Karpik v Carnival plc (The Ruby Princess) (Initial Trial) - [2023] FCA 1280

FEDERAL COURT OF AUSTRALIA
Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280

File number: NSD 806 of 2020

Judgment of: STEWART J

Date of judgment: 25 October 2023

Catchwords:
REPRESENTATIVE PROCEEDINGS – where lead applicant claims that she and her husband were infected with coronavirus on board the cruise ship Ruby Princess – where claims made pursuant to the Australian Consumer Law (ACL) and in negligence – trial of lead applicant’s claims – common questions

HIGH COURT AND FEDERAL COURT – federal jurisdiction – application of ss 5H, 5I, 5R, 16 and 32(1) of the Civil Liability Act 2002 (NSW) (CLA) and s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to consumer guarantee claims under the ACL – whether picked up and applied as surrogate federal law by ACL s 275 – if picked up whether applicable on the facts of the case

CONSUMER LAW – claims for failure to comply with the care guarantee in ACL s 60 and the purpose and result guarantees in ACL ss 61(1) and 61(2) – identification of the relevant services – terms on which the services were to be provided – particular purpose and result wished to be achieved – meaning of “particular” purpose – whether particular purpose made known – where particular purpose was to have a safe, relaxing and pleasurable cruise holiday – whether services reasonably fit for purpose – whether the services were of such a nature and quality, state or condition that they were reasonably likely to achieve desired result – where applicant did not have a safe, relaxing and pleasurable cruise holiday

NEGLIGENCE – whether the respondents (being the owner and charterer of the vessel) owed the applicant a duty of care – where applicant a passenger on a cruise ship – whether duty is novel or falls within recognised category – whether scope of duty extends to the harm allegedly suffered – nature of relationship between passengers and cruise ship operators – reliance of passengers on cruise ship operators for their safety – respondents’ peculiar knowledge of risk of coronavirus outbreak on their cruise ship – whether respondents owed applicant a duty of care as a close family member in respect of mental harm caused by passengers suffering and near death experience

SHIPPING AND NAVIGATION – whether owner and operators of passenger vessel owe passengers a duty of care to take reasonable precautions to protect and safeguard them from infectious disease – scope of duty – whether duty breached – negligence

NEGLIGENCE – breach of duty – identification of relevant risk of harm – whether reasonable person in the position of the respondents would have taken the precautions identified by the applicant – consideration of factors in ss 5B and 5C of the CLA – whether respondents should have cancelled the cruise – relevance of industry guidelines, lack of governmental action restraining operation of cruise industry and extent of respondents’ knowledge at time of departure of cruise – where no evidence adduced of the burden of taking precautions – whether respondents should have warned the applicant about the risk of coronavirus – whether risk was “obvious” within meaning of CLA s 5H – whether respondents’ screening of passengers and crew prior to embarkation was reasonably appropriate in the circumstances – whether respondents should have introduced physical distancing

CONSUMER LAW – misleading and deceptive conduct under ACL s 18(1) – whether conduct misleading or deceptive or likely to mislead or deceive – identification of relevant conduct and what representations were conveyed – whether representations were future representations – where representations concerned future conduct (or present and future conduct) relative to the time when the representations were made – where representations gave rise to a reasonable expectation that the respondents would disclose if they were no longer able to provide the services as promised – continuing representations

NEGLIGENCE – causation – application of CLA s 5D – factual causation – whether failure to appropriately screen passengers and crew and failure to implement physical distancing were causative of the applicant’s loss in the event that the respondents were not in breach by failing to cancel the cruise and failing to warn – whether respondents’ negligence caused harm or only increased the risk of harm

NEGLIGENCE – contributory negligence – whether the applicant failed to take reasonable care for her own safety by going on the cruise, failing to practice physical distancing and failing to wear a face mask

DAMAGES – where non-economic loss, past and future medical expenses and distress and disappointment damages claimed – where personal injuries allegedly suffered were COVID-19 infection, Long COVID and psychiatric illness – whether severity of non-economic loss is at least 15% of a most extreme case – availability and assessment of distress and disappointment damages – where applicant received a full refund of cost of cruise – out of pocket expenses

EVIDENCE – expert evidence – whether opinion as to Long COVID infection based on the witness’s specialised knowledge

Legislation:
Competition and Consumer Act 2010 (Cth) ss 137B, 137C, Sch 2 (Australian Consumer Law) ss 4, 18, 60, 61(1), 61(2), 236, 267, 275

Evidence Act 1995 (Cth) ss 76, 79

Judiciary Act 1903 (Cth) ss 79, 80

Trade Practices Act 1974 (Cth) (repealed) ss 51A(2), 74(1), 74(2A), 74D

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 (Cth) ss 4, 5

Civil Liability Act 2002 (NSW) ss 3, 5, 5A(1), 5B, 5C, 5D, 5F, 5H, 5I, 5N, 5O, 5R, 11A, 16, 17, 17A(1), 27, 30(5), 32

Interpretation Act 1987 (NSW) ss 12(1)(b), 31

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1)

Civil Liability (Non-economic Loss) Amendment Order 2023 (NSW)

Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 done at Athens on 13 December 1974, as amended by the protocol amending it done at London on 1 November 2002 art 3(1)

Cases cited:
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ACCC v Geowash Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2019] FCA 72; 368 ALR 441
ACCC v Jayco Corp Pty Ltd [2020] FCA 1672
ACCC v Mazda Australia Pty Ltd [2021] FCA 1493; 158 ACSR 31
ACCC v Mazda Australia Pty Ltd [2023] FCAFC 45
Addenbrooke Pty Ltd v Duncan (No 2) [2017] FCAFC 76; 348 ALR 1
Advance Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd [1995] FCA 236; ATPR ¶46-144
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Amaca Pty Ltd v Cleary [2022] NSWCA 151
Ashrafi Persian Trading Co v Ashrafinia [2001] NSWCA 243; [2002] Aust Torts Reports ¶81-636
ASP Ship Management Pty Ltd v Administrative Appeals Tribunal [2006] FCAFC 23; 149 FCR 261
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Attorney-General (Commonwealth) v Huynh [2023] HCA 13; 408 ALR 684
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H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4; 399 ALR 184
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Henderson v Stevenson (1875) LR 2 HL Sc 470
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 42; 39 FCR 546
Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31
Henville v Walker [2001] HCA 52; 206 CLR 459
Hollier v Sutcliffe [2010] NSWSC 279
Hood v Anchor Line (Henderson Bros) [1918] AC 837
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Kermarec v Compagnie Generale Transatlantique (1959) 358 US 625
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Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 1059

Date of last submissions: 4 July 2023

Date of hearing: 12-14, 17-21 and 24-28 October 2022; 1 and 8-10 November 2022; and 7 December 2022

Counsel for the Applicant: I R Pike SC, A P L Naylor and R J May

Solicitor for the Applicant: Shine Lawyers

Counsel for the Respondents: D McLure SC, G O’Mahoney, H Pintos-Lopez, T R March, A L Reid and H Cooper

Solicitor for the Respondents: Clyde & Co

ORDERS

NSD 806 of 2020

BETWEEN:
SUSAN KARPIK

Applicant

AND:
CARNIVAL PLC (ARBN 107 998 443 / ABN 23107998443)

First Respondent

PRINCESS CRUISE LINES LTD (A COMPANY REGISTERED IN BERMUDA)

Second Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

25 OCTOBER 2023

THE COURT ORDERS THAT:
1.The matter be listed for the making of final orders and further case management at 9.30am on 10 November 2023, or at such other time and date as the parties may arrange with the Associate to Stewart J.
2.The parties email agreed or competing orders to give effect to the reasons for judgment published today, including with regard to common questions or the process for the making of orders on common questions, to the Associate to Stewart J by noon on 9 November 2023.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
STEWART J:

A. INTRODUCTION

[1]

B. THE FACTS

[13]

B.1 The applicant

[13]

B.2 The respondents

[16]

B.3 The experts

[26]

B.4 Coronavirus

[30]

B.4.1 Introduction

[30]

B.4.2 Characteristics and transmission

[32]

B.4.3 Symptoms

[44]

B.4.4 The respondents’ knowledge

[49]

B.4.5 Prevalence of coronavirus prior to 8 March 2020

[51]

B.5 Coronavirus risk

[56]

B.5.1 Previous coronavirus outbreaks on cruise ships

[56]

(1) The Diamond Princess

[57]

(2) The Grand Princess

[64]

(3) Seven Nile River cruise ships

[69]

(4) The Ruby Princess voyage RU2006

[70]

B.5.2 Guidelines, protocols and procedures

[81]

(1) The Centers for Disease Control and Prevention

[82]

(2) The World Health Organization’s Interim Guidance

[85]

(3) NSW’s Enhanced COVID-19 Procedures for the Cruise Line Industry

[86]

(4) Federal Government regulation and guidance

[88]

(5) The respondents’ protocols, instructions and decisions

[94]

B.5.3 Coronavirus risk on cruise ships

[109]

B.6 The Ruby Princess voyage RU2007

[125]

B.6.1 Communications with passengers

[125]

(1) Cruise Personalizer

[125]

(2) Emergency Notification

[126]

(3) Dear Henry email

[127]

B.6.2 Prior to check-in

[129]

B.6.3 Pre-embarkation screening

[130]

B.6.4 Medical supplies

[137]

B.6.5 Cleaning, hygiene and sanitation measures

[139]

B.6.6 Hand hygiene

[148]

B.6.7 Physical distancing

[154]

B.6.8 Management of persons with respiratory symptoms

[155]

B.7 Mrs Karpik’s evidence

[161]

B.7.1 Introduction

[161]

B.7.2 Background

[164]

B.7.3 Knowledge of risk

[172]

B.7.4 Cruise Personalizer

[180]

B.7.5 Emergency Notification

[183]

B.7.6 Dear Henry email

[186]

B.8 The Karpiks’ experience of the cruise and thereafter

[188]

B.8.1 Pre-embarkation

[188]

B.8.2 Post-embarkation

[191]

B.8.3 The voyage itself

[194]

B.8.4 Disembarkation and thereafter

[211]

C. WERE MR AND MRS KARPIK INFECTED WITH CORONAVIRUS ON THE RUBY PRINCESS?

[234]

C.1 When was Mr Karpik infected with coronavirus?

[235]

C.1.1 Introduction

[235]

C.1.2 The expert evidence

[238]

(1) Associate Professor Yakob’s report

[240]

(2) Professor Holmes’s reply

[247]

(3) Professor Wilder-Smith’s reply

[256]

(4) Joint Report 6

[261]

         (a) Prevalence and risk of COVID-19 in Wollongong and NSW

[265]

(b) The Karpiks’ trip to The Rocks prior to boarding

[278]

(c) The influenza test taken by Mr Karpik

[283]

C.1.3 Discussion

[284]

C.1.4 Findings

[294]

C.2 Was Mrs Karpik infected with COVID-19 at all?

[295]

C.2.1 Introduction

[295]

C.2.2 Mrs Karpik’s symptoms

[298]

(1) Evidence in chief

[298]

(2) Cross-examination

[303]

C.2.3 Mrs Karpik’s SARS-CoV-2 tests

[314]

C.2.4 Interpretation of the PCR result

[325]

(1) The expert evidence

[325]

(2) Discussion

[341]

(a) Professor Paterson’s reliance on the Wikramaratna study

[342]

         (b) Professor Paterson’s reliance on the Kucirka study

[351]

(c) The remaining evidence

[362]

C.2.5 Interpretation of the serological results

[365]

(1) The expert evidence

[368]

(2) Discussion

[382]

C.2.6 Findings

[395]

D. THE APPLICATION OF STATE LEGISLATION IN FEDERAL JURISDICTION

[398]

D.1 Introduction

[398]

D.2 Non-economic loss: s 16 of the CLA

[406]

D.3 Contributory negligence: s 5R of the CLA & s 9(1) of the LRMP Act

[420]

D.4 Obvious risks: s 5H of the CLA

[421]

D.5 Inherent risks: s 5I of the CLA

[431]

D.6 Normal fortitude: s 32(1) of the CLA

[439]

E. ACL S 61: THE PURPOSE AND RESULT CONSUMER GUARANTEES

[445]

E.1 Introduction

[445]

E.2 The relevant services, and the terms of service

[455]

E.3 The particular purpose and the result wished to be achieved

[464]

E.4 Reasonably fit for purpose

[481]

E.5 The nature, and quality, state or condition

[498]

E.6 Resolution

[499]

F. NEGLIGENCE AND ACL S 60

[511]

F.1 Introduction

[511]

F.2 Duty of care to passengers

[519]

F.3 Duty of care to close family members

[560]

F.4 Breach of duty

[580]

F.4.1 Introduction

[580]

F.4.2 Cancel the cruise

[595]

F.4.3 Warn passengers of coronavirus risk

[611]

F.4.4 Screening of passengers and crew

[626]

F.4.5 Enforce physical distancing

[650]

F.4.6 Monitor & implement relevant guidelines and protocols

[666]

(1) Quarantine and isolation as at 8 March 2020

[666]

(2) Further updated guidelines

[682]

F.4.7 Maintain adequate medical supplies

[689]

F.4.8 Summary

[702]

G. MISLEADING AND DECEPTIVE CONDUCT

[703]

G.1 Introduction

[703]

G.2 The pleaded conduct and what it conveyed

[710]

G.3 Future and continuing representations

[722]

G.4 Misleading or deceptive or likely to mislead or deceive

[735]

G.4.1 Safe to Board Representation

[735]

G.4.2 Reasonable Care Representation

[739]

G.4.3 Best Practices Representation

[743]

G.4.4 Pleasurable Cruise Representation

[754]

H. CAUSATION AND LOSS

[766]

H.1 ACL s 61 consumer guarantees

[766]

H.2 Negligence and ACL s 60

[773]

H.2.1 Factual causation

[776]

(1) Failure to warn

[779]

(2) Failure to implement reasonable precautions

[788]

(a) Effectiveness of screening for symptoms

[795]

(b) Effectiveness of physical distancing

[797]

(c) The balance of probabilities and the Fairchild point

[812]

H.2.2 Scope of liability

[825]

H.2.3 Resolution

[837]

H.3 Causation for breaches of ACL s 18

[838]

I. CONTRIBUTORY NEGLIGENCE

[848]

I.1 The parties’ cases

[848]

I.2 Consideration

[855]

J. DAMAGES

[863]

J.1 Introduction

[863]

J.2 Mrs Karpik’s medical condition prior to the voyage

[875]

J.2.1 Depression

[876]

J.2.2 Anxiety

[884]

J.2.3 Restless legs syndrome

[887]

J.3 COVID-19 infection

[891]

J.4 Adjustment disorder

[894]

J.4.1 Introduction

[894]

J.4.2 Exacerbation of a pre-existing psychiatric injury, or a new injury?

[903]

J.4.3 Effects of adjustment disorder

[919]

(1) March to June 2020

[919]

(2) June 2020 to present

[923]

(3) Summary

[938]

J.5 Long COVID

[939]

J.5.1 Introduction

[939]

J.5.2 Joint report

[943]

J.5.3 Dr Herrera’s specialised knowledge

[951]

J.5.4 Did Mrs Karpik have Long COVID?

[962]

(1) Dr Herrera’s evidence

[962]

(2) Dr Chen’s evidence

[971]

(3) Consideration

[984]

J.6 Conclusion on personal injury damages

[1000]

J.7 Distress and disappointment

[1010]

J.7.1 Introduction

[1010]

J.7.2 Consideration

[1019]

J.7.3 Conclusion

[1028]

J.8 Out of pocket expenses

[1030]

J.8.1 Mrs Karpik’s claim

[1030]

J.8.2 The respondents’ position

[1033]

J.8.3 Consideration

[1035]

J.9 Conclusion on damages

[1043]

K. COMMON QUESTIONS

[1044]

L. SUMMARY AND CONCLUSION

[1047]

A. INTRODUCTION

On 8 March 2020, shortly before midnight, the passenger liner Ruby Princess cast off from the Ocean Passenger Terminal at Circular Quay in Sydney. It made its way through the heads of Port Jackson and towards New Zealand. It had on board about 2,671 passengers and 1,146 crew members for a 13-day cruise to a number of ports in New Zealand and back to Sydney. At that time, Australia was bracing itself for the novel coronavirus pandemic which had already had a devastating impact in other parts of the world, disrupting daily life and bringing illness and death. What lay ahead for Australia was unknown, and feared.
Amongst the passengers were Susan and Henry Karpik from Figtree, a tranquil suburb of Wollongong in New South Wales. Mr Karpik fell ill during the voyage to the disease caused by the virus, although whether he contracted the disease on board or before boarding is in dispute. He later nearly died – he was intubated, ventilated and placed into an induced coma, and spent nearly two months in hospital. Mrs Karpik says that she also contracted the disease – that being in dispute, although her symptoms were mercifully relatively minor. Mrs Karpik endured witnessing the suffering of her husband, without being able to be by his bedside for a long period because she was in isolation herself after the voyage. She says that the impact on her mental health has been significant. Many other passengers fell ill and some later died. The cruise itinerary was abandoned on 15 March 2020 with the ship returning to Sydney three days early.
Arising out of those broadly sketched events, Mrs Karpik, as lead applicant, commenced a representative proceeding against the owner and operators of the vessel in which she seeks damages for personal injuries and distress and disappointment of more than $300,000. The group members on whose behalf the proceeding is brought include passenger group members, being passengers on the voyage who are not deceased, executor group members, being executors of passengers who died from having contracted coronavirus on the voyage, and close family group members, being close family members of passengers on the voyage who died or became severely ill from contracting coronavirus on the voyage. The matter proceeded to trial on only Mrs Karpik’s claim on the basis that a number of common issues of fact and law would, in that process, also be decided in respect of all group members.
Mrs Karpik’s causes of action, as ultimately advanced, noting that certain pleaded parts of the case were not pressed in closing submissions, are the following.
First, she relies on s 61 of the Australian Consumer Law (ACL, being Sch 2 of the Competition and Consumer Act 2010 (Cth) (CCA)) by which, she says, the respondents guaranteed that the services that they provided to Mrs Karpik and other passengers, being the services necessary for the cruise, would be reasonably fit for the intended purpose of a safe, relaxing and pleasurable holiday from which they would come back feeling refreshed and reinvigorated. She says that the respondents also guaranteed that the services would be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result, namely a safe, relaxing and pleasurable holiday from which she and the other passengers would come back feeling refreshed and reinvigorated.
Mrs Karpik says that the services supplied by the respondents failed to comply with those guarantees in a number of respects and were nowhere near reasonably fit for the intended purpose, or as might reasonably be expected to achieve the desired result. She says that the purpose was not achieved. Mrs Karpik says that far from having a safe, relaxing and pleasurable holiday from which she would come back feeling refreshed and reinvigorated:
(1)Mr Karpik contracted COVID-19 early on in the voyage;
(2)Mrs Karpik spent a considerable period of time caring for her husband on the voyage, particularly during the latter part of the cruise when his condition significantly worsened;
(3)by 15 March 2020, there was an outbreak of respiratory illness on board “with everyone febrile”;
(4)ultimately, many hundreds of passengers and crew contracted COVID-19 and a significant number of passengers died;
(5)she was, in addition to her husband, one of the passengers who contracted COVID-19;
(6)Mr Karpik nearly died from COVID-19 so, as well as dealing with her own illness, Mrs Karpik had to endure witnessing the suffering of her husband, without being able to be by his bedside for a long period because she was in isolation herself after the voyage.
Mrs Karpik says that it is not necessary, in the absence of any suggestion that the failure to achieve the purpose was unconnected with the services, to analyse the deficiencies in the services. However, to the extent that that may be necessary or helpful, on behalf of Mrs Karpik and the other group members it is contended that the services were deficient in particular respects. For reasons that are not clear to me, those alleged deficiencies are not the same as the respects in which it is alleged the respondents were negligent, to which I will come. Be that as it may, the particular deficiencies that the applicant relies on in respect of failure to comply with the statutory purpose and result guarantees are these:
(1)Pre-embarkation screening of passengers and crew for the voyage was deficient in that:
(a)There were large numbers of passengers who had travelled from jurisdictions with large numbers of confirmed cases of COVID-19 who were not refused to board and were not subject to any further screening;
(b)Passengers who were symptomatic, but had not travelled from or through one of the countries identified on the respondents’ pre-embarkation health declaration, were permitted to board and were not subject to any additional screening;
(c)The additional screening of passengers who had travelled from or through the identified countries was ineffective because COVID-19 could be transmitted by persons who are asymptomatic or pre-symptomatic;
(d)The passports of passengers and crew were not checked to ensure that the information that they provided in their health declarations was correct; and
(e)There were no temperature checks of passengers and crew, which checks would have detected the most common symptom for COVID-19.
(2)Hand hygiene: The measures adopted by the respondents to improve hygiene by installing additional hand sanitising stations and reducing the use of common utensils were ineffective to reduce the transmission of COVID-19 because fomite transmission was a minor contributor to transmission.
(3)Cleaning: For the same reason, the measures adopted to increase the level of cleaning on-board by, for example, increasing the concentration of disinfectant, were ineffective to reduce transmission.
Mrs Karpik submits that it is highly doubtful whether there could have been a safe cruise departing on 8 March 2020 with the result that the cruise should have been cancelled and the passengers refunded their fares. In that regard, she says the following:
(1)there is an increased risk of an outbreak of a respiratory virus like COVID-19 on board cruise ships;
(2)the respondents were well aware of the principal characteristics of coronavirus well before 8 March 2020;
(3)the respondents had already experienced two coronavirus outbreaks on cruise ships operated by them, the Diamond Princess and the Grand Princess, the consequences of which were catastrophic;
(4)the possibility of a further outbreak, including on the Ruby Princess, was very real;
(5)the respondents offered all passengers departing on cruises leaving on 9 March 2020 and thereafter a full refund or credit because of the risks of coronavirus, yet they made no such offer in respect of the Ruby Princess cruise in question;
(6)the circumstances of the immediately preceding cruise of the Ruby Princess were such as to create a heightened risk;
(7)when the Ruby Princess departed on the voyage in question, the respondents knew that there were insufficient supplies of crucial medical equipment on board – particularly face masks – to deal with any coronavirus outbreak; and
(8)on 13 March 2020, the respondents announced a decision to cancel all their cruises worldwide but have offered no explanation of their decision not to cancel the cruise in question which departed on 8 March 2020.
Secondly, Mrs Karpik contends that the respondents contravened the prohibition on misleading or deceptive conduct in s 18 of the ACL (there had also been reliance on s 29(1)(b) but that was not pressed in closing submissions). She relies on the respondents’ promotional and marketing material which advertised the cruise under the trademark “come back new”, an email to passengers that reiterated a commitment to safety including by implementing increased monitoring, screening and sanitation protocols to protect the health of guests, and that passengers were invited to board the ship without any accompanying health warning from the respondents. She says that that conduct gave rise to “safe to board”, “protection”, “best practices” and “pleasurable cruise” representations which were misleading or deceptive, or likely to mislead or deceive, contrary to ACL s 18.
Thirdly, in reliance on s 60 of the ACL which guarantees that certain services are rendered with due skill and care, and the tort of negligence, Mrs Karpik says that the respondents owed her a duty of care to take reasonable precautions to protect her from illness and from suffering mental harm on account of her husband’s illness. She says that the reasonable precautions that a person in the respondents’ position would have taken are the following:
(1)cancel the cruise;
(2)alternatively:
(a)warn passengers that the risk of contracting COVID-19 on the cruise was heightened as compared to the community generally and to cruise ships generally;
(b)screen passengers and crew for relevant symptoms and not permit travellers with such symptoms to board regardless of what countries they had recently travelled from or through;
(c)reduce the number of passengers on board and take steps to ensure that appropriate physical distancing was observed;
(d)isolate guests and crew members with relevant symptoms for 14 days and isolate their roommates for 14 days in separate cabins;
(e)maintain sufficient medical supplies onboard, and in particular face masks so that medical staff, symptomatic passengers and their close contacts could be provided with face masks;
(f)keep up-to-date with and implement all relevant guidelines and protocols; and
(g)consistent with those guidelines, isolate and quarantine passengers and crew who were experiencing symptoms that were consistent with COVID-19; or
(3)further alternatively, warn passengers that the risk of contracting COVID-19 on the cruise was heightened as compared to the community generally and to cruise ships generally and that the reasonable precautions set out in (2)(b)-(g) could or would not be implemented.
Broadly stated, the respondents contend that Mr Karpik did not contract COVID-19 on board and that Mrs Karpik never contracted COVID-19 at all. On the s 61 claims, they say that the fundamental reason why Mrs Karpik’s case fails is that no purpose or desired result was ever communicated to the respondents, but that their services were in any event not relevantly deficient. On the s 18 case, they say that the communications relied upon by Mrs Karpik could not be reasonably interpreted as giving rise to the specific representations pleaded. On the negligence case, they deny that they owed passengers a duty of care that extends to protecting against the risk of contracting COVID-19 and say that, even if they did, they did not breach their duty of care essentially because they complied with all relevant guidelines of various peak health bodies.
This case generated a substantial volume of evidence. For ease of future reference, I have included document identity references to the evidence in square brackets in these reasons for judgment. The references do not form part of the reasons for judgment. They are not exhaustive of the evidence that I have considered in relation to, or that is supportive of, the findings to which they relate. I mention also that there are colour graphics in these reasons for judgment that will make limited sense in black and white, so they are best read in colour.
B. THE FACTS
B.1 The applicant
Mrs Karpik was 69 years of age and had been married to Mr Karpik for nearly 50 years at the time of the cruise. She had retired from nursing but continued to work part-time as an official visitor under the Mental Health Act 2007 (NSW).
Mr Karpik, a retired police officer, was 72 years of age. He was sight-impaired to such a degree that he is described as “legally blind.”
Mr and Mrs Karpik both gave evidence. Mrs Karpik also relies on the evidence of an additional seven lay witnesses who were all fellow passengers on RU2007, her treating psychiatrist, Dr McMahon, and six expert witnesses. I will identify the expert witnesses in section B.3 below. The lay witnesses gave evidence of their experiences on the cruise. Several of them were cross-examined.
B.2 The respondents
At all material times, the first respondent, Carnival plc, was incorporated in the United Kingdom. It was also a registered foreign company in Australia and carried on business in Australia with a registered office in New South Wales. It was the time charterer of the Ruby Princess. [CRT.500.004.0001 [3]]
Carnival traded as “Princess Cruises” and “Carnival Australia.” It employed shore-based personnel in Sydney who were involved in, amongst other things, managing the arrival and departure of the Ruby Princess and issuing instructions about the conduct of the voyage. Princess Cruises, P&O Australia, Holland America Line and Seabourn are all brands of the Holland America Group (HA Group).
The second respondent, Princess Cruise Lines Ltd (PCL), was incorporated in Bermuda. It owned and operated the Ruby Princess, as well as other passenger liners which feature in what follows, including the Diamond Princess and the Grand Princess. [CRT.500.004.0001 [4]] The Ruby Princess was time chartered by PCL as owner to Carnival as charterer for the period from 23 October 2019 to 2 May 2020.
Although the respondents foreshadowed in opening that they would urge the Court to draw a distinction between Carnival and PCL as reflected in their pleaded defence, no such distinction was drawn in closing either in writing or orally. Indeed, it is part of the agreed facts that Mrs Karpik contracted with “the respondents.” [JNT.002.001.0001 [3]] Accordingly, save where it is necessary to distinguish between Carnival and PCL, they are referred to hereunder simply as the respondents.
The Ruby Princess is a large, modern, ocean-going cruise ship. It has a range of indoor and outdoor venues, including shops, restaurants, a gymnasium, a theatre, a casino, cafes and bars, an outdoor cinema, swimming pools, an outdoor sports court and a mini golf course. The vessel is 290m in length, has a gross tonnage of 113,561mt, was launched in 2008, has 17 decks and is flagged in Bermuda. [LAY_SKA.003.001.0047 p 51]
Immediately preceding the voyage at the heart of this case, the Ruby Princess undertook a similar voyage from Sydney to New Zealand and back to Sydney. The voyage is referred to as RU2006. It ended in Sydney early on 8 March 2020. On that day, the passengers from that voyage disembarked and the passengers for the next voyage, referred to as RU2007, embarked.
On 15 March 2020, the Australian Government announced that from 16 March 2020 it would deny entry to cruise ships that had left foreign ports, but that there would be an exception for international cruise ships that had already departed their last foreign port and were headed to Australia prior to that time. For that reason, RU2007 was cut short and the Ruby Princess headed directly for Sydney, arriving very early on 19 March 2020. [CAU.001.014.4906]
The respondents relied on the evidence of 16 lay witnesses who were all from amongst the hotel crew on the vessel on RU2007. The highest ranking amongst them was Charles Arnoldus Verwaal, the Hotel General Manager. Mr Verwaal explained that he was the second most senior crew member on board after the Captain and equal in rank to the Chief Engineer and the Staff Captain. His responsibilities were confined to the hotel. He was responsible for operations and maintenance of the hotel through the management of six hotel departments, each led by a head of department who reported directly to him. Those departments were Entertainment, Food and Beverage, Housekeeping/Accommodation, Customer Services, Medical and Sanitation. [LAY_RES.001.001.0342 [14-15]]
The heads of the Housekeeping/Accommodation and Customer Services departments, Artur Manuel Ferreira and Loren Kerri Budd respectively, also gave evidence. Like Mr Verwaal, they were in their roles on both RU2006 and RU2007. None of the other department heads gave evidence, and no one from the Medical or Sanitation departments gave evidence. The other witnesses were from lower levels within the Food and Beverage and Housekeeping/Accommodation departments, and one was the Crew Manager. No shore-side personnel of either respondent gave evidence.
The result is that there was no witness evidence on a number of important issues. Those include the circumstances around and reasons for the respondents’ decision, first, on or about 5 March 2020 to offer full refunds on all cruises worldwide departing from 9 March 2020 and not, say, 8 March, and, second, on or about 13 March 2020 to suspend all cruises worldwide for an initial period of 60 days. They also include the likely burden on the respondents had they taken various precautions which the applicant alleges that they should have taken, for example, cancelling the cruise, conducting temperature screening of all passengers and crew before boarding, imposing a requirement of physical distancing between people where possible on board the vessel and isolating passengers and crew who presented with acute respiratory infection (ARI) and/or influenza-like illness (ILI) (each of which is referred to as an acute respiratory disease (ARD)). The applicant asks the Court to draw certain inferences from these gaps in the respondents’ evidence. I will deal with those at the appropriate places in canvassing the various issues below.
B.3 The experts
The parties relied on the evidence of a number of expert witnesses. It is convenient to introduce them, and which party called them at the outset.
The expert witnesses relied on by the applicant, and their respective fields of expertise, are as follows:
(1)Dr Enrico Parmegiani – Dr Parmegiani is a consultant psychiatrist. He holds a Bachelor of Medicine and a Bachelor of Surgery (Honours) from the University of Sydney, as well as a Diploma of Forensic Psychiatry from the NSW Institute of Psychiatry. Dr Parmegiani became a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1999 and since that time has consistently practiced in the field of psychiatry. At the time of trial, Dr Parmegiani worked in private practice as a consultant psychiatrist and independent medical examiner and was a Psychiatrist Member of the NSW Mental Health Review Tribunal and a Personal Injury Commission Medical Assessor.
(2)Dr Joseph Herrera – Dr Herrera is a medical physician specialising in the field of physical medicine and rehabilitation. He holds a Bachelor of Science from Rutgers University and a medical degree from Rowan University School of Osteopathic Medicine. Dr Herrera is certified by the American Board of Physical Medicine and Rehabilitation and has been employed for over twenty years as a medical practitioner and academic in that field. At the time of trial, Dr Herrera was System Chair of Physical Medicine and Rehabilitation within the Department of Rehabilitation and Human Performance and the Lucy G Moses Professor at the Icahn School of Medicine at Mount Sinai, New York, and was a physician at the Mount Sinai Center for Post Covid Care.
(3)Professor Joacim Rocklöv – Professor Rocklöv is an academic epidemiologist specialising in infectious diseases and, in particular, epidemiological analysis and modelling. He holds a PhD in Occupational and Environmental Medicine, a Master of Science in Mathematical Studies and a Bachelor of Science in Mathematics from Umeå University, Sweden. Professor Rocklöv’s background is in statistics, but he has 15 years of exclusive experience in epidemiology. At the time of trial, Professor Rocklöv was a Professor of Epidemiology and Global Health at Heidelberg University, Germany, and a guest Professor at Umeå University.
(4)Professor Annelies Wilder-Smith – Professor Wilder-Smith is a medical academic with particular expertise in emerging viral diseases, travel and tropical medicine, international health and public health. She holds a PhD in Infectious Diseases and Tropical Medicine from the University of Amsterdam, a Master in International Health from Curtin University, a Doctor of Medicine from the University of Heidelberg, a Diploma in Tropical Medicine and Hygiene from the London School of Tropical Medicine and various specialist accreditations in the fields of public health, tropical medicine, travel medicine and infectious diseases. At the time of trial, Professor Wilder-Smith was a Professor of Emerging Infectious Diseases at the London School of Hygiene and Tropical Medicine and an Adjunct Professor at the Institute of Social and Preventive Medicine at the University of Bern, Switzerland.
(5)Professor Edward Holmes – Professor Holmes is an academic of over 30 years’ experience and a specialist in the fields of virology, microbiology, genomics, genomic/molecular epidemiology and evolutionary biology, in particular in phylogenetics. He holds a Doctorate in Zoology from the University of Cambridge and a Bachelor of Science in Anthropology from the University of London. Professor Holmes was the first person globally to share and make public the genome sequence of SARS-CoV-2. At the time of trial, Professor Holmes was a Professor of Biology and Medicine at the University of Sydney and an Australian Research Council Australian Laureate Fellow.
(6)Professor Alison Kesson – Professor Kesson is a virologist, microbiologist and infectious diseases physician. She holds a PhD from the Australian National University and a Bachelor of Medicine and Surgery from the University of Sydney. At the time of trial, Professor Kesson was Head of Pathology and a physician in the Department of Infectious Diseases and Microbiology at the Children’s Hospital at Westmead and a Conjoint Professor in Child and Adolescent Health in the Sydney Institute for Infectious Diseases at the University of Sydney.

The expert witnesses relied on by the respondents, and their respective fields of expertise, are as follows:
(1)Associate Professor Hassan Vally – Associate Professor Vally is an applied epidemiologist and academic specialising in communicable diseases epidemiology with particular expertise in the analysis and interpretation of health data and the computation and communication of risk. At the time of trial, Associate Professor Vally was an Associate Professor at the School of Health and Social Development at Deakin University. Associate Professor Vally co-authored a report with Professors McCaw and Bennett, and the three of them participated in some of the joint reports with the applicant’s experts. However, of the three of them, only Professor Bennett was cross-examined on the basis that the co-authored report was to be taken as authored by her and the respondents would advance no point that Associate Professor Vally and Professor McCaw had not been cross-examined. (T336:35.)
(2)Professor James McCaw – Professor McCaw is a mathematical biologist and epidemiologist with a particular focus on infectious disease dynamics. At the time of trial, he was a Professor of Mathematical Biology at the Melbourne School of Population and Global Health and the School of Mathematics and Statistics, and Unit Head (Modelling and Simulation) at the Centre for Epidemiology and Biostatistics at the University of Melbourne. As mentioned, Professor McCaw was not cross-examined on the same basis that Associate Professor Vally was not cross-examined.
(3)Dr Anthony Samuels – Dr Samuels is a consultant psychiatrist. He holds a Bachelor of Medicine and Surgery and a Master of Criminology and is a foundation member of the Royal Australian and New Zealand College of Psychiatrists Faculty of Forensic Psychiatry. Dr Samuels has more than 20 years’ professional experience in the field of psychiatry and, at the time of trial, was engaged in private practice and was an Adjunct Associate Professor at the School of Psychiatry at the University of New South Wales.
(4)Associate Professor Laith Yakob – Associate Professor Yakob is an infectious diseases epidemiologist. He holds a PhD in Mathematical Modelling from the University of Oxford, a Master of Science in Modern Epidemiology from the Imperial College, London and a Bachelor of Science in Parasitology from the University of Glasgow. Much of Associate Professor Yakob’s current research focuses on COVID-19, with an emphasis on modelling. At the time of trial, Associate Professor Yakob was an Associate Professor of Infectious Diseases in the Department of Disease Control at the London School of Hygiene and Tropical Medicine, an advisor to Pfizer and the European Centre for Disease Prevention and Control and a collaborator with the Centre for Mathematical Modelling of Infectious Diseases COVID-19 Working Group.
(5)Professor David Paterson – Professor Paterson is an infectious diseases physician and academic. Professor Paterson holds a PhD and a Bachelor of Medicine and Surgery from the University of Queensland and a Postgraduate Diploma in Clinical Epidemiology and Biostatistics, and is Australia’s most cited infectious diseases physician. Professor Paterson is a Fellow of the Royal Australian College of Physicians (Infectious Diseases) and a Fellow of the Royal College of Pathologists (Clinical Microbiology). At the time of trial, Professor Paterson was a Professor of Medicine and Director of the clinical research network Advancing Clinical Evidence in Infectious Diseases at the National University of Singapore.
(6)Professor Catherine Bennett – Professor Bennett is an academic epidemiologist specialising in infectious disease epidemiology, public health and community transmission. She holds a PhD in population genetics and applied biostatistics from La Trobe University, a Master in Applied Epidemiology specialising in communicable disease epidemiology from the Australian National University and a Bachelor of Science (Genetics and Microbiology) (Honours) from La Trobe University. At the time of trial, Professor Bennett was the Chair in Epidemiology at Deakin University.
(7)Dr Peter Chen – Dr Chen is a physician and academic specialising in pulmonary and critical care. Dr Chen holds a medical degree from Baylor College of Medicine and a Bachelor of Science (Honours) from the University of Texas at Austin. Dr Chen’s research focuses upon mechanisms of lung injury and, in recent years, translational, epidemiological and treatment studies of COVID-19 and the impact of COVID-19 infection on pulmonary dysfunction. At the time of trial, Dr Chen was the Director of the Division of Pulmonary and Critical Care Medicine and a Professor in the Department of Medicine (Pulmonary and Critical Care Division) at Cedars-Sinai Medical Center, Los Angeles, and a Professor-in-Residence at the University of California, Los Angeles.
The following table summarises the joint reports that were provided by the expert witnesses as the product of their discussions in conclave and relied on by the parties in evidence. Those discussions, and the production of the joint reports, were facilitated by an independent barrister appointed by the Court and paid for by the parties.

Report Contributors Report Topic

Joint Expert Report 1 dated 16 September 2022 Professors Paterson, Wilder-Smith, Bennett, McCaw and Associate Professor Vally What were the characteristics of coronavirus as at March 8, 2020, including what was known at that time?

Joint Expert Report 2 dated 16 September 2022 Professors Wilder-Smith, Rocklöv, Bennett, McCaw and Associate Professor Vally How contagious was COVID-19 as at 8 March 2020, including what was known at that time?

Joint Expert Report 3 dated 16 September 2022 Professors Wilder-Smith, Rocklöv, Bennett, McCaw and Associate Professor Vally Was the risk of contracting COVID-19 on a cruise ship compared to the risk of contracting COVID-19 in the community generally heightened as at 8 March 2020, including what was known at that time?

Joint Expert Report 5 dated 16 September 2022 Professors Wilder-Smith, Rocklöv, Bennett and McCaw and Associate Professor Vally Having regard to what was known or knowable as at 8 March 2020, was the risk of contracting COVID-19 on RU2007 heightened compared to the risk of contracting COVID-19 on another cruise ship at that time?

Joint Expert Report 6 dated 16 September 2022 Professors Wilder-Smith, Holmes, Rocklöv and Paterson and Associate Professor Yakob The probability that Mr Karpik was infected prior to boarding RU2007

Joint Expert Report 7 dated 14 September 2022 Professors Paterson and Kesson What is the likelihood that Mrs Karpik contracted COVID-19 before 20 April 2020?

Joint Expert Report 8 dated 15 September 2022 Professors Wilder-Smith and Paterson and Associate Professor Yakob If it is likely that Mrs Karpik was infected with COVID-19 before 20 April 2020, what is the likelihood that she was infected on RU2007 or from another passenger on RU2007, including Mr Karpik?

Joint Expert Report 9 dated 16 September 2022 Professors Paterson and Wilder-Smith Whether social distancing was known to reduce the spread of COVID-19 by 8 March 2020? Whether social distancing would have made a difference to the risk of Mrs Karpik contracting COVID-19 during the voyage?

Medico-Legal (Psychiatry) Experts Joint Conference Report dated 10 September 2022 Dr Parmegiani and Dr Samuels Eight topics related to Mrs Karpik’s psychiatric health.

Medico-Legal (Long COVID) Experts Joint Conference Report dated 13 September 2022 Dr Herrera and Dr Chen Eight topics related to “Long COVID” and whether and the extent to which Mrs Karpik suffers from the condition.
B.4 Coronavirus

B.4.1 Introduction

In late 2019, a novel coronavirus emerged at Wuhan in China which came to be named severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2 (hereafter, also the virus or coronavirus), and the disease caused by it was named coronavirus disease 2019, or COVID-19 – recognising that, depending on the context, it may not be relevant to distinguish between the virus and the disease. The virus had not previously been seen in humans indicating negligible, if any, immunity in the population. The characteristics of the virus and COVID-19 have largely been agreed between the relevant experts. What follows is drawn from their joint reports and the parties’ statement of agreed facts.
SARS-CoV-2 is a beta-coronavirus and is related to (ie, shares about 86% genetic similarity with) the SARS coronavirus that caused a major SARS outbreak in 2003, SARS-CoV. Although, SARS-CoV-2 has undergone further viral evolution with further variants, as at 8 March 2020, only the ancestral strain (ie, the Wuhan strain) was circulating. The first published reports of human-to-human transmission of SARS-CoV-2 were made available in late January 2020. [JNT.001.001.0001 [1]-[3]]
B.4.2 Characteristics and transmission
Transmission of coronavirus can occur via respiratory droplets from an infected person, aerosol transmission and contact with objects that have been contaminated with respiratory droplets from an infected person. The latter is referred to as fomite transmission. [CRT.500.004.0001 [11]]
A respiratory droplet is a small aqueous droplet >10µm in diameter (although there is a continuous distribution between small particles <5µm to large particles >15µm) consisting of saliva and other matter derived from respiratory tract surfaces. Respiratory droplets are produced naturally as a result of breathing, speaking, sneezing, coughing or vomiting, so they are always present in a person’s breath, but certain functions such as speaking and coughing increase their number. Coughing, sneezing and singing also result in a more forceful expulsion of such droplets. [CRT.500.004.0001 [13]; JNT.001.001.0001 [22]] When a person is infected, these droplets carry virus and transmit infection. The largest droplets settle out of the air rapidly, within seconds to minutes. Infection via contact with respiratory droplets is referred to as respiratory droplet transmission.
The smallest of the aqueous droplets – particles that are <5µm in diameter – rapidly dry and become aerosol particles. [EXP_SKA.003.003.0226 [42]; EXP_SKA.001.001.0001 [23]] Aerosols can remain in the air for longer periods of time (up to hours, depending on ventilation) and travel further than respiratory droplets. Aerosol transmission is distinct from respiratory droplet transmission and refers to the presence of viruses within small droplet nuclei.
Transmission occurs in all three modes of transmission via inhalation of large respiratory droplets and smaller aerosol droplets or particles, settling of large respiratory droplets and/or smaller aerosol droplets or particles on exposed mucous membranes in the mouth, nose or eye by direct splashes and sprays, or touching mucous membranes with hands that have been soiled either directly via virus-containing respiratory fluids or indirectly by touching surfaces with virus on them. Point of entry is mainly through the nose. [CRT.500.004.0001 [14]]
Once infectious droplets and particles are exhaled by an infected person, they move outward from the person (the source). The highest concentration of droplets is in close proximity to the source. [CRT.500.004.0001 [16]]
Risk of transmission is greatest within 1.5 to 2 metres as this is where the concentration of these droplets and particles is greatest. The risk of infection decreases with increasing distance from the source of infection and increasing time after exhalation. Enclosed spaces with inadequate ventilation within which the concentration of exhaled respiratory fluids can build up in the air space increases the risk of infection. Another factor is prolonged exposure to these conditions, typically more than 10-15 minutes. [CRT.500.004.0001 [17]; JNT.001.001.0001 [22 (g)]]
The relevant experts agree that the characteristics of respiratory droplets and principles of transmission of respiratory droplets constitute standard knowledge in the field of epidemiology and outbreak investigations that preceded both the COVID-19 and the SARS outbreaks. [JNT.001.001.0001 [23]]
As at 8 March 2020, the median incubation period for the virus was considered to be 5-6 days, ranging from 0-14 days. A paper was published in January 2020 in respect of an outbreak in Germany that month which reported a median incubation time of 4 days, with a range of 2.3 to 4.4. [JNT.001.001.0001 [7]-[8]]
Coronavirus can be transmitted in the ways identified above by both symptomatic and asymptomatic infected persons. [CRT.500.004.0001 [20]] Asymptomatic infection occurs when a person is infected but develops no symptoms. [JNT.001.001.0001 [9]]
The relevant experts agree that the existence of asymptomatic transmission was known from three peer-reviewed reports published before 8 March 2020, but the extent of asymptomatic transmission was not known. As at 8 March 2020, asymptomatic transmission was not thought to be a major driver of transmission. After 8 March 2020, one of the reports was corrected to be a pre-symptomatic case. [JNT.001.001.0001 [24]] A pre-print study (ie, not yet peer reviewed) was published on 20 February 2020 that documented the proportion of asymptomatic infections to be 18%, although after 8 March 2020 it became known that a substantial proportion (20-45%) of people infected with the ancestral Wuhan strain do not develop symptoms. [JNT.001.001.0001 [11]-[12]]
A risk assessment internal to the respondents dated 25 February 2020 shows that the respondents were aware of asymptomatic transmission at that stage, although the “extent” of such transmission was not known. [PCL.001.006.7128] It was also put to Mrs Karpik in cross-examination as a positive proposition that as at 8 March 2020 she knew that the virus could be transmitted by someone who had no symptoms, and that it was said in the news that there was a theory that on the Diamond Princess transmission had occurred from asymptomatic people (T142:25-30). Although Mrs Karpik said that she was not sure that she had that knowledge at that time, the fact of knowledge of asymptomatic transmission having been put as a positive assertion grounds the inference that the respondents, who had reason to know far more about the virus and its transmission than an ordinary passenger such as Mrs Karpik, had that knowledge at that time. (See [122] below on the questions of assertions in cross-examination amounting to admissions against interest.)
The experts also agree that by February 2020, it was known that the serial interval of COVID-19 is shorter than its median incubation period. That indicates that a certain proportion of secondary transmission occurs prior to illness onset. Pre-symptomatic transmission plays an important role in transmission dynamics of COVID-19. [JNT.001.001.0001 [25]]
B.4.3 Symptoms
Coronavirus can cause the following symptoms: fatigue, cough, shortness of breath and fever. In cases of severe and critical illness, the virus can cause respiratory failure and an inability to properly breathe without a respirator, septic shock, multiple organ dysfunction/failure and death. [CRT.500.004.0001 [22]-[23]]
On 18 February 2020, China’s Centre for Disease Control published their data of the first 72,314 cases including 44,672 confirmed cases. About 80% of the confirmed cases were reported to be mild disease or less severe forms of pneumonia, 13.8% severe and 4.7% critically ill. The study also noted that nearly half (49%) of critically ill patients died. Initial estimate of the overall case fatality rate was around 2.2%. Severe disease is defined as those with dyspnoea, hypoxia, or >50% percent lung involvement on imaging. Critical disease is defined as respiratory failure, shock, or multi-organ dysfunction. [JNT.001.001.0001 [15]]
Acute respiratory distress syndrome (ARDS) is the major complication in patients with severe disease and can manifest shortly after the onset of dyspnoea. Other complications of severe illness include thromboembolic events, acute cardiac injury, kidney injury, and inflammatory complications and various others. [JNT.001.001.0001 [16]]
Some people who have been infected with the virus can experience a condition known as Long COVID which is where common COVID-19 symptoms such as fatigue, shortness of breath or cognitive dysfunction last either for at least four weeks after infection or at least three months after infection and are present for at least two months. Long COVID symptoms may improve or relapse over time. [CRT.500.004.0001 [28]-[29]]
There is currently no biomarker or diagnostic test for Long COVID. The diagnosis of Long COVID is based upon an evaluation of a person’s symptoms. Often, this evaluation occurs in conjunction with a physical examination and imaging or functional testing. Careful consideration of pre-existing condition is important in evaluating someone for Long COVID to ensure that the symptoms are not from previously known diseases. Clinicians need to also consider new diagnoses that are not considered Long COVID but are contributing to the patient’s symptoms. [CRT.500.004.0001 [30]]
B.4.4 The respondents’ knowledge
It is common ground that by 5 March 2020, the respondents knew or ought reasonably to have known the following:
(1)coronavirus can be transmitted via objects and bodily fluids contaminated with the virus;
(2)coronavirus is capable of human-to-human transmission;
(3)human-to-human transmission of coronavirus can occur via droplets and fomites from an infected person;
(4)an infected person may be asymptomatic;
(5)coronavirus can cause the following symptoms: lethargy, coughing, shortness of breath, fever, and inability to properly breathe without a respirator, and death;
(6)the symptoms of coronavirus may be similar to, or the same as, symptoms caused by an ARI and/or ILI;
(7)the mortality rate in people infected with coronavirus increases with age;
(8)people who are elderly or who have comorbid conditions are more susceptible to becoming severely ill or dying due to coronavirus than people who are not elderly or have no comorbidities;
(9)coronavirus is contagious;
(10)there was no vaccine for coronavirus at any time before completion of the voyage. [CRT.500.004.0001 [31]]
The respondents deny as a fact, and they deny that before the voyage they knew, that the risk of contracting coronavirus on a cruise ship was higher than the risk in the community generally. I deal with this dispute in section B.5.3 below.
B.4.5 Prevalence of coronavirus prior to 8 March 2020
On 30 January 2020, the World Health Organization (WHO) declared the outbreak of coronavirus a Public Health Emergency of International Concern. The respondents knew this. [CRT.500.004.0001 [32]]
By 8 March 2020, based on the “WHO Coronavirus Disease 2019 (COVID-19) Situation Report – 47”:
(1)there had been over 100,000 confirmed cases of coronavirus reported globally;
(2)over 90 countries had confirmed cases of coronavirus;
(3)countries that had over 100 confirmed cases included: the United Kingdom, the United States of America, France, Germany, Italy and The Netherlands; and
(4)there had been local transmission of coronavirus reported in more than 40 countries including each of the countries listed above as well as Canada and Spain. [CRT.500.004.0001 [33]]
By 8 March 2020, based on the Australian Government, Department of Health, “Communicable Diseases Intelligence, COVID-19, Australia: Epidemiological Report 6” (published on 11 March 2020), in Australia:
(1)there were over 70 confirmed cases of coronavirus, including two deaths;
(2)16 cases had direct or indirect links to mainland China;
(3)10 cases were among the Diamond Princess cruise ship passengers repatriated from Japan;
(4)16 cases had direct or indirect links to the Islamic Republic of Iran;
(5)14 cases had a recent travel history to other countries; and
(6)there were approximately 40 reported cases of coronavirus in NSW. [CRT.500.004.0001 [34]-[35]]

On 11 March 2020, several days into the voyage of the Ruby Princess, the WHO declared COVID-19 a pandemic. In a statement that day, the Director-General of the WHO stated that “we are deeply concerned both by the alarming levels of spread and severity, and by the alarming levels of inaction.” Back on 23 February 2020, Dr Grant Tarling, the respondents’ Senior Vice President and Chief Medical Officer, had stated that he expected that COVID-19 would soon become a pandemic. [SKA.005.001.0264; PCL.002.025.1105] The evidence shows that Dr Tarling was involved since January 2020 with the United States’ Centers for Disease Control and Prevention (CDC) and industry groups (including the Cruise Line International Association, or CLIA) in developing response protocols and communications concerning the developing coronavirus situation. [PCL.001.006.4630 p 2]
The evidence also shows that there were comprehensive situation reports about developments in relation to coronavirus that were sent to the respondents’ executives on an almost daily basis through, relevantly, January to March 2020. These reports provided updates with respect to various vessels in the respondents’ fleet, such as number of infections on board, port of call restrictions, itinerary changes and the risk of certain passengers joining; as well as more general updates about the global situation with respect to the spread of coronavirus, such as case and fatality numbers. [SBM.010.002.0001 fn 164]
B.5 Coronavirus risk
B.5.1 Previous coronavirus outbreaks on cruise ships
Prior to the voyage in question, there had been cases of coronavirus on board the Diamond Princess and the Grand Princess, both of which are cruise ships owned by PCL. [CRT.500.004.0001 [36]] The outbreaks on those vessels are relevant because of the respondents’ knowledge of the material circumstances of those outbreaks. There had also been an outbreak of ARI and ILI on board the cruise of the Ruby Princess immediately preceding Mrs Karpik’s cruise, namely voyage RU2006. That is relevant because of what it might say about the risk of coronavirus being on the vessel and being carried over to voyage RU2007.
(1) The Diamond Princess
On 20 January 2020, the Diamond Princess departed Yokohama Port in Japan on a 16-day round trip itinerary, including travelling to Hong Kong on 25 January 2020. There were approximately 3,700 passengers and crew on board. [CRT.500.004.0001 [37]-[38]]
On or about 1 February 2020, one passenger from Hong Kong who travelled on the Diamond Princess cruise for five days from 20 January and disembarked in Hong Kong on 25 January 2020, tested positive for coronavirus. By about 4 February 2020, 10 people on board the Diamond Princess had tested positive for coronavirus, including two Australian guests, three Japanese guests, three guests from Hong Kong, and one guest from the United States, in addition to one Filipino crew member. The number of infected passengers and crew steadily increased and by 20 February 2020, over 600 people who had been on the Diamond Princess cruise had tested positive for coronavirus. [CRT.500.004.0001 [39]-[40], [43]-[45]]
On or about 1 March 2020, a passenger who had contracted coronavirus on the Diamond Princess cruise became the first Australian to die due to coronavirus. [CRT.500.004.0001 [46]]
By 5 March 2020, the respondents knew of the matters set out in the preceding paragraphs concerning the Diamond Princess. [CRT.500.004.0001 [49]]
By 7 March 2020, over 600 passengers who had been on the Diamond Princess cruise had tested positive for coronavirus, over 300 of those confirmed cases showed no symptoms of coronavirus at the time of specimen collection for testing, and more than five passengers had died due to coronavirus. [CRT.500.004.0001 [47]]
By 8 March 2020, when the Ruby Princess departed Sydney, seven passengers from the Diamond Princess cruise had died due to coronavirus, nearly 700 (over 18%) of the approximately 3,700 passengers who had been on the Diamond Princess cruise had tested positive for coronavirus, and over 40% of the people on the Diamond Princess cruise who tested positive for coronavirus were asymptomatic at the time of testing. [CRT.500.004.0001 [48]; PUB.005.001.0425]
The respondents knew of the matters set out in the preceding two paragraphs by the evening of 8 March before the Ruby Princess departed from Sydney. [CRT.500.004.0001 [50]]
(2) The Grand Princess
From 11 to 21 February 2020, the Grand Princess sailed on a roundtrip passenger cruise from San Francisco, California, to Mexico and Hawaii (the first trip). On 21 February 2020, the Grand Princess departed San Francisco on a second roundtrip voyage to Hawaii, carrying approximately 2,422 guests and 1,122 crew. [CRT.500.004.0001 [51]-[52]; PCL.001.002.1985]
By 4 March 2020, at least one passenger from the first trip had tested positive for coronavirus and at least one had died from coronavirus. On or about 4 or 5 March 2020, after PCL was notified of the positive test, it commenced cancelling all social activities planned for the remainder of the second voyage. [CRT.500.004.0001 [53]-[54]] By 5 March 2020, CDC had reported another positive case from the first trip and that one of the individuals was being treated in an Intensive Care Unit (ICU). [PCL.001.006.9323]
By 6 March 2020, over 20 passengers on the second trip of the Grand Princess had tested positive for coronavirus. [CRT.500.004.0001 [55]] By 7 March 2020, there were 11 positive cases from the first trip. [PCL.001.002.1985]
On 7 March 2020 at 5.00pm CT, ie, 9.00am on 8 March in Sydney, PCL reported to the press that of 45 guests and crew who were tested for the virus on the second trip, 21 people had tested positive, being two guests and 19 crew. The 45 people selected for testing was on the basis that they had presented with ILI on the voyage as they were regarded as the highest risk cohort and were required by the CDC to be tested. It was also reported that it was believed that the index case on the vessel, ie, the person who took the virus onto the vessel, was a guest on the first trip, and that the virus had spread from that person to other guests and crew. The problem for the second trip was that the crew remained on board. [PCL.001.003.6200]
The respondents knew of the matters recorded above about the Grand Princess cruises before the embarkation of passengers for voyage RU2007 in Sydney. [CRT.500.004.0001 [56]]
(3) Seven Nile River cruise ships
On 14 March 2020, the CDC reported that it was not only large cruise ships that had experienced coronavirus outbreaks. An outbreak on board a Nile River cruise with 171 passengers and crew resulted in 45 confirmed COVID-19 cases. Many of the passengers returned home before any notifications about COVID-19 were provided, potentially spreading the disease to their home communities. Evidence of COVID-19 transmission on board six similar Nile River cruise ships, each carrying approximately 100 passengers, was said to illustrate that even ships with moderate numbers of passengers and crew on board carried a substantial risk of disease transmission and outbreak. [PUB.010.003.0001]
(4) The Ruby Princess voyage RU2006
On 24 February 2020, the Ruby Princess departed Sydney on a cruise to New Zealand, returning to Sydney on 8 March 2020. There were approximately 3,000 passengers and 1,163 crew on board. The ship’s medical centre maintained an acute respiratory diseases log (ARD log) from which much of the data that follows is drawn. [CRT.500.004.0001 [57]-[58]]
During the cruise, 162 persons presented to the ship’s medical centre with ARI. Guests accounted for 150 of those people, and crew members, 12. [CRT.500.004.0001 [59]-[60]]
Of the crew members, 10 were recorded as having ARI and two as having ILI. Four crew members were tested for influenza A and B, but all of them tested negative. The remaining eight were not tested. [CRT.500.004.0001 [61]]
Of the guests, 134 were recorded as having ARI and 16 as having ILI. Only 26 guests were tested for influenza A and B, of whom seven tested positive and 19 tested negative. [CRT.500.004.0001 [62]]
When the Ruby Princess docked in Sydney on 8 March 2020 at the conclusion of the cruise, 360 passengers (8.8%) presented in response to an announcement calling for anyone with a travel history of concern or respiratory symptoms to present themselves for screening by NSW Health. Of those passengers, only nine were tested by NSW Health for the virus – three crew and six guests. All the tests were negative. [SBM.010.002.0001 [57]; CRT.500.004.0001 [64]]
It is unclear what role the ARI/ILI outbreak on voyage RU2006 had with regard to the outbreak of COVID-19 on RU2007. A number of observations can nevertheless be made.
First, the symptoms of ARI and ILI are also symptoms of COVID-19, so passengers and crew reporting with such symptoms may have had COVID-19, particularly considering that only nine people were tested for the virus and someone with COVID-19 may have no symptoms or mild symptoms such that they would not have been selected for testing. That was known by the respondents because of their Diamond Princess experience (see [62]-[63] above).
Secondly, over 1,100 of the approximately 1,200 crew on RU2006 stayed on board for RU2007. There was thus a considerable risk that if anyone amongst the crew on RU2006 was carrying the virus, they would take it onto RU2007. The respondents must be taken to have known of that risk because of their Grand Princess experience (see [67]-[68] above).
Thirdly, albeit that fomite transmission is not a principal means of transmission of the virus, if it was present on RU2006, there is a risk that it would cause an outbreak on RU2007. The respondents knew of that risk (see [49(1)] above).
Fourthly, while health screening was taking place on the vessel on 8 March at the end of RU2006, the respondents prepared a draft media statement in case any of the passengers or crew tested positive for the virus. From the draft statement and the email exchanges between officers of the respondents, it is apparent that the respondents planned to cancel RU2007 in the event that there was a positive case on RU2006. Moreover, a 100% refund and 100% future cruise credit would be offered to passengers in the event of a cancellation, as well as hotel accommodation in Sydney and “some incidentals” – possibly onward flights and accommodation. This was said to be “in line with what we are offering for Guests also impacted by Grand and Royal cancellations.” [PCL.001.004.4279] The reference to Royal is a reference to the Royal Princess which had its cruise departing a US port on 7 March 2020 cancelled because one crew member had transferred to it from the Grand Princess and the CDC required the crew member to be tested for coronavirus and that could not be done quickly enough.
The telling observation is that the respondents planned to immediately cancel RU2007 on one positive test being returned from RU2006, yet apparently did not consider cancelling RU2007, or even offering the passengers the possibility to cancel with a refund, even though there was a substantial ARI/ILI outbreak on RU2006. The respondents knew that a person could be infectious with very mild symptoms or even no symptoms at all and hence not be caught by the screening on RU2006, and only nine people from RU2006 were being tested for coronavirus. In other words, the respondents knew or ought to have known that there was a substantial risk of COVID-19 on RU2006 and that the testing of only nine people from the voyage was not likely to identify all positive cases, with the result that there was a heightened risk of the virus being on RU2007 compared with cruise ships generally.
B.5.2 Guidelines, protocols and procedures
Since the start of the coronavirus pandemic, governments and government-related institutions around the world have introduced protocols and guidelines aimed at reducing the spread of the virus. Some of those protocols and guidelines are directed at passenger liners, and others are relevant to the management of passenger liners.
(1) The Centers for Disease Control and Prevention
The CDC is a United States federal government agency. The CDC’s guidance is relevant not only because it is a leading public health agency internationally, but also because the respondents are headquartered in the USA and, as would be expected, monitored statements and advice issued by the CDC that was relevant to a cruise ship operator.
On 18 February 2020, the CDC revised its “Coronavirus Disease 2019 Guidance for Ships” (CDC COVID Ship Guidance). The respondents were aware of that information before the Ruby Princess departed from Sydney on 8 March 2020. The revised guidance included statements to the following effect: [CAU.001.107.0003]
(1)Early detection, prevention, and control of COVID-19 on ships is important to protect the health of travellers on ships and to avoid transmission of the virus by disembarking passengers and crew members who are suspected of having COVID-19.
(2)Commercial shipping, including cruise ships and other passenger vessels, involves the movement of large numbers of people in closed and semi-closed settings. This may facilitate the transmission of respiratory viruses from person-to-person through exposure to respiratory droplets or contact with contaminated surfaces.
(3)To reduce the spread of respiratory infections including COVID-19, it is recommended that ships encourage crew members and passengers to self-isolate and inform the on-board medical centre if they develop symptoms.
(4)Identifying and isolating passengers and crew with possible symptoms of COVID-19 as soon as possible is needed to minimise transmission of this virus.
(5)Because the signs and symptoms of COVID-19 are non-specific, people on board who have fever or ARI should be tested for influenza.
(6)Deny boarding of a passenger or crew member who is suspected to have COVID-19 infection based on signs and symptoms plus travel history in China or other known exposure at the time of embarkation.
(7)In addition to routine cleaning and disinfection strategies, ships may consider more frequent cleaning of commonly touched surfaces such as handrails, countertops, and doorknobs. The primary mode of COVID-19 virus transmission is believed to be through respiratory droplets that are spread from an infected person through coughing or sneezing to a susceptible close contact within about 6 feet. Therefore, widespread disinfection is unlikely to be effective.
On 14 March 2020, the CDC issued a “No Sail Order” for all commercial non-cargo passenger-carrying ships within its jurisdiction with the capacity to carry 250 or more passengers and crew with an itinerary anticipating an overnight stay on board or a twenty-four hour stay on board for either passengers or crew. The “No Sail Order” records that the CDC had previously recommended that travellers, particularly those with underlying health conditions, avoid all cruise ship travel worldwide, and that the US Department of State had issued guidance that US citizens should not travel by cruise ship. [PUB.010.003.0001]
(2) The World Health Organization’s Interim Guidance
On 24 February 2020, the WHO issued an interim guidance entitled “Operational considerations for managing COVID-19 cases and outbreaks on board ships” (WHO Interim Ship Guidance).
(3) NSW’s Enhanced COVID-19 Procedures for the Cruise Line Industry
On 23 February 2020, the “Enhanced COVID-19 Procedures for the Cruise Line Industry” (Enhanced NSW Cruise Procedures) introduced by the Chief Health Officer for New South Wales was provided to the respondents who were asked to confirm that each cruise ship docking in New South Wales was able to meet those procedures. The enhanced procedures document included statements to the following effect: [CAU.001.040.5818; CAU.001.040.6314]
(1)The recent outbreak of COVID-19 on the Diamond Princess cruise ship in Japan demonstrates the serious impact this disease can have in cruise ship environments.
(2)Each cruise ship vessel should ensure that they have sufficient supplies of materials to manage a respiratory outbreak on board, including: face masks, alcohol hand rub for ill passengers and crew, and personal protective equipment (PPE) for clinic staff.
(3)A respiratory outbreak is defined as >1% of people on board affected. Smaller numbers of cases with mild respiratory illness are expected and do not necessarily represent an outbreak.
(4)Passengers who may be infectious should be appropriately isolated.
By 7 March 2020, the respondents had received a revised version of the procedures put in place by the New South Wales Chief Health Officer for cruise ships dated 3 March 2020. The revised procedures included statements to the following effect: [PCL.001.005.6517; PCL.001.005.6518]
(1)Each cruise ship should ensure that they have sufficient supplies of materials to manage a respiratory outbreak on board, including face masks and alcohol hand rub for passengers and crew with ARI.
(2)Each ship should collect and retain for 14 days after each cruise in case required a log of where passengers and crew have travelled in the 14 days prior to embarkation – in order to facilitate this, it is strongly recommended that pre-embarkation screening of crew and passengers include a history of travel in the previous 14 days.
(3)Cruise ship staff should ensure that they actively identify passengers and crew with ARI – including cough, sore throat, fever or difficulty breathing – by making regular announcements throughout the cruise, inviting them to attend the clinic for assessment.
(4)Passengers with ARI/ILI who may be infectious should be appropriately isolated, and provided with alcohol hand rub and face masks. If sharing a cabin, roommates should be provided with alcohol hand rub and face masks, and educated on how to protect themselves.
(4) Federal Government regulation and guidance
On 1 February 2020, the Australian Government announced that it would not permit foreign nationals who had been in mainland China on or after 1 February 2020 to enter Australia for 14 days from the time of leaving or transiting through mainland China, and that Australian citizens and permanent residents who had been in mainland China were required to self-isolate for 14 days from the time they had left. The announcement also stated the following: [PUB.001.012.0001]
In particular, the changing epidemiology of the coronavirus in China and the uncertainty that remains around its transmission and virulence, mean the utmost precaution is warranted.
There is no basis for alarm. It is important to remember the risk to Australians is currently very low. We need to keep it that way.
On or about 6 February 2020, the Australian Health Protection Principal Committee (AHPPC) published a statement advising that transmission of the virus occurred “through close contact with an infected individual, mostly face-to-face or household contact” and that the virus could not “jump across a room or be carried for long distances in the air.” It was said that “the current evidence suggests that sick people early in their illness are the main driver of spread.” [PUB.005.001.0010]
On 29 February 2020, the Australian Government announced travel restrictions banning non-citizens (other than permanent residents) who had been in Iran on or after 1 March 2020 from entering Australia for 14 days from the time they had left or transited through Iran, and requiring Australian citizens and permanent residents to self-isolate at home for 14 days from the day they had left Iran. [PUB.001.013.0001]
By the end of February 2020, international arrivals from other countries identified as “high risk”, namely Cambodia, Hong Kong, Indonesia, Iran, Italy, Japan, Singapore, South Korea and Thailand, were not required to isolate, but were asked to monitor their health for a period of 14 days after their arrival to Australia. [EXP_RES.002.001.1458 [23]]

On any view, damages for distress and disappointment suffered as a consequence of a failed holiday are thus incomparable to compensable damages for false imprisonment. In the circumstances, I do not see any value in having regard to false imprisonment cases in assessing damages in the present case.
Mrs Karpik submits that she should be awarded Dillon damages in the range of $50,000 to $60,000 on the basis of her distress and disappointment, distinct from the personal injuries she suffered. Those damages are said to encompass the distress felt by Mrs Karpik during the voyage when her husband became unwell and her anxiety in the immediate aftermath of the voyage at Mr Karpik’s deteriorating state of health to the point of his hospitalisation, as well as Mrs Karpik’s frustration at the respondents’ conduct of the cruise and her sense of loss for the relaxing and pleasurable holiday that she expected to enjoy.
Mrs Karpik also submits that if I do not find that her Long COVID injury is established, the damages awarded for distress and disappointment should be increased in the amount of $50,000 to reflect the struggles and difficulty that Mrs Karpik has had to endure arising from the symptoms of breathlessness on exertion, fatigue and brain fog. This is said to be on the basis that Mrs Karpik was not suffering from these symptoms before the voyage and so it should be inferred that the respondents’ contraventions of the ACL caused or contributed to these symptoms.
J.7.2 Consideration
The applicant recognises that Dillon damages are not consequential upon a physical or psychiatric injury, but says that they are for non-economic loss or “pain and suffering” (relying on the concurring judgment of Edelman J in Scenic HCA at [69]). The applicant therefore submits that it is necessary to “distinguish distress and disappointment that was a consequence of her injuries from that which was not.” She submits that that requires drawing conclusions about when Mrs Karpik commenced to suffer from each of the injuries (COVID-19 infection and adjustment disorder) and whether distress felt after this occurred was related to an injury. She submits that distress and disappointment felt by her after she commenced to suffer from her injuries will be compensable as part of an award of distress and disappointment damages if it is not pain and suffering consequential upon an injury.
As mentioned, the applicant also submits that if I find that she did not suffer from Long COVID, as I have now found, then many of the symptoms that she relies on for the Long COVID diagnosis should be taken into account as giving rise to Dillon damages. However, if those matters do not arise from Mrs Karpik’s COVID infection such as to amount to Long COVID, as I have found, then they may arise from her adjustment disorder, which is compensated separately, or from some other cause or ailment. They all manifest physically and are not compensable as Dillon damages.
The applicant is correct in the submission that distress, disappointment, anxiety, frustration, and so on, that arises from personal injury is not compensable as Dillon damages. The result of that, however, and contrary to the applicant’s submission, is that there is very little left to compensate her for as Dillon damages. That is because almost all of those feelings, or experiences of hers – referred to by Edelman J in Scenic HCA as “mental harm” (at [69]) but by the plurality as not being “impairment of a person’s … mental condition” (at [41]) – arise out of personal injury to her (COVID infection and adjustment disorder) or to her husband (COVID infection). There is in any event a question whether Dillon damages would be available in respect of a failure of the purpose or result guarantee in respect of another person, rather than the person claiming. That was not raised by the parties and need not be considered any further.
Commencing the analysis with the services that were promised, I identified the services in section E.2 above. The complaint about the respondents having failed to provide what was promised is a narrow one, relating only to precautions against COVID infection. There is otherwise no complaint about the panoply of cruising, hotel and vacation-type services that were provided. That marks the present case as very different from the Moore v Scenic cases. There, a completely different experience was provided in substitution for the promised experience. In the present case, the cruise went ahead essentially as planned. I deal with these matters in section B.8.3 above. It was cut short by a few days, with a few port visits cancelled, on account of Government decree, but any recovery in respect of that shortcoming is prevented by ACL s 267(1)(c)(i), ie, it occurred only because of an act by a person other than the supplier.
On Mrs Karpik’s evidence, she and her travel companions participated in a range of activities (trivia, bingo, art auctions), went to restaurants, cafes and bars, engaged in shopping, went to the theatre, and undertook excursions to several destinations in New Zealand. To the extent that Mrs Karpik did not participate in other activities, she explained in her first affidavit that she did not attend many of the activities because her intention was to relax and enjoy time with her travel companions.
In her evidence, Mrs Karpik made various references to her concerns about precautions to protect passengers from infection. To the extent that she had such concerns from time to time on the cruise, they did not prevent her from participating in activities or spending time with her friends as planned. Her stated concern did not make her consider using the face masks that she had brought with her, even after Mr Karpik became ill (T167:11-19, 178:21-22, 188:15-31). Also, any generalised fear or concern that Mrs Karpik may have had about getting infected with COVID on board, disconnected from any particular way in which the purpose or result guarantee was not complied with, cannot give rise to any Dillon damages. I accept that she had some level of concern or anxiety about Mr Karpik, her friend Lucy or herself getting COVID while on the cruise, but she would have had that anyway – none of it was caused by the failure to comply with the statutory guarantees. It was caused by the growing epidemic and her knowledge of its risks, including what had occurred on the Diamond Princess.
Contrary to the respondents’ submissions, I accept that Mrs Karpik suffered some distress, disappointment and frustration as a consequence of the respondents’ failure to comply with the purpose and result guarantees. This arises from the ways in which her cruise experience was detrimentally impacted by Mr Karpik becoming ill. Those include that she had to care for her husband which to some degree restricted what she could do, she lost the benefit of his company from time to time when, for example, he cut an excursion short or was isolating so could not join her in the restaurant or for other activities, and because she worried about his health. However, with regard to the latter, it will be recalled that she thought that he likely had influenza A which is not normally life threatening – she said she was “rather pleased that he had influenza A” and that she was “almost celebrating that he had been diagnosed with influenza A” (T169:3, 30, 36, 171:5). The extent of her worry at that stage should therefore not be overstated.
I also accept that Mrs Karpik suffered some Dillon damages in the period from disembarkation on 19 March 2020 until Mr Karpik was admitted to hospital on the morning of 21 March 2020, ie, for a period of approximately one day (dealt with in some detail in section B.8.4 above). I consider that thereafter, which is to say after Mr Karpik became seriously ill, the experiences of distress and the like that Mrs Karpik felt are tied up in her adjustment disorder, contributing to the cause of it and being compensable as personal injury damages.
Mrs Karpik gave evidence that she felt stigmatised by being a Ruby Princess passenger, and she claims that that is compensable as Dillon damages. She gives examples of people shunning her in one way or another on learning that she was a passenger on the Ruby Princess. [LAY_SKA.001.001.0083 [254]] This does not seem to me to be a particularly significant matter, but in any event I do not consider that it is compensable as Dillon damages – it is an injury to dignity or reputation rather than being distress and so on caused by a failure to comply with a guarantee.
J.7.3 Conclusion
Mr and Mrs Karpik each paid approximately $4,400 for their cruise. [LAY_SKA.001.001.0273 p 9; CAU.001.141.0049] They received a total refund from the respondents after the cruise. I do not consider that Mrs Karpik’s Dillon damages exceed that amount – I would assess them at about the costs of the cruise at the most. To a substantial extent she lost the benefit of the cruise in the sense that she was worried, distressed, disappointed and so on thereafter rather than feeling refreshed and reinvigorated, but when on the cruise she essentially enjoyed the experience that she had purchased and paid for. On balance, she suffered no more than $4,400 worth of Dillon damages.
The applicant does not dispute that the refund can properly be taken as credit against the Dillon damages. She does not submit, for example, that the refund should be taken as credit against any reduction in value damages claimable under ACL s 267(3), which damages she does not otherwise claim, or that the refund should be characterised as an ex gratia payment that cannot be credited against any of her damages. Rather, she submits that her Dillon damages substantially exceed the refund that she received. For the reasons I have given, I disagree. Because of the refund, she should receive nil Dillon damages.
J.8 Out of pocket expenses
J.8.1 Mrs Karpik’s claim
Mrs Karpik claims past out of pocket expenses that she incurred in connection with treatment of the three injuries that she allegedly sustained as a consequence of the respondents’ conduct, namely, COVID-19 infection, Long COVID, and an adjustment disorder. Mrs Karpik submits that the combined cost of past medical expenses in relation to all three injuries is $7,866.28. Mrs Karpik also submits that due to her Long COVID injury, an allowance in the sum of $2,500 (in addition to the total figure given for all three injuries) should be made for the possibility of future medical expenses associated with relapse of her symptoms.
Given that I am not satisfied that Mrs Karpik suffered from Long COVID, I reject her claim for out of pocket expenses related to Long COVID, including the allowance for future medical expenses. When her Long COVID expenses are excluded, the total amount of out of pocket expenses claimed by Mrs Karpik is $4,423.48. That figure is based on an itemised list of expenses comprising GP consultations, psychiatrist consultations, specialist consultations and investigations, pathology services and the cost of her Valdoxan medication. The bulk of the total amount claimed is attributable to Mrs Karpik’s adjustment disorder ($4,249.54) with only a small amount claimed in respect of her COVID-19 infection ($173.94).
Mrs Karpik submits that the amount claimed in respect of her adjustment disorder is reasonable when compared against the health benefit of the treatment obtained, citing Lumley v Sainsbury [2017] ACTSC 40 at [69] (Murrell CJ) and Sharman v Evans [1977] HCA 8; 138 CLR 563 at 573 (Gibbs and Stephen JJ). She submits that the amount claimed is relatively modest and the expenses incurred were obviously beneficial as she recovered from her adjustment disorder. Mrs Karpik does not claim for the costs of her Valdoxan medication after December 2021.
J.8.2 The respondents’ position
The respondents accept that if liability is established, the applicant should be entitled to past out of pocket expenses connected with her adjustment disorder. However, the respondents submit that the applicant’s claim in full should be limited to the period between March and June 2020 and claimable only at a reduced rate between July 2020 and February 2021. They say that expenses incurred after February 2021 should be excluded. They submit that the psychiatric expert evidence concerning the applicant’s adjustment disorder confirms that from June 2020, Mrs Karpik’s injury was much less severe and that there is no basis for treatment costs after February 2021. Consequently, the respondents say that the Court should only allow 50% of the treatment costs between July 2020 and February 2021.
The respondents oppose Mrs Karpik’s claims for out of pocket expenses associated with her COVID-19 infection and Long COVID consistent with their position that Mrs Karpik did not contract COVID-19 or suffer Long COVID.
J.8.3 Consideration
As I have said, I am satisfied on the balance of probabilities that Mrs Karpik did contract COVID-19 (see section C.2.6 above). The out of pocket expenses claimed in connection with the applicant’s COVID injury relate principally to the costs of GP consultations and pathology services. The amount claimed is very small and apparently reasonable. I accept it as properly claimable.
As I have explained why the Long COVID out of pocket expenses are not claimable, the only remaining difference between the parties concerns the proper amount claimable in respect of Mrs Karpik’s adjustment disorder from July 2020.
Once causation is established, the question for a court is whether the expenses incurred in the treatment of an injury were reasonable: State Rail Authority of New South Wales v Brown [2006] NSWCA 220 at [84] per Basten JA (Giles and Santow JJ agreeing). Reasonableness is assessed taking into account the claimed cost, and the health benefit, of the treatment. If the cost is very great and the health benefit only slight or speculative, the cost of treatment will be unreasonable, especially where inexpensive alternatives are available. Where the costs and benefits are more evenly balanced, the weighing of the factors presents a more difficult task: Sharman at 573.
It will be recalled that I have found that Mrs Karpik suffered an adjustment disorder of moderate severity. Her symptoms were acute between March and June 2020, but she subsequently began to improve. Dr Samuels and Dr Parmegiani agree that it is highly likely that Mrs Karpik suffered a recognised psychiatric illness from the period of March 2020 “at least up until the time of Dr Parmegiani’s assessment on 19 February 2021.” Between June 2020 and July 2021, Mrs Karpik continued to see her treating psychiatrist, Dr McMahon. Dr Samuels concluded that by the time of his consultation with Mrs Karpik in May 2022 her adjustment disorder had resolved, although she was still taking the anti-depressant medication, Valdoxan.
The amounts claimed by Mrs Karpik for the treatment of her adjustment disorder encompass the period from 27 March 2020 to 17 December 2021 and relate primarily to GP consultations, consultations with Dr McMahon, and the cost of Valdoxan.
I reject the respondents’ submission that Mrs Karpik’s claim for out of pocket expenses should be reduced from July 2020 merely because her symptoms were less severe from that time as she commenced her recovery. The fact that treatment for an injury is effective is not a proper basis to reduce a claim for the cost of that treatment where such treatment remains medically reasonably necessary. It is to be expected that recovery from an illness will be gradual.
Moreover, except for the costs of her Valdoxan medication which remain stable from the time of her prescription, the costs of Mrs Karpik’s treatment for her adjustment disorder decreased in tandem with the decrease in the severity of her symptoms. As one would expect, Mrs Karpik’s non-Valdoxan treatment expenses were highest in the period March to June 2020 when she consulted with Dr McMahon every week or two, totalling $1,093.75. Between July 2020 and February 2021 the costs of her non-Valdoxan treatment expenses totalled $458.14, whereas between February 2021 and December 2021 those same expenses were only $133.60. Mrs Karpik does not claim any treatment expenses, Valdoxan or otherwise, from December 2021. Given that it is difficult to pinpoint with precision when Mrs Karpik’s adjustment disorder went into remission, on the whole I am satisfied that the costs claimed by her are reasonable.
Mrs Karpik should be awarded the full $4,423.48 claimed for out of pocket expenses in respect of her COVID-19 infection and adjustment disorder injuries. She is entitled to interest on that sum.
J.9 Conclusion on damages
In the result, Mrs Karpik should be awarded the following damages:
(1)On her ACL ss 61(1) and 61(2) purpose and result guarantee claims: nil for non-economic loss, but $4,423.48 plus interest for her out of pocket expenses.
(2)On her ACL s 60 care guarantee and common law negligence claims: nil for non-economic loss, but $4,423.48 plus interest for her out of pocket expenses.
(3)On her ACL s 18 claim: nil.
K. COMMON QUESTIONS
On 20 December 2021, I made Merck Orders (see Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26, 355 ALR 20) provisionally identifying the common questions to be determined at the initial trial. Some debate arose during the trial with regard to the process for identifying which questions are truly common questions, and giving the parties the opportunity to make submissions on the proper answers.
It was then clarified by me, which the parties accepted, that I would decide all factual and legal issues necessary for the purpose of deciding Mrs Karpik’s claim, including with regard to the provisionally identified common questions annexed to the orders of 20 December 2021. However, I would not make any orders as to the resolution of any of the provisionally identified common questions until I had heard further from the parties (by way of written and/or oral submissions) on which of those questions truly are common and, in the light of the findings made, precisely how those questions should be framed and answered. (See T705-706.)
The matter will accordingly require further listing for the determination of what truly are common questions and what their answers are.
L. SUMMARY AND CONCLUSION
For ease of reference, it is worth taking stock of what I have decided, noting that I do not intend by the summary that follows to say anything different from what I have recorded as having decided above. Also, the summary mostly omits various findings that I have made in the respondents’ favour, focussing instead on the respects in which Mrs Karpik’s claims succeed.
On the critical factual issues, I have found that Mr Karpik most likely contracted COVID-19 on board the Ruby Princess (at [294]), and that Mrs Karpik contracted COVID-19 from Mr Karpik on the voyage (at [397]). Mrs Karpik suffered a recognised psychiatric illness in the form of an adjustment disorder as a consequence of Mr Karpik’s illness and hospitalisation (at [938]), but she did not suffer from Long COVID (at [984]).
With regard to the application of the CLA to Mrs Karpik’s various claims, I have held as follows:
(1)It is common ground that the various provisions of the CLA to which the parties refer (and which are identified in the following sub-paragraphs) all apply to the negligence claim (at [399]), save for CLA s 5D(3)(b) which deals with the admissibility of a statement by an injured person of what they would have done had the negligence not occurred (at [782]).
(2)CLA s 16, which limits liability for damages for non-economic loss for personal injuries unless the severity of the non-economic loss is at least 15% of a most extreme case, and which sets a maximum amount of such liability and an indexed sliding scale for its determination, applies to and limits the consumer guarantee claims (ie, ACL ss 60, 61(1) and 61(2)) (at [419]).
(3)CLA s 5R and s 9(1) of the LRMP Act, which provide for the reduction of recoverable damages to the extent of the claimant’s contributory negligence, apply to the consumer guarantee claims (at [420]).
(4)CLA s 5H, which provides that a person does not owe a duty to another person to warn of an obvious risk, is not picked up and applied to the consumer guarantee claims (at [430]).
(5)CLA s 5I, which provides that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk, is not picked up and applied to the consumer guarantee claims (at [438]).
(6)CLA s 32(1), which applies a standard of “normal fortitude” to claims for mental harm, does not apply to the consumer guarantee claims (at [443]).
(7)It is not contended by either side of the case that any of the CLA provisions apply to the ACL s 18 claim for misleading and deceptive conduct.

With regard to Mrs Karpik’s ACL ss 61(1) and 61(2) claims, the purpose and result consumer guarantees, I have found as follows:
(1)Mrs Karpik made known to the respondents that her purpose in booking the cruise, and the result that she wished the cruise to achieve, was that she would have a safe, relaxing and pleasurable cruise holiday substantially in accordance with the advertised and booked itinerary (at [469]).
(2)The effect of s 61(1) is therefore that the respondents guaranteed that the cruise services to be supplied by them would be reasonably fit for that purpose, and the effect of s 61(2) is that the respondents guaranteed that the cruise services to be supplied by them would be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
(3)As a result of Mr and Mrs Karpik contracting COVID-19 on the cruise, Mrs Karpik did not have a safe, relaxing and pleasurable cruise holiday. The particular purpose for which the services were acquired and the result that was desired to be achieved accordingly failed. The reason for that failure was because the services were not reasonably fit to achieve that purpose and they were not of such a nature and quality that they might reasonably have been expected to achieve that result.
(4)The purpose and result guarantees were accordingly not complied with.
(See section E.6 above.)
With regard to Mrs Karpik’s negligence and ACL s 60 claims, I have found as follows:
(1)The respondents owed Mrs Karpik a duty to take reasonable care for her health and safety, including with regard to the risk of harm caused by coronavirus infection (at [546]).
(2)The respondents also owed Mrs Karpik a duty of care with respect to a recognised psychiatric illness arising from Mr Karpik contracting COVID-19 on the voyage. In respect of the claim in negligence, the “normal fortitude” test or requirement in CLA s 32(1) is satisfied (at [579]).
(3)The respondents breached their duty of care in various respects, namely by failing to:
(a)cancel the cruise (at [609]);
(b)warn of the heightened risk of the virus being on board RU2007 compared to cruise ships generally (at [625]), but not the heightened risk of infection from the virus on a cruise ship compared to the community generally because that was an obvious risk (at [618]);
(c)implement better pre-embarkation screening, namely temperature screening for passengers and crew and requiring all passengers and crew to record whether they were suffering from any symptoms of COVID-19 and to deny them boarding if they were (at [649]);
(d)implement a system of physical distancing on board (ie, in accordance with the 1.5m rule) (at [665]);
(e)from 11 March 2020, isolate passengers who presented with ARI and ILI on the cruise and failing to provide roommates of those passengers with face masks, alcohol hand rub and information on how they could protect themselves from disease (at [681]).
With regard to Mrs Karpik’s ACL s 18 misleading and deceptive conduct claim, the respondents made the following misleading representations:
(1)A Safe to Board Representation, namely that it was reasonably safe for passengers to embark on the cruise (at [738]);
(2)A Reasonable Care Representation, namely that the respondents would take reasonable care for the safety of passengers during the cruise (at [742]);
(3)A Best Practices Representation, namely that the respondents had implemented, and would continue to implement, increased monitoring, screening and sanitation protocols to protect the health of passengers which measures were designed to be flexible to adapt to changing conditions and recommended best practice (at [752]); and
(4)A Pleasurable Cruise Representation, namely that the respondents would supply the promised cruising services as set out in their advertising brochures and passenger contracts and in doing so would do all things reasonably within their ability to enable the passengers to have a safe, relaxing and pleasurable cruise (at [765]).
I have found that causation and loss is established on each of the causes of action (at [772], [837] and [846]-[847]).
I have found that Mrs Karpik’s COVID-19 infection gave rise to very mild symptoms, and did not result in Long COVID, with the result that it contributes very little to any non-economic loss (at [893]). The non-economic loss for the adjustment disorder is assessed at 8% of a most extreme case (at [1007]), and if Mrs Karpik had Long COVID that would be assessed at 4% of a most extreme case (at [1008]). In the result, no personal injury damages are awarded on the ACL ss 60, 61(1) and 61(2) claims or the negligence claim as the non-economic loss is less than the threshold of 15%.
Out of pocket expenses on the personal injury damages are recoverable on the ACL ss 60, 61(1) and 61(2) and the negligence claim in the sum of $4,423.48 plus interest (at [1042]).
Distress and disappointment damages, which would be available on all the causes of action, do not exceed the sum of the refund paid to Mrs Karpik with the result that no such damages are payable (at [1028]-[1029]).
I have not found it a fruitful exercise to calculate the pre-judgment interest that Mrs Karpik is entitled to on her out of pocket expenses. I expect the parties to agree that.
It is also going to be necessary to make final decisions on the common questions.
I will therefore list the matter for further case management, and direct the parties to bring in agreed or competing orders to give effect to these reasons and for the determination of the common questions.

I certify that the preceding one thousand and fifty-nine (1059) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.
Associate:
Dated: 25 October 2023

File number:	NSD 806 of 2020
Judgment of:	STEWART J
Date of judgment:	25 October 2023
Catchwords:	REPRESENTATIVE PROCEEDINGS – where lead applicant claims that she and her husband were infected with coronavirus on board the cruise ship Ruby Princess – where claims made pursuant to the Australian Consumer Law (ACL) and in negligence – trial of lead applicant’s claims – common questions HIGH COURT AND FEDERAL COURT – federal jurisdiction – application of ss 5H, 5I, 5R, 16 and 32(1) of the Civil Liability Act 2002 (NSW) (CLA) and s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to consumer guarantee claims under the ACL – whether picked up and applied as surrogate federal law by ACL s 275 – if picked up whether applicable on the facts of the case CONSUMER LAW – claims for failure to comply with the care guarantee in ACL s 60 and the purpose and result guarantees in ACL ss 61(1) and 61(2) – identification of the relevant services – terms on which the services were to be provided – particular purpose and result wished to be achieved – meaning of “particular” purpose – whether particular purpose made known – where particular purpose was to have a safe, relaxing and pleasurable cruise holiday – whether services reasonably fit for purpose – whether the services were of such a nature and quality, state or condition that they were reasonably likely to achieve desired result – where applicant did not have a safe, relaxing and pleasurable cruise holiday NEGLIGENCE – whether the respondents (being the owner and charterer of the vessel) owed the applicant a duty of care – where applicant a passenger on a cruise ship – whether duty is novel or falls within recognised category – whether scope of duty extends to the harm allegedly suffered – nature of relationship between passengers and cruise ship operators – reliance of passengers on cruise ship operators for their safety – respondents’ peculiar knowledge of risk of coronavirus outbreak on their cruise ship – whether respondents owed applicant a duty of care as a close family member in respect of mental harm caused by passengers suffering and near death experience SHIPPING AND NAVIGATION – whether owner and operators of passenger vessel owe passengers a duty of care to take reasonable precautions to protect and safeguard them from infectious disease – scope of duty – whether duty breached – negligence NEGLIGENCE – breach of duty – identification of relevant risk of harm – whether reasonable person in the position of the respondents would have taken the precautions identified by the applicant – consideration of factors in ss 5B and 5C of the CLA – whether respondents should have cancelled the cruise – relevance of industry guidelines, lack of governmental action restraining operation of cruise industry and extent of respondents’ knowledge at time of departure of cruise – where no evidence adduced of the burden of taking precautions – whether respondents should have warned the applicant about the risk of coronavirus – whether risk was “obvious” within meaning of CLA s 5H – whether respondents’ screening of passengers and crew prior to embarkation was reasonably appropriate in the circumstances – whether respondents should have introduced physical distancing CONSUMER LAW – misleading and deceptive conduct under ACL s 18(1) – whether conduct misleading or deceptive or likely to mislead or deceive – identification of relevant conduct and what representations were conveyed – whether representations were future representations – where representations concerned future conduct (or present and future conduct) relative to the time when the representations were made – where representations gave rise to a reasonable expectation that the respondents would disclose if they were no longer able to provide the services as promised – continuing representations NEGLIGENCE – causation – application of CLA s 5D – factual causation – whether failure to appropriately screen passengers and crew and failure to implement physical distancing were causative of the applicant’s loss in the event that the respondents were not in breach by failing to cancel the cruise and failing to warn – whether respondents’ negligence caused harm or only increased the risk of harm NEGLIGENCE – contributory negligence – whether the applicant failed to take reasonable care for her own safety by going on the cruise, failing to practice physical distancing and failing to wear a face mask DAMAGES – where non-economic loss, past and future medical expenses and distress and disappointment damages claimed – where personal injuries allegedly suffered were COVID-19 infection, Long COVID and psychiatric illness – whether severity of non-economic loss is at least 15% of a most extreme case – availability and assessment of distress and disappointment damages – where applicant received a full refund of cost of cruise – out of pocket expenses EVIDENCE – expert evidence – whether opinion as to Long COVID infection based on the witness’s specialised knowledge
Legislation:	Competition and Consumer Act 2010 (Cth) ss 137B, 137C, Sch 2 (Australian Consumer Law) ss 4, 18, 60, 61(1), 61(2), 236, 267, 275 Evidence Act 1995 (Cth) ss 76, 79 Judiciary Act 1903 (Cth) ss 79, 80 Trade Practices Act 1974 (Cth) (repealed) ss 51A(2), 74(1), 74(2A), 74D Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 (Cth) ss 4, 5 Civil Liability Act 2002 (NSW) ss 3, 5, 5A(1), 5B, 5C, 5D, 5F, 5H, 5I, 5N, 5O, 5R, 11A, 16, 17, 17A(1), 27, 30(5), 32 Interpretation Act 1987 (NSW) ss 12(1)(b), 31 Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1) Civil Liability (Non-economic Loss) Amendment Order 2023 (NSW) Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 done at Athens on 13 December 1974, as amended by the protocol amending it done at London on 1 November 2002 art 3(1)
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262 CLR 1 Roads and Traffic Authority v Dederer [2007] HCA 42; 234 CLR 330 Rogers v Whitaker [1992] HCA 58; 175 CLR 479 Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 Rooty Hill RSL Club Ltd v Karimi [2009] NSWCA 2 Rosenberg v Percival [2001] HCA 18; 205 CLR 434 Royal Caribbean Cruises Ltd v Rawlings [2022] NSWCA 4; 107 NSWLR 51 Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456 Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Sharman v Evans [1977] HCA 8; 138 CLR 563 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Slater v Finning Ltd [1997] AC 473 Smith v Leurs [1945] HCA 27; 70 CLR 256 Sneddon v Speaker of the Legislative Assembly [2011] NSWSC 508 Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 Sparks v Hobson [2018] NSWCA 29; 361 ALR 115 Spiteri v Visyboard Pty Ltd [2005] VSCA 132 State Government Insurance Commission v Laube (1984) 37 SASR 31 State Rail Authority of New South Wales v Brown [2006] NSWCA 220 State Rail Authority of New South Wales v Chu [2008] NSWCA 14; [2008] Aust Torts Reports ¶81-940 Steiner v Magic Carpet Tours Pty Ltd [1984] FCA 323 at pp 33-34; ATPR ¶40-490 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Sutherland Shire Council v Major [2015] NSWCA 243 Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517 Swift v Fred Olsen Cruise Lines [2016] EWCA Civ 785 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Sykes v Reserve Bank of Australia [1998] FCA 1405; 88 FCR 511 Tabet v Gett [2010] HCA 12; 240 CLR 537 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2019] NSWSC 1506 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2022] HCA 11; 399 ALR 535 Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449 Thompson v NSW Land and Housing Corporation [2011] NSWSC 941 Ting v Blanche [1993] FCA 781; 118 ALR 543 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organics Inc [1992] FCA 962; 38 FCR 1 Tomisevic v Menzies Wagga Wagga Southern Pty Ltd [2005] NSWCA 178 Travel Compensation Fund v Robert Tambree t/as R Tambree and Associates [2005] HCA 69; 224 CLR 627 Ultramares Corporation v Touche (1931) 225 NY 170 (NY Ct App) Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Varga v Galea [2011] NSWCA 76 Wallace v Kam [2012] NSWCA 82; [2012] Aust Torts Reports ¶82-101 Wallace v Kam [2013] HCA 19; 250 CLR 375 Watts v Rake [1960] HCA 58; 108 CLR 158 Wicks v State Rail Authority of New South Wales; Sheehan v Same [2010] HCA 22; 241 CLR 60 Williams v Toyota Motor Corporation [2022] FCA 344 Williams v United States of America [2007] FCAFC 109; 161 FCR 220 Wong Mee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38 World Series Cricket Pty Ltd v Parish [1977] FCA 77; 16 ALR 181 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Zhang v VP302 SPV Pty Ltd [2009] NSWSC 73; 223 FLR 213 Zreika v New South Wales [2009] NSWCA 99 Ipp Report (Review of the Law of Negligence (Final Report, September 2002)) Lewins K, “Cruise Ship Operators, Their Passengers, Australian Consumer Law and State Civil Liability Acts – Part 1” (2015) 29(2) Australian and New Zealand Maritime Law Journal 93 Lewins K, International Carriage of Passengers by Sea (Sweet & Maxwell, 2016)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	1059
Date of last submissions:	4 July 2023
Date of hearing:	12-14, 17-21 and 24-28 October 2022; 1 and 8-10 November 2022; and 7 December 2022
Counsel for the Applicant:	I R Pike SC, A P L Naylor and R J May
Solicitor for the Applicant:	Shine Lawyers
Counsel for the Respondents:	D McLure SC, G O’Mahoney, H Pintos-Lopez, T R March, A L Reid and H Cooper
Solicitor for the Respondents:	Clyde & Co

ORDER MADE BY:	STEWART J
DATE OF ORDER:	25 OCTOBER 2023

A. INTRODUCTION	[1]
B. THE FACTS	[13]
B.1 The applicant	[13]
B.2 The respondents	[16]
B.3 The experts	[26]
B.4 Coronavirus	[30]
*B.4.1 Introduction*	[30]
*B.4.2 Characteristics and transmission*	[32]
*B.4.3 Symptoms*	[44]
*B.4.4 The respondents’ knowledge*	[49]
*B.4.5 Prevalence of coronavirus prior to 8 March 2020*	[51]
B.5 Coronavirus risk	[56]
*B.5.1 Previous coronavirus outbreaks on cruise ships*	[56]
(1) The Diamond Princess	[57]
(2) The Grand Princess	[64]
(3) Seven Nile River cruise ships	[69]
(4) The Ruby Princess voyage RU2006	[70]
*B.5.2 Guidelines, protocols and procedures*	[81]
(1) The Centers for Disease Control and Prevention	[82]
(2) The World Health Organization’s Interim Guidance	[85]
(3) NSW’s Enhanced COVID-19 Procedures for the Cruise Line Industry	[86]
(4) Federal Government regulation and guidance	[88]
(5) The respondents’ protocols, instructions and decisions	[94]
*B.5.3 Coronavirus risk on cruise ships*	[109]
B.6 *The Ruby Princess* voyage RU2007**	[125]
*B.6.1 Communications with passengers*	[125]
(1) Cruise Personalizer	[125]
(2) Emergency Notification	[126]
(3) Dear Henry email	[127]
*B.6.2 Prior to check-in*	[129]
*B.6.3 Pre-embarkation screening*	[130]
*B.6.4 Medical supplies*	[137]
*B.6.5 Cleaning, hygiene and sanitation measures*	[139]
*B.6.6 Hand hygiene*	[148]
*B.6.7 Physical distancing*	[154]
*B.6.8 Management of persons with respiratory symptoms*	[155]
B.7 Mrs Karpik’s evidence	[161]
*B.7.1 Introduction*	[161]
*B.7.2 Background*	[164]
*B.7.3 Knowledge of risk*	[172]
*B.7.4 Cruise Personalizer*	[180]
*B.7.5 Emergency Notification*	[183]
*B.7.6 Dear Henry email*	[186]
B.8 The Karpiks’ experience of the cruise and thereafter	[188]
*B.8.1 Pre-embarkation*	[188]
*B.8.2 Post-embarkation*	[191]
*B.8.3 The voyage itself*	[194]
*B.8.4 Disembarkation and thereafter*	[211]
C. *WERE MR AND MRS KARPIK INFECTED WITH CORONAVIRUS ON THE RUBY PRINCESS?*	[234]
C.1 When was Mr Karpik infected with coronavirus?	[235]
*C.1.1 Introduction*	[235]
*C.1.2 The expert evidence*	[238]
(1) Associate Professor Yakob’s report	[240]
(2) Professor Holmes’s reply	[247]
(3) Professor Wilder-Smith’s reply	[256]
(4) Joint Report 6	[261]
(a) Prevalence and risk of COVID-19 in Wollongong and NSW	[265]
(b) The Karpiks’ trip to The Rocks prior to boarding	[278]
(c) The influenza test taken by Mr Karpik	[283]
*C.1.3 Discussion*	[284]
*C.1.4 Findings*	[294]
C.2 Was Mrs Karpik infected with COVID-19 at all?	[295]
*C.2.1 Introduction*	[295]
*C.2.2 Mrs Karpik’s symptoms*	[298]
(1) Evidence in chief	[298]
(2) Cross-examination	[303]
*C.2.3 Mrs Karpik’s SARS-CoV-2 tests*	[314]
*C.2.4 Interpretation of the PCR result*	[325]
(1) The expert evidence	[325]
(2) Discussion	[341]
(a) Professor Paterson’s reliance on the Wikramaratna study	[342]
(b) Professor Paterson’s reliance on the Kucirka study	[351]
(c) The remaining evidence	[362]
*C.2.5 Interpretation of the serological results*	[365]
(1) The expert evidence	[368]
(2) Discussion	[382]
*C.2.6 Findings*	[395]
D. THE APPLICATION OF STATE LEGISLATION IN FEDERAL JURISDICTION	[398]
D.1 Introduction	[398]
D.2 Non-economic loss: s 16 of the CLA	[406]
D.3 Contributory negligence: s 5R of the CLA & s 9(1) of the LRMP Act	[420]
D.4 Obvious risks: s 5H of the CLA	[421]
D.5 Inherent risks: s 5I of the CLA	[431]
D.6 Normal fortitude: s 32(1) of the CLA	[439]
E. ACL S 61: THE PURPOSE AND RESULT CONSUMER GUARANTEES	[445]
E.1 Introduction	[445]
E.2 The relevant services, and the terms of service	[455]
E.3 The particular purpose and the result wished to be achieved	[464]
E.4 Reasonably fit for purpose	[481]
E.5 The nature, and quality, state or condition	[498]
E.6 Resolution	[499]
F. NEGLIGENCE AND ACL S 60	[511]
F.1 Introduction	[511]
F.2 Duty of care to passengers	[519]
F.3 Duty of care to close family members	[560]
F.4 Breach of duty	[580]
*F.4.1 Introduction*	[580]
*F.4.2 Cancel the cruise*	[595]
*F.4.3 Warn passengers of coronavirus risk*	[611]
*F.4.4 Screening of passengers and crew*	[626]
*F.4.5 Enforce physical distancing*	[650]
*F.4.6 Monitor & implement relevant guidelines and protocols*	[666]
(1) Quarantine and isolation as at 8 March 2020	[666]
(2) Further updated guidelines	[682]
*F.4.7 Maintain adequate medical supplies*	[689]
*F.4.8 Summary*	[702]
G. MISLEADING AND DECEPTIVE CONDUCT	[703]
G.1 Introduction	[703]
G.2 The pleaded conduct and what it conveyed	[710]
G.3 Future and continuing representations	[722]
G.4 Misleading or deceptive or likely to mislead or deceive	[735]
*G.4.1 Safe to Board Representation*	[735]
*G.4.2 Reasonable Care Representation*	[739]
*G.4.3 Best Practices Representation*	[743]
*G.4.4 Pleasurable Cruise Representation*	[754]
H. CAUSATION AND LOSS	[766]
H.1 ACL s 61 consumer guarantees	[766]
H.2 Negligence and ACL s 60	[773]
*H.2.1 Factual causation*	[776]
(1) Failure to warn	[779]
(2) Failure to implement reasonable precautions	[788]
(a) Effectiveness of screening for symptoms	[795]
(b) Effectiveness of physical distancing	[797]
(c) The balance of probabilities and the Fairchild point	[812]
*H.2.2 Scope of liability*	[825]
*H.2.3 Resolution*	[837]
H.3 Causation for breaches of ACL s 18	[838]
I. CONTRIBUTORY NEGLIGENCE	[848]
I.1 The parties’ cases	[848]
I.2 Consideration	[855]
J. DAMAGES	[863]
J.1 Introduction	[863]
J.2 Mrs Karpik’s medical condition prior to the voyage	[875]
*J.2.1 Depression*	[876]
*J.2.2 Anxiety*	[884]
*J.2.3 Restless legs syndrome*	[887]
J.3 COVID-19 infection	[891]
J.4 Adjustment disorder	[894]
*J.4.1 Introduction*	[894]
*J.4.2 Exacerbation of a pre-existing psychiatric injury, or a new injury?*	[903]
*J.4.3 Effects of adjustment disorder*	[919]
(1) March to June 2020	[919]
(2) June 2020 to present	[923]
(3) Summary	[938]
J.5 Long COVID	[939]
*J.5.1 Introduction*	[939]
*J.5.2 Joint report*	[943]
*J.5.3 Dr Herrera’s specialised knowledge*	[951]
*J.5.4 Did Mrs Karpik have Long COVID?*	[962]
(1) Dr Herrera’s evidence	[962]
(2) Dr Chen’s evidence	[971]
(3) Consideration	[984]
J.6 Conclusion on personal injury damages	[1000]
J.7 Distress and disappointment	[1010]
*J.7.1 Introduction*	[1010]
*J.7.2 Consideration*	[1019]
*J.7.3 Conclusion*	[1028]
J.8 Out of pocket expenses	[1030]
*J.8.1 Mrs Karpik’s claim*	[1030]
*J.8.2 The respondents’ position*	[1033]
*J.8.3 Consideration*	[1035]
J.9 Conclusion on damages	[1043]
K. COMMON QUESTIONS	[1044]
L. SUMMARY AND CONCLUSION	[1047]

Report	Contributors	Report Topic
Joint Expert Report 1 dated 16 September 2022	Professors Paterson, Wilder-Smith, Bennett, McCaw and Associate Professor Vally	What were the characteristics of coronavirus as at March 8, 2020, including what was known at that time?
Joint Expert Report 2 dated 16 September 2022	Professors Wilder-Smith, Rocklöv, Bennett, McCaw and Associate Professor Vally	How contagious was COVID-19 as at 8 March 2020, including what was known at that time?
Joint Expert Report 3 dated 16 September 2022	Professors Wilder-Smith, Rocklöv, Bennett, McCaw and Associate Professor Vally	Was the risk of contracting COVID-19 on a cruise ship compared to the risk of contracting COVID-19 in the community generally heightened as at 8 March 2020, including what was known at that time?
Joint Expert Report 5 dated 16 September 2022	Professors Wilder-Smith, Rocklöv, Bennett and McCaw and Associate Professor Vally	Having regard to what was known or knowable as at 8 March 2020, was the risk of contracting COVID-19 on RU2007 heightened compared to the risk of contracting COVID-19 on another cruise ship at that time?
Joint Expert Report 6 dated 16 September 2022	Professors Wilder-Smith, Holmes, Rocklöv and Paterson and Associate Professor Yakob	The probability that Mr Karpik was infected prior to boarding RU2007
Joint Expert Report 7 dated 14 September 2022	Professors Paterson and Kesson	What is the likelihood that Mrs Karpik contracted COVID-19 before 20 April 2020?
Joint Expert Report 8 dated 15 September 2022	Professors Wilder-Smith and Paterson and Associate Professor Yakob	If it is likely that Mrs Karpik was infected with COVID-19 before 20 April 2020, what is the likelihood that she was infected on RU2007 or from another passenger on RU2007, including Mr Karpik?
Joint Expert Report 9 dated 16 September 2022	Professors Paterson and Wilder-Smith	Whether social distancing was known to reduce the spread of COVID-19 by 8 March 2020? Whether social distancing would have made a difference to the risk of Mrs Karpik contracting COVID-19 during the voyage?
Medico-Legal (Psychiatry) Experts Joint Conference Report dated 10 September 2022	Dr Parmegiani and Dr Samuels	Eight topics related to Mrs Karpik’s psychiatric health.
Medico-Legal (Long COVID) Experts Joint Conference Report dated 13 September 2022	Dr Herrera and Dr Chen	Eight topics related to “Long COVID” and whether and the extent to which Mrs Karpik suffers from the condition.