Moore v Scenic Tours

08 OCT 2020

 

Facts

Mr Moore and his wife booked an “all inclusive”, “once in a lifetime” luxury river cruise on the Scenic Jewell, through Scenic Tours Pty Ltd (“Scenic”). Mr Moore and his wife booked the cruise as they wanted to see different parts of Europe without the need to pack and unpack more than once. The cruise was specifically appealing to Mr Moore as he had had spinal surgery which made it difficult for him to sit down, especially in confined spaces, for extended periods of time.

The tour was scheduled to commence in Paris on 31 May 2013.  The river cruise along the Rhine, Main and Danube Rivers was scheduled to depart from Amsterdam on 3 June 2013 and conclude two weeks later in Budapest. 

As a result of heavy rainfall, the Rhine and Main rivers flooded requiring Mr Moore and his wife, along with other passengers, to spend a number of hours travelling by bus and only cruised for three days; on two separate vessels. This, “once in a lifetime” opportunity cruise was definitely not what Mr Moore, his wife and other passengers expected. 

The proceedings

Supreme Court of NSW

Mr Moore and his wife were the lead Plaintiffs in proceedings representing approximately 1,500 passengers who had also booked cruises with Scenic that were initially scheduled to depart between 19 May 2013 and 12 June 2013 however, were unable to due to the flooding of the Rhine and Main rivers. 

Mr Moore’s claim for damages included damages for disappointment and distress for breach of a contract to provide a pleasant and relaxed holiday.

One of the issues in Mr Moore’s case was whether damages for disappointment and distress actually constitute personal injury damages. Mr Moore argued that his claim for damages for disappointment and distress for breach of contract actually fell outside of the Civil Liability Act (NSW), which is the law that governs and restricts the recovery of damages in personal injury claims, because the damages which he was claiming did not relate to personal injury. 

The primary judge found in favour of Mr Moore in relation to this issue and awarded Mr Moore $10,990.00 in compensation for loss of value and $2,000.00 for disappointment and distress. 

This decision was appealed by Scenic. 

The NSW Court of Appeal

The NSW Court of Appeal found that Mr Moore was in fact, not entitled to damages for disappointment and distress because the Civil Liability Act 2002 (NSW) precludes damages for non-economic loss (pain and suffering) in personal injury cases unless they amount to at least 15% of a most extreme case. 

The NSW Court of Appeal also determined that Mr Moore was not entitled to any damages as a result of his disappointment and distress because his non-economic loss was not 15% of the most extreme case. 

Mr Moore appealed to the High Court of Australia.

High Court of Australia

The High Court decided that the loss consisting of disappointment and distress for breach of contract to provide a pleasurable and relaxing experience, were not consequential upon physical or psychiatric injury and that therefore the limitations imposed by the Civil Liability Act did not apply.

The Court also noted the following:

“Disappointment at a breach of a promise to provide recreation, relaxation and peace of mind is not an ‘impairment’ of the mind or a ‘deterioration’ or ‘injurious lessening or weakening’ of the mind.”

The High Court therefore allowed the appeal.

If you would like you receive advice in relation to your potential personal injury claim, please do not hesitate to contact our Personal Injuries Department on (02) 4626 5077. 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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