miles were in the bed and Mr Champion slept on the floor having made a bed out of cushions. [191]

    190. T 63.18-.29.

    191. T 63.31-.36; T 136.07-.10.

72. At another point the Plaintiff heard that the door again closed and observed that Ms Miles was still in the room but A was not there. [192] There was a third occasion when the Plaintiff stated that he was awoken by the sound of the door, and at that point he noticed that Ms Miles had left as well. [193] After Ms Miles had left he stated that he rolled into his bed completely and Mr Champion pulled his bed across and moved back into his bed. [194]

    192. T 136.28-.30.

    193. T 63.38-.49; T 136.32-.34.

    194. T 64.01-.04.

73. In cross-examination the Plaintiff was next taken to the history recorded by a Dr Halpin where it was asserted that he stated that neither he nor A “remembered what happened”. [195] The Plaintiff stated that when he read that he was confused and not sure as to why Dr Halpin had written that. It was put to the Plaintiff that it was recorded that way because that was what he told him. However the Plaintiff rejected that proposition. [196] It was put to the Plaintiff that he didn’t remember what happened in his cabin on the morning of 15 November 2016. The Plaintiff stated that all of his statements he believed to be true and denied he was misleading the Court. [197] As to what he meant by what he "believe[d] to be true", the Plaintiff stated that it was to the best of his recollection and that he was telling the truth in everything he had said. [198]

    195. Exhibit A1, Tab 3 at 337.

    196. T 126.10-.47.

    197. T 127.28-.31.

    198. T 127.33-.35.

74. The Plaintiff was asked as to the material he had received in relation to the matter. He stated that a bundle was sent to him the week of the hearing, but he hadn’t “been through the bundle.” [199] When asked where the bundle was, he stated that he had an email with a very large file attached. [200] When asked whether he had gone through the bundle at all to look at particular documents he stated that he looked through some of the statements from some of the witnesses. He identified these as A, A’s mother, Ms Miles and Mr Champion. The Plaintiff was then asked whether he had had a look at Ms Miles’ electronic record of interview with police; he stated that he believed so. [201] It was put to the Plaintiff that he had studied the documents closely. He responded that he hadn’t and had just scanned over it. [202] It was put to him that he had been using them to help with his memory of what happened on the night. He rejected that, stating that the only paperwork he had with him were his own personal notes. [203] It was put to him that he stated earlier than he had a look at Ms Miles' statement and her record of interview with the police. He stated that he had some time ago, but there were a lot of pages and that he was not a very strong reader. [204] He accepted that he knew that what Ms Miles said was really important. It was put to him that he read that material closely. He accepted that he had read the material, but that he hadn’t read it multiple times. [205]

    199. T 106.40-.42.

    200. T 106.47-.48.

    201. T 107.03-.12.

    202. T 129.36-.42.

    203. T 129.44-.47,

    204. T 129.49-130.03.

    205. T 130.08-.10.

Ms Miles

75. Ms Miles recalled Mr Champion was in the room when they arrived and they had woken him up. She recalled that he left at some stage. [206] Ms Miles then referred to two statements that she provided in relation to what happened in the room, being the statement given to the Ship’s security dated 15 November 2016 [207] and an interview with NSW Police dated 20 November 2016, [208] both of which are discussed below (see [103] and [325]).

    206. Exhibit B at [19].

    207. Exhibit A1, Tab 14 at 524-6.

    208. Exhibit A1, Tab 1 at 32.

76. In cross-examination Ms Miles confirmed that initially in the room the Plaintiff had sex with A followed by sex with herself. She stated that she could not recall whether a condom was used. [209] Ms Miles’ attention was then drawn to her interview with police where she said that the Plaintiff was using a condom. She stated that now she could not remember because it was four years ago but when compared to her statement at the time she honestly believed that condoms were used. [210] She stated that she didn’t assist the Plaintiff putting the condom on. [211] She also stated that she didn’t observe him removing the condom. [212] She didn’t remember the Plaintiff changing condoms between having sex with A and having sex with her. [213]

    209. T 255.01-.15.

    210. T 255.35-.40.

    211. T 255.45-.47.

    212. T 255.49-.50.

    213. T 256.02-.05.

77. In re-examination Ms Miles was asked as to the observations she had made that allowed her to form the view that A was aware of what she was doing. Ms Miles described that “by her actions, she knew exactly what she was doing” referring to A being able to communicate clearly with her and the Plaintiff. [214] Ms Miles stated that this communication started at Dizzy’s and continued in the room. [215] She stated that walking arm and arm with A sounded like something she would do but she didn’t remember doing it on this occasion. [216]

    214. T 269.19-.23.

    215. T 269.25-.33.

    216. T 269.35-.36.

78. Ms Miles accepted that at some stage A was ill and vomited in the toilet. She stated that she followed her into the bathroom but didn’t remember observing her vomiting in the toilet. She stated that she would have either stood there or stood around the corner a little bit. She stated that A did not appear to be in distress and did not think about calling for medical attention. [217] She stated that thereafter she and the Plaintiff put A in the shower to wash her off and she believed that she just went to bed and fell asleep. She did not recall further sexual activity between the Plaintiff and A thereafter. [218] She stated that on her observation, A remained the same way she was from when they went back to the room to when she fell asleep. [219] She stated that she woke up the following morning and realised that A had left. She woke up a second time shortly after and left herself. [220] She stated that the only observation she recalled from the time she left was that Mr Champion was back in the room. [221] She didn’t recall whether or not Mr Champion was sleeping on the floor, nor did she recall seeing any of A’s belongings in the room. [222]

    217. T 256.31-257.21.

    218. T 257.37-.44.

    219. T 257.46-258.10.

    220. T 258.19-.24.

    221. T 258.33-.35.

    222. T 258.37.-42.

Mr Champion

79. Mr Champion provided a statement in which he largely relied on the contents of what he stated in his security incident statement of 15 November 2016 and his police statement on 6 January 2016 both of which are discussed below (see [110] and [335]).

80. In cross-examination he stated that on the evening of 14 November 2016, he was in the room for about 10-15 minutes, and just couldn't take it anymore and just left the room. He stated that he was quite annoyed and probably did say something in the heat of the moment. [223] He stated that when he left it wasn’t pitch black and he could see where he was going and there would have been some lighting on. [224] As far as discussion was concerned, he wasn’t sure who was laughing and who was giggling, but that they were all having conversations together. [225] He stated he made no observations as to whether anyone was affected by alcohol. [226]

Security Investigation

223. T 281.15-.23.

224. T 281.36-.39.

225. T 282.11-.14.

226. T 282.16-.18.

Mr Sreedharan

81. At 5:39am (local time) [227] on 15 November 2016, Mr Sreedharan stated that he received a call from a security officer in his team named Sandeep that a female guest had been found naked in an unrelated guest’s room. [228] It is not in issue that the room in question was that occupied by Ms Gezina Strydom and that it was she that made the relevant call to ship security. Two security officers attended at first being Mr Shushant Kerkar and Ms Christine Callejo before notifying Mr Sarode. [229] Ms Callejo recorded in her security incident report that A told her at the time:-

“I don’t know what happened. All I know is that I’m dancing in Dizzy’s and I am looking for a bathroom…I am with girls, I only know Teagan.” ^[230]

227. UTC +11 (NCT).

228. T 472.11-.23; Exhibit 7 at [8].

229. Exhibit A1, Tabs 19 and 20.

230. Exhibit A1, Tab 20 at 548.

82. Arrangements were then made to escort A to the on-board medical centre.

83. Mr Sreedharan immediately called the Staff Captain, Mr Panagopoulos, followed by the on-board medical centre to ensure that a doctor and/or nurse could assist when A arrived at the on-board medical centre. [231]

    231. Exhibit 7 at [8].

84. At 5:41am on 15 November 2016, Mr Sreedharan stated that he sent an email to the port agent at Port Villa, Vanuatu requesting that the incident be reported to local law enforcement. That email was titled “Crime Allegation to Report.” [232]

    232. Exhibit 7 at [9]; Exhibit 7, Exhibit PS-1 at 1-2.

85. Mr Sreedharan confirmed that Sandeep was the security officer in the team who reported to him that a female guest had been found naked in an unrelated guest room. He stated that that was all he was told at the time and thereafter at 5.41am he sent an email to the Port Authority Agent entitled “Crime Allegation to Report.” [233] He acknowledged that at that time he was not aware that a crime had been committed. [234] In sending the email at 5.41am, two minutes after he had a conversation with Sandeep, he stated that he was not sure what had happened in terms of a crime or allegation. At that point he did not know anything as to what had happened in relation to A. [235] He accepted that in his mind he decided that some crime had occurred to explain why A was found there. [236] Referring the incident as having occurred at 2.05am, he stated that he obtained that time from the CCTV footage, however later conceded that he had not seen that footage at the time he sent the email. He conceded that he had no recollection as to where the time came from. [237] He acknowledged that the time of 2.05am was when A was still at Dizzy’s nightclub. [238] He accepted that it was he who collected and collated the CCTV footage to identify the people involved. [239]

    233. T 472.25-473.32.

    234. T 473.41-.46.

    235. T 476.08-.20.

    236. T 476.22-.25.

    237. T 476.31-477.01.

    238. T 477.03-.07.

    239. T 477.13-.24.

86. By 5.46am, A and her mother were in the medical centre. [240]

Dr Clarey

240. Exhibit A1, Tab 1 at 55.

87. Dr Clarey stated that he did not personally examine A when she attended. However, he would have received a handover note from Dr Neil Piwovar, the senior doctor on board the Ship, and would have reviewed the Medical Case Summary prior to him commencing his shift. [241] The history recorded in the notes was that A remembered:-

…being in Dizzy’s lounge with other people but does not remember leaving Dizzys lounge or anything else at all until she was knocking her on the door of her mother’s cabin this morning. She states that she drank some alcohol last night that someone else bought for her but she didn’t but [sic] alcohol and thinks she only had a few drinks. [242]

He described to me symptoms and he also described to me functional impairment. That is the fundamental basis for making a diagnosis of a psychiatric condition. You know, when a person presents with depression, anxiety, nightmares, poor concentration, difficulties with memory, loss of interest in socialising, withdrawal, panic attacks, being triggered by things that will affect - that affects their social functioning, interpersonal relationships, that is by definition at least a diagnosable psychiatric condition. The nature of that condition may be then argued amongst us as psychiatrists, but I’m very satisfied that when I saw him in 2018, based on information he provided to me, having the opportunity to interview him, he presented with a diagnosable psychiatric condition, it post-traumatic stress disorder or an adjustment disorder.

You will note in my mental status examination, I pointed out that he had several depressive and anxiety symptoms and what I was referring to there was the symptomatology that he provided, which is consistent with what is required for a diagnosis of a trauma stressor related disorder, which is PTSD an adjustment disorder. I also noted he was anxious and his effect was flat. DSM-IV doesn’t require a person to present in a particular way in mental status examination. The DSM-5 requires a person to just provide a history of symptoms consistent with what is in the DSM-5. And I’m very satisfied that when he saw me in 2018 that he described a constellation of symptoms that most psychiatrists would agree meets the diagnosis of a diagnosable psychiatric disorder. [1103]

1100. T 440.48-441.47.

1101. T 442.05-.19.

1102. T 442.21-.25.

1103. T 442.36-443.09.

501. Dr Chalk accepted that if there was an adjustment disorder, it would be hard to disagree with the general statement that the risk of relapse when exposed to reasonable stressors in the future depending on the nature and severity. [1104]

     1104. T 444.03-.09.

502. In reference to Dr Allnutt’s view in the joint report that the Plaintiff was now in remission, Dr Chalk stated, in his view, that meant that a person had completely recovered from the effects of a psychiatric disorder. [1105] He stated that people can remain vulnerable. [1106] However, he added that you don’t get a relapse of an adjustment disorder, but there may be other events in his life that may cause a similar constellation of symptoms. He would not say that was the same disorder. [1107] Dr Allnutt stated that if one ignores Criterion A then he could say that he has a diagnosable psychiatric condition as a consequence of a trauma and has a pre‑existing vulnerability to being traumatised more easily because of his prior depressive and anxiety vulnerability. He stated that he thought that the risk to further stressors was dependent upon how badly he reacts to those stresses and how impaired he might become. He stated that that couldn’t be predicted was that he was at risk of having a recurrence. [1108]

     1105. T 444.21-.36.

     1106. T 444.40.

     1107. T 444.47-445.13.

     1108. T 445.17-.43.

503. Dr Chalk responded that PTSD has, for a lot of people, a fairly poor prognosis even in the best of treatment. An adjustment disorder, by contrast, is a disorder in relation to a discrete event or a series of events and people actually recover from that. People can be vulnerable to further episodes and the degree of vulnerability can continue, and that may be due to a whole host of factors. He stated that after one episode of a significant psychiatric illness, the risk of a further episode is increased, though the percentage is probably somewhat debatable. He stated that it doesn’t mean that exposed to another series of events that that person will necessarily relapse or have a similar illness, and the point he was trying to make was that if someone, in the abstract, did develop a further adjustment disorder that may or may not be the same illness. He stated that they may have a similar constellation of symptoms, but it’s not the same illness, and it may well have a different prognosis depending upon what has triggered it. [1109]

     1109. T 445.47-446.20.

504. Next, Dr Chalk’s attention was drawn to the fact that during cross-examination the Plaintiff requested a short break and then felt unable to continue. He was asked comment on whether that was genuine in the context of questioning concerning the circumstances which led to his detention. Dr Chalk stated that that would be keeping with the fact that the Plaintiff was describing feeling very upset and anxious about the experience and having to go back and relive it would be upsetting. [1110] Dr Allnutt stated that it was consistent with a person who had to relive an event who reacted emotionally to it and was consistent with an adjustment disorder or PTSD. He stated that it was consistent as one of the core features of post‑traumatic stress symptoms is that they manifest a vulnerability to triggers and stresses that are reminders of a prior traumatic experience, and it would be those kinds of stresses to which the Plaintiff would be most vulnerable to if he was ever accused again or if he was at risk of being re‑traumatised. [1111] He stated that some people with PTSD cannot watch TV that relates to the trauma because it triggers them and they can't go to the place where the trauma happened, they experience flashbacks and panic attacks, and avoid places that trigger them emotionally. He stated that the response was consistent a PTSD or adjustment disorder. [1112] Dr Allnutt added that if the Plaintiff was triggered and suffered a relapse or even if he suffers a new condition to which he is now more vulnerable, it depends on the severity of that condition and the nature of that condition as whether it would impact on his capacity to work.

     1110. T 446.22-.42.

     1111. T 446.44-447.09.

     1112. T 447.11-.18.

505. He noted there was a reference to handwritten notes between 23 August 2018 and 13 September 2018 which refers to panic attacks, and it refers to what seems to be the types of triggers when engaged with lawyers all around the case. He stated that there was a note made by the psychologist on 28 August 2018 which was close to when he saw him and was therefore consistent with his presentation when Dr Allnutt prepared his report. He stated that this was the kind of thing that the Plaintiff is vulnerable to, and that he was vulnerable to in 2018 and was possibly the type of thing that happened when he gave evidence. [1113] Dr Chalk stated that meeting with lawyers, particularly when that’s not something you have done before, is undoubtedly a very stressful event and that in and of itself produces a significant degree of anxiety. [1114]

Submissions

1113. T 447.28-.46.

1114. T 447.48-448.03.

Plaintiff’s Submissions

506. The Plaintiff accepted that it was a medical issue as to whether the Plaintiff sustained injury. It was contended that given the Plaintiff’s presentation to medical examiners immediately after the event and intermittently thereafter and the content of his presentation was consistent with the Plaintiff having more than just suffered emotional hurt or distress. Attention was drawn to the following:-

1. Dr Allnutt provided evidence as to why the Plaintiff satisfies the diagnosis of post-traumatic stress disorder. Even if such disorder is not found to be the case, then the alternative diagnosis of an adjustment disorder would appear to be appropriate.

2. By 2020, the conclave believed that the Plaintiff had recovered from the effects of any psychological disorder. This however, is based upon an acceptance of the fact that the Plaintiff no longer has symptoms and is no longer any different to how he was before the accident. The Plaintiff has given contrary evidence.

3. Dr Allnutt in his evidence on 8 June 2020 indicated the plaintiff’s breakdown in the witness box may well be an example of the “relapse” that he thought might arise in his report dated 30 September 2019. Dr Allnutt stated that by reason of the Plaintiff’s experience, he remains vulnerable to triggers as identified in the psychology treatment notes from 2018.

4. The evidence of Dr Allnutt also indicates the Plaintiff is at risk of relapse. The Doctor accepted the Plaintiff’s break down in the witness box was consistent with his vulnerability to triggers or reminders of his ordeal.

5. The Defendants attempt to suggest that a period of detention of 2-3 days was the cause of the Plaintiff’s psychiatric condition is an attempt to suggest that if the initial period of detention was reasonable but not the subsequent period, the Plaintiff suffered no psychological injury. Dr Allnutt’s evidence in this regard was that the subsequent detention was in any event a material contributor to the Plaintiff’s injury. In those circumstances and in the absence of the Defendant untangling the contributors to the Plaintiff’s injury, the Plaintiff is entitled to an award of damages to reflect his entire injury. ^[1115]

6. When approaching the awarding of damages for non-economic loss, one must be careful not to overcompensate the Plaintiff if the symptoms and disability arising from his assessed psychiatric condition is the same source of damages for embarrassment and hurt.

   1115. Bendix Mintex Pty Ltd and Ors v Barnes (1997) 42 NSWLR 307; Purkess v Crittenden (1965) 114 164

Defendant’s Submissions

507. The Defendant argued that there was insufficient evidence for any finding of a PTSD. The most Dr Allnutt seems to have suggested is that the Plaintiff suffers from an adjustment disorder which appears to have been in remission since at least a date in 2019. This is somewhat aggravated by the litigation itself which of course will soon come to a close. It submitted that there is a suggestion by Dr Allnutt as to some prospect of a future recurrence but no detail as to what form that may take, what may trigger it and its duration has been advanced.

508. The Defendant relied upon the opinion of Dr Chalk that, at most, the Plaintiff has suffered as a result of this is a degree of upset.

509. It was submitted that the more difficult issue, from the Plaintiff’s perspective, is proving any causal connection between any tortious act on the part of the defendant and any injury.

510. Reference in this regard was made to the joint report, [1116] where Dr Allnutt has identified multiple causes for the Plaintiff’s injury. It submitted that the Defendant is not responsible for:-

1. the making of any allegations against him;

2. apprehension that he may be disembarked into New Caledonia in circumstances where there is no complaint about that intention; and

3. fear and anxiety associated with the prospect of returning to Australia and being the subject of investigation by New South Wales Police.

   1116. Exhibit A1, Tab 52 at 934.

511. The Defendant submitted that the police investigation was extant for many months and remained a continuing source of stress throughout.

512. The Defendant submitted that when asked if the Plaintiff would have developed the adjustment disorder he was diagnosed in circumstances where the confinement was a few days only, given the multiplicity of other factors, Dr Allnutt said yes. It submitted that the consequence of that is that if the confinement was lawful for a couple of days, which it submitted was not the focus of the Plaintiff’s case, and take into account all of the other stressors operating on the mind of the Plaintiff for which Royal is not responsible (the allegations and the investigation and the risk of disembarkation), it was submitted that the threshold set out in Watts v Rake,[1117] is made good. It submitted that the court should find that even if confinement was unreasonable from 17 November 2016 onwards, a finding which the Defendant strongly resisted, then the additional confinement was not a cause of any recognised psychiatric damage.

     1117. (1960) 108 CLR 158.

Consideration

513. Mr Champion’s observations of the Plaintiff following return from the cruise can be given little weight bearing in mind his evidence of limited contact with the Plaintiff following return from the cruise.

514. Much of the Plaintiff’s contention of suffering a recognised psychiatric injury rested on his own complaints and symptoms. There is evidence that used drugs and alcohol prior to his confinement and to the extent he continued to use after his return, I am not satisfied that this or any uptake of smoking was due to the confinement.

515. The Plaintiff’s evidence that the predominant cause of his anxiety was the triggers and panic attacks he was getting similar to that experience he undergone, including males with dark complexion, security, authorities, ships and banging doors which would all trigger anxiety and panic. That evidence, however, was not supported by the clinical notes of his treating doctors. Dr Haplin on 21 November 2016 in fact recorded that the Plaintiff was vague of detail and the matters recorded were relevant to the risk of infection. There are no records from Ms Woods from 1 and 8 December 2016 and no follow up with the practice until 2018. Dr Sleeman and Dr Parmar in their consultations make no record of any history relating to the Plaintiff’s confinement. On 30 January 2017, Dr Sleeman recorded that the Plaintiff felt depressed because of an incident with his girlfriend. On 29 March 2017 reported many stressors to Dr Carroll but none again related to the circumstances of his confinement. Whilst I am conscious of the caution to be applied in acceptance of medical records the pattern that I have referred to across the period immediately following the Plaintiff’s confinement provides little support to the Plaintiff’s claims. Whilst the Plaintiff did see Ms Woods again in 2018 this appears related to his decision to initiate Court proceedings with the notes on 23 August recording panic attack “all around the case”, noting that he needs a medico legal report. In the follow up appointment on 13 September 2018, it was recorded that he would be referred on however there is no evidence as to whether this occurred. Thereafter there were the consultations with Dr Alfaro and Dr Callan noting a subsequent improvement in his symptoms. Overall, the Plaintiff has had little by way of treatment and I am not satisfied that what treatment he has had was causally related to his confinement. Dr Allnutt does not appear to have made any detailed reference to the paucity of the medical history in coming to his diagnosis. To the extent that he reported a history of various symptoms provided by the Plaintiff, few of these are replicated in the clinical records referred and none record a history related to his confinement. Dr Allnutt’s opinion is dependent on the Plaintiff’s history which I am unable to accept as reliable.

516. Overall, I prefer the evidence of Dr Chalk who found that what occurred was undoubtedly upsetting and may have given rise to some anxiety but did not constitute a psychological illness. Specifically, I accept that Dr Chalk looked for clinical symptomatology that was present during that time and he couldn't get a description from him of any significant vegetative symptoms which would indicate the Plaintiff developed a depressive illness or anxiety that led to panic. To the extent that the Plaintiff had anxiety arising from confinement I am satisfied that it was of a relatively short duration following his return and I am not satisfied his condition amounted to either an adjustment disorder or PTSD.

517. Beyond non-economic damages the Plaintiff also claimed $3000 in respect of three weeks that he had off work before he resumed. There was no claim advanced in respect of any time off subsequent to that. He stated that he could not take any further time off as he had no further leave available. The Plaintiff’s calculation of net earnings was based on the contents of the Plaintiff’s Notice of Assessment for the year ended 10 June 2016. [1118]

     1118. Exhibit F.

518. Quite apart from its contentions as to injury the Defendant asserted that there was no evidence of specific diminution in the past. [1119] The Plaintiff’s evidence was that he took leave and did not substantiate that there was a loss of earning capacity. Nor is there any medical evidence that he was incapacitated.

     1119. T 554.38-.44.

519. The Plaintiff claimed $4,322 for past out of pocket expenses. No receipts were provided. [1120]

     1120. T 562.43-.50.

520. This claim again has not been substantiated and I would make no allowance.

521. The Plaintiff claimed a buffer for the future of $50,000. In written submissions it was argued that it compensates the Plaintiff for the possibility that a relapse occurs that incapacitates him for periods of time particularly since he is a young man.

522. Based on my findings I would make no allowance in this respect.

ORDERS

523. For these reasons I would order:-

1. Verdict and judgment for the Plaintiff in the sum of $97,344

2. Subject to any application to my Associate by 1 February 2021, to relist the matter for any further or other order as to costs the Defendant is to pay the Plaintiff’s costs. 

***NOTE: There were a number of typographical errors in the decision handed down to the parties on 22 December 2020. A document of errata was produced by the Court and agreed on by the parties. These agreed changes have been reflected in this judgment.***

Endnotes

Decision last updated: 02 March 2021