The NSW Court of Appeal recently delivered an interesting judgment in the matter of Scenic Tours Pty Ltd v Moore [2023] NSWCA 74.
Background
The Plaintiff in this matter, Mr David Moore, was the lead Plaintiff in a class action against Scenic Tours (“Scenic”) by thousands of disgruntled cruise ship passengers from multiple separate cruises.
For extra context, we suggest reading our 2020 article discussing Moore v Scenic Tours Pty Ltd [2020] HCA 17:
The Plaintiff booked a European river cruise tour through Scenic Tours (‘Scenic’). The cruise was promoted as a luxurious, once in a lifetime cruise. Inclement weather meant that most of it was undertaken by bus and not boat, which did not suit the Plaintiff who had spinal issues.
The Plaintiff alleged breaches of the Australian Consumer Laws including that the tour was unfit for purpose (Section 61(1) of the ACL).
Scenic argued that the poor weather and flooding were totally out of their control, and in any event should have been anticipated by passengers.
In the earlier decision Moore v Scenic Tours Pty Ltd [2020] HCA 17 the High Court overturned a successful appeal by Scenic, and held that damages for disappointment and distress were available to the Plaintiff and weren’t subject to the restrictions of the Civil Liability Act 2002.
The High Court sent the class action back to the original Supreme Court judge, Justice Garling, to determine the remaining claims - including as assessment of damages for all group members. Damages were assessed at approximately $8.4 million for the reduction in value of the cruises, and other resultant damages were awarded.
Damages for disappointment and distress over the experience were also awarded between $6,000 to $12,000 in respect of a sample of group members, as well as compensation for airfares to Europe.
The decision
The Court of Appeal found against Scenic’s submission that Justice Garling erred in rejecting its defence to allegations that it had breached consumer guarantees, and therefore had wrongly awarded damages for the reduction in value of the cruises, as well as for distress and disappointment.
Specifically, the Court of Appeal rejected Scenic’s reliance on Section 61(3), which provides that the Section does not apply if the circumstances show that the consumer did not rely on, or it was unreasonable for the consumer to rely on, the skill or judgment of the supplier (as had also earlier been determined in relation to Mr Moore’s claim).
However, the majority of the Court of Appeal upheld the challenge to the award of damages for airfares to Europe, in part because it had not been established that none of the group members would have gone on the cruise if they knew the consumer guarantees would have been breached.
Implications of the decision
As with the earlier High Court decision, we can only expect to see ever increasing claims by disgruntled passengers, which will now often include a component for distress and disappointment.
If you have a query relating to any of the information in this piece, or you would like to speak with a member of Holman Webb's Insurance team in relation to a matter of your own, please don't hesitate to reach out today.