Harold and Aileen Childs v Scenic Tours Pty Ltd

[2014] NSWCATCD 128

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Harold and Aileen Childs v Scenic Tours Pty Ltd [2014] NSWCATCD 128
Hearing dates:	13 December 2013
Decision date:	30 January 2014
Before:	K Ross, General Member
Decision:	The respondent is, on or before 28 February 2014, to pay to the applicants the sum of $11,826.00
Catchwords:	Compensation for tour
Legislation Cited:	Consumer Claims Act 1998 (NSW) Civil Liability Act 2002 (NSW) Australian Consumer Law (Cwealth)(ACL)
Cases Cited:	Lloyd v Scenic Tours Pty Ltd [2010] NSWCTTT 591
Category:	Principal judgment
Parties:	Harold and Aileen Childs (Applicants) Scenic Tours Pty Ltd (Respondent)
File Number(s):	GEN 13-48537

reasons for decision

THE PROCEEDINGS

1. The proceedings were commenced by application filed with the Tribunal on 13 September 2013. The application was listed on 29 October 2013. Both parties attended (the applicants by telephone), and conciliation was attempted, but was unsuccessful. Directions were made for the exchange of evidence and the matter adjourned for hearing. Both parties filed and served their evidence, and the matter proceeded to hearing on 13 December 2013. At the conclusion of the hearing the Tribunal reserved its decision.

THE APPLICATION

1. The applicants seek an order that the respondent pay to them the sum of $14,826.00 as compensation for the failure by the respondent to provide river travel arrangements to the applicants in accordance with the itinerary provided, and for stress and disappointment. The respondent opposes the orders sought.

JURISDICTION

1. The applicants are consumers, and the claim is a consumer claim, as defined by the Consumer Claims Act 1993. The contract was made in NSW. The claim has been brought within time. The trip involved inland river travel, such that the Admiralty Act does not apply. The Tribunal accordingly has jurisdiction to hear and determine the claim.

THE APPLICANTS' EVIDENCE

1. The applicants' evidence comprised sworn evidence by each of the applicants, copies of correspondence between the applicants and the respondent, information provided to the applicants by the respondent (including copies of the itinerary, on board communications and invoices), copies of media articles and a bundle of photographs. The applicants gave evidence that they purchased a European River Tour from the respondent. The tour commenced in Paris on 31 May 2013. The applicants were to board the ship "the Jewel", but upon arrival in Paris were advised that they would instead board "the Ruby", as the Jewel could not get to Amsterdam. They boarded the Ruby on June 3 2013, and found a letter dated 1 June 2013, advising them of the ship swap. The letter stated that the suite on the substitute ship was not identical to the booked suite, and an appropriate refund would be offered. The letter said that "whilst the river situation is a changing set of circumstances we are making arrangements to have you onboard the Scenic Jewel at a convenient location during your cruise. If this is possible you will complete your cruise onboard the Scenic Jewel as originally planned."

1. The applicants gave evidence that whilst they were in due course transferred to the Jewel, the promised cruising was greatly affected. They were unable to cruise down the Rhine Gorge, but instead, were forced to turn the boat back and dock in Koblenz. Because of the height of the rivers, the closure of locks and flooding on the land, not only was the cruising affected, but free choices could not be undertaken. Roads were clogged with traffic, so rather than manageable coach trips, onshore activities were prolonged and trips uncomfortable. Rather than being on one boat for 14 days, they were forced to relocate, occupying three different vessels. 14 days of cruising became 3.5 days. From Day 9 until day 13, the Jewel was moored in Bamburg, and could not cruise at all. The applicants say that by then all of the other cruises had been cancelled, so that there were no passengers on the other boats moored at Bamburg. On day 13, the boat was able to sail, but the applicants say that they were the only tourist boat on the river. River levels were still high and the river was full of debris, and the conditions quite dangerous. Because barges had right of way, progress was slow, reducing the available time to enjoy on-shore locations, where flooded roads meant long delays and uncomfortable trips. By the time they were transferred to the Pearl, the river was again closed. The time in Vienna was compromised and when cruising did get underway, the condition of the river was dangerous, flowing very fast and full of debris. The boat was denied permission to proceed to Budapest. The tour ended in Prague.

1. The applicants argued that they had not been provided with what they had contracted for. They say that the respondent knew or ought to have known that it could not provide the contracted services and ought to have cancelled the tour, as other companies had done. They base this conclusion on the following:

(a)   the fact that the letter confirming the first ship swap was written on 1 June 2013, before the cruise commenced,

(b)   media articles dated 2 and 3 June 2013 showing the extent of the flooding and confirming the river closures, and cancellation of river cruises by other companies.

1. The applicants estimated that they had received only 30% of what they had bargained for. Whilst accepting that they were "fed and watered", the essential elements of the trip had not been provided.

1. In addition the applicants said that the compensation which they had been offered for the difference in cabin was not appropriate. The respondents had offered the difference between the cost of the cabin booked and the cabin supplied, but the applicants argued that as they did not receive the cabin booked, they should have been charged for the cheapest cabin on the ship.

1. The applicants also complained that as premium customers, the things offered to them had been less useful than offers made to other travelers.

RESPONDENT'S EVIDENCE

1. The respondent's evidence comprised evidence on affirmation by its representative, a copy of the relevant terms and conditions, a copy of the cruising itinerary, notifications from the company's managing director, a document setting out the variations, according to the respondent, and complimentary letters from 2 of the guests who undertook the tour.

1. The respondent acknowledged that the tour had been affected by flooding, the closure of locks and high river levels. The respondent, however, denied knowing beforehand of the extent of the flooding, and argued that they could not have foreseen the effect the flooding would have on the tour. The respondent conceded that had they known the extent of flooding which developed, they may well have cancelled the tour. They had acted reasonably, based upon the information available to them at the time. They had offered some compensation to the applicants, which offer had been refused.

1. The respondent relied upon its terms and conditions and argued that it was entitled to change the itinerary to deal with the changing conditions. These terms and conditions are clear, and were developed because tours can be affected by high and low water levels. The package included air fares, food, drink and accommodation, tips, gratuities and touring, all of which were provided. When scheduled activities could not be provided, reasonable alternatives were offered. The circumstances were outside the respondent's control, and the effect on the tour was not reasonably foreseeable.

DISCUSSION AND FINDINGS

1. In this matter the Tribunal is satisfied that the applicants did not receive what they bargained for. The essential aspects of the tour included the fact that it was a luxury river cruise, on a single ship. Whilst it is true that the respondent provided the airfares, accommodation and meals, and some of the cruising and touring in accordance with the itinerary, the tour was not the tour which the applicants booked. Whilst the respondent's terms and conditions entitle it to make substitutions and changes to the itinerary, there will come a point where, if these changes are extensive, the tour ceases to be a luxury river cruise, and becomes something different. In these circumstances, the original agreement is frustrated.

1. The respondents say that they could not reasonably have foreseen the extent to which the tour would be affected. However, the Tribunal is satisfied that if they did not know, they ought to have known. The media articles provided by the applicants make it clear that other tour companies had cancelled their tours. Certainly, by Day 9, with many of the rivers and surrounding areas completely flooded, it ought to have been apparent that cruising the river would not be possible for some days. The Tribunal also accepts the applicants' evidence of the effect of the flooding on the onshore activities. A reasonable tour operator ought to have cancelled the tour at that point in time.

1. In the advice provided to the applicants during the tour, the respondent did not seek to rely upon its terms and conditions, but rather promised that changes to the itinerary, cabin type and tour would be compensated. In both the letter dated 1 June 2013, and the letter dated 10 June 2013, the respondent stated that compensation would be offered. In the letter dated 10 June 2013 the respondent said "with any extended docking where there is an impact on the itinerary we recognise your concerns about missed attractions or changes to the planned itinerary. At the conclusion of the cruise we will be making a refund to you, based on the impact to the overall cruise."

1. The Tribunal accordingly finds that the respondent should compensate the applicants for the failure to provide the cruise in accordance with the itinerary, including the inability to cruise, the altered cabin arrangements, and missed on shore activities. In coming to this decision, the Tribunal has taken into account the decision of Senior Member Meadows in Lloyd v Scenic Tours Pty Ltd [2010] NSWCTTT 591. The disruption described in that matter was not as serious as in the subject matter.

1. In the Lloyd matter, the Tribunal made an award which included an award for inconvenience. However, in the subject matter the Tribunal is not satisfied that the applicants have demonstrated an entitlement to compensation for stress and inconvenience. The Tribunal accepts that such matters are caught by the Civil Liability Act 2002 (NSW).which provides that no personal injuries damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case: s 16(1). This means no damages can be awarded where the injury is below 15% of a most extreme case. I am not satisfied, having heard the applicants' oral evidence and having reviewed the documents relied on, that the applicants have reached the required threshold of 15% of a most extreme case. Accordingly the claim for compensation for non-economic loss for stress and inconvenience is dismissed.

1. In respect of the balance of the issues the respondent offered compensation of $500.00 per person, and a credit of $1,000.00 per person against future travel, together with a refund of $300.00 per person to compensate for the difference in allocated cabin. The Tribunal is not satisfied that this is adequate compensation in all the circumstances.

1. The applicants seek compensation of $14,826.00. The respondent has stated that the full cost of the river cruise component was $9,590.00 per person, a total of $19,180.00. In the circumstances where the Tribunal is satisfied that the very nature of the trip has been altered, the applicants' claim is not unreasonable. The Tribunal accordingly makes the order sought.

ORDERS

1. The respondent is, on or before 28 February 2014, to pay to the applicants the sum of $11,826.00.

Katherine Ross

General Member

Civil & Administrative Tribunal of New South Wales

30 January 2014

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 11 September 2014