CONSUMER LAW – cross-appeal – purpose guarantee in s 61(1) and result guarantee in s 61(2) of the Australian Consumer Law (ACL) – alleged error in finding that purpose and result of acquiring services was to have a “safe, relaxing and pleasurable cruise” – potential overlap of purpose guarantee and result guarantee – grounds of cross-appeal not made out
CONSUMER LAW – cross-appeal – alleged error in finding breaches of purpose and result guarantees – compliance with guarantees is an objective test – inferences from facts and events before and after supply of services are permissible – grounds of cross-appeal not made out
CONSUMER LAW – cross-appeal – s 267(4) of the ACL – causation of loss from breaches of purpose and result guarantees – alleged error in refraining from analysing each specific shortcoming in the services provided – grounds of cross-appeal not made out
CONSUMER LAW – scope of guarantee – due care and skill guarantee in s 60 of the ACL – alleged error in finding of failure to supply services with due care and skill – grounds of cross-appeal not made out
NEGLIGENCE – cross-appeal – scope of duty of care –alleged error in finding that owner and operators of passenger vessel owe a duty of care to passengers to care for their health and safety including in relation to the risk of harm caused by infectious disease – grounds of cross-appeal not made out
NEGLIGENCE – cross-appeal – breach of duty of care – alleged error in finding that the respondents had breached their duty of care owed to the applicant – consideration of precautions a reasonable person in respondents’ position would have taken – grounds of cross-appeal not made out
DAMAGES – where personal injuries suffered were COVID-19 infection and associated adjustment disorder – consideration of availability and assessment of distress and disappointment damages – where appellant received a full refund of cost of cruise holiday – whether refund properly a credit against distress and disappointment damages – grounds of appeal not made out
DAMAGES – personal injury damages for non-economic loss – alleged error in assessment of severity of non-economic loss assessed against a most extreme case – grounds of appeal not made out
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Karpik v Carnival plc (The Ruby Princess) [2025] FCAFC 96
Case
[2025] FCAFC 96
Decision Date
CaseChat Overview and Summary
The case of Karpik v Carnival plc (The Ruby Princess) involved Mrs Karpik, a passenger on the Ruby Princess cruise ship, who brought claims against Carnival plc and Princess Cruises (collectively referred to as "the respondents") for breach of consumer guarantees and negligence. The primary judge found in favour of Mrs Karpik and ordered the respondents to pay damages for breach of consumer guarantees and negligence, including a refund of the cruise cost and additional damages for distress and disappointment. Both parties appealed: Mrs Karpik appealing the assessment of damages for personal injury and distress and disappointment, and the respondents cross-appealing the findings of liability for breach of consumer guarantees and negligence.
The court was required to address the respondents' cross-appeal first, as it concerned the findings of liability, before considering Mrs Karpik's appeal. The cross-appeal raised multiple grounds challenging the primary judge's determinations regarding the purpose and result guarantees under the Australian Consumer Law (ACL), the due care and skill guarantee, the scope of the duty of care in negligence, and the assessment of damages. The court found that the primary judge correctly interpreted the guarantees under the ACL, correctly applied the objective test for compliance with the guarantees, and properly assessed the causation of loss from the breaches. The court also upheld the primary judge's finding that the respondents breached their duty of care owed to Mrs Karpik and that the assessment of damages was correct.
The court dismissed the respondents' cross-appeal, concluding that the primary judge's findings of liability were supported by the evidence and the law. The court also dismissed Mrs Karpik's appeal, finding that the assessment of damages was appropriate, and that the refund received by Mrs Karpik properly offset the distress and disappointment damages. The court ordered that the appeal be dismissed, the cross-appeal be dismissed, and that costs be awarded to the respondents for the appeal and to Mrs Karpik for the cross-appeal, subject to taxation if not agreed. The court granted liberty to apply for further orders regarding the costs within a specified timeframe.
This decision underscores the importance of interpreting consumer guarantees under the ACL correctly and the need for an objective assessment of compliance with these guarantees. It also reinforces the scope of the duty of care owed by cruise operators to their passengers, including in relation to risks of infectious disease. The judgment provides clarity on the assessment of damages for distress and disappointment in consumer guarantee cases and the proper consideration of refunds in calculating such damages.
Orders
Orders of the court
1. The appeal is dismissed.
2. The cross-appeal is dismissed.
3. The appellant must pay the respondents’ costs of the appeal, to be taxed by a Registrar of the Court if not agreed.
4. The respondents must pay the appellant’s costs of the cross-appeal, to be taxed by a Registrar of the Court if not agreed.
5. There be liberty to apply on or before 26 August 2025 in relation to paragraphs 3 and 4 above.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On 24 November 2023 the Court made Orders including that:Judgment1.Judgment be entered against the respondents in the amount of $4,423.48 plus prejudgment interest.Costs2.The respondents pay the applicant’s costs of the proceeding, up to 5 October 2022, subject to prior interlocutory costs orders, which are not disturbed, with the question of the applicant’s costs from 5 October 2022 to be reserved.3.The applicant’s costs be fixed in a lump sum.4.Within 14 days of the Court determining the question of the applicant’s costs from 5 October 2022, the applicant file and serve a Costs Summary of no more than 20 pages in compliance with [4.10]-[4.11] of the Costs Practice Note (GPN COSTS).5.Within 28 days of the Court determining the question of the applicant’s costs from 5 October 2022, the respondents file and serve a Costs Response of no more than 15 pages in compliance with [4.13]-[4.14] of the Costs Practice Note (GPN COSTS).6.In the event that the parties cannot agree on the amount of the lump sum, within 42 days of the Court determining the question of the applicant’s costs from 5 October 2022, the parties inform the Associate to Stewart J and file and serve submissions of no longer than 10 pages addressing the law as to costs on relevant issues.7.Pursuant to r 1.37 of the Federal Court Rules 2011 (Cth) a Registrar is to determine the amount of the lump sum in such manner as they see fit, including, if considered appropriate, on the papers. On 7 February 2024 the Court made further Orders including that:1.Pursuant to s 33Z of the Federal Court of Australia Act 1976 (Cth) (Act), the common questions and answers from the initial trial of the applicant’s claim are set out in Annexure A (Common Questions).2Pursuant to s 33ZB(a) of the Act, the Common Questions are binding on all group members as defined in the further amended statement of claim filed on 24 March 2021 other than on any person who has opted out of the proceeding under s 33J.3.The costs of the initial trial from 5 October 2022 up to and including 5 February 2024 be reserved. Both Mrs Karpik, on the one hand, and Carnival and Princess, on the other, appeal from the Orders made on 24 November 2023 and 7 February 2024: by amended notice of appeal filed on 6 March 2024 Mrs Karpik appeals from part of Order 1 made on 24 November 2023. She no longer presses her appeal from Order 3 made on 7 February 2024; and by further amended notice of cross-appeal filed on 27 August 2024 Carnival and Princess appeal from Orders 1 to 7 made on 24 November 2023 and Orders 1 and 2 made on 7 February 2024. As Mrs Karpik’s appeal is a challenge to the findings by the primary judge in relation to personal injury and distress and disappointment damages and the respondents’ cross-appeal challenges the primary judge’s findings on liability, we will address the cross-appeal before turning to the appeal.CARNIVAL AND PRINCESS’ CROSS-APPEAL In their cross-appeal the respondents raise 16 grounds of cross-appeal which, as noted above, challenge the primary judge’s findings in relation to liability.Legislative scheme