Kelly v Flight Centre Travel Group Limited ACN 003 377 188 Trading as Student Flights (Civil Dispute) - [2021] ACAT 79

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KELLY & ANOR v FLIGHT CENTRE TRAVEL GROUP LIMITED ACN 003 377 188 TRADING AS STUDENT FLIGHTS (Civil Dispute) [2021] ACAT 79

XD 1037/2020
Catchwords: CIVIL DISPUTE – where skill or judgement of the travel agent was relied on to book flight tickets – agent’s guarantee of due care and skill and services being fit for the specified purpose – whether the agent’s failure to identify a customer’s correct surname was a result of a failure to use an acceptable level of skill or technical knowledge – customers granted refund of additional airfare costs and compensation for stress, inconvenience and delay

Legislation cited: Australian Consumer Law ss 60, 61

Cases cited:Flight Centre Ltd v Janice Louw [2011] NSWSC 132

Tribunal: Senior Member D Mulligan

Date of Orders:  26 August 2021
Date of Reasons for Decision:      26 August 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1037/2020

BETWEEN:
JOHN KELLY
First Applicant

LUCINDA ATKINSON
Second Applicant

AND:
FLIGHT CENTRE TRAVEL GROUP LIMITED ACN 003 337 188 TRADING AS STUDENT FLIGHTS
Respondent

TRIBUNAL:Senior Member D Mulligan

DATE:26 August 2021

ORDER

The Tribunal orders that:

The respondent is to pay the applicant the sum of $3,858.83 by close of business, one calendar month after the publication of this decision.

………………………………..
Senior Member D Mulligan

REASONS FOR DECISION

In January 2019 the applicants in this matter, John Kelly and Lucinda Atkinson, were planning a trip to Canada to visit family. They were planning on taking Deirdre, their five-year-old daughter with them (the applicants or family).
In the ‘details of claim’ document,[1] Mr Kelly explained why the applicant elected to involve a travel agent as opposed to booking the trip themselves. He said:
…We had considered booking tickets ourselves online to get a cheaper price, however we decided that it would be better to use the services of a professional booking agent so that we could rely on their expertise and be supported in the process, especially in case something was to go wrong with the flights.
[1] Part of exhibit A1
It should be noted that neither of the applicants are seasoned travellers and both were suffering chronic illness. Mr Kelly suffers from chronic fatigue and Ms Atkinson from an autoimmune condition.
On 12 January 2019, the applicants went to the premises of the Flight Centre Travel Group Ltd, trading as Student Flights (the respondent or Student Flights) in Phillip and met the store manager Lea Knight (Ms Knight or the agent).
They discussed their travel options and were able to put together an itinerary that would meet the family’s needs.
As part of the process Ms Knight was required to input the names of the three family members into the respondent’s computer system. Ms Knight had trouble inputting Dierdre’s correct name, so Mr Kelly wrote it down for her on a piece of paper. He also wrote down his name and that of Ms Atkinson.
Mr Kelly correctly wrote his daughters name as “Deirdre Clare Atkinson Kelly”.
Ms Knight used that name to enter Deirdre’s details into the system.
The issue at the centre of this case is that the agent entered Deirdre’s surname as Atkinson Kelly, whereas it is in fact Kelly. Atkinson is one of Deirdre’s middle names.
Neither the applicants nor Ms Knight clarified what her first, middle and surname were.
Later that day, Ms Knight sent the applicants an email that contained an itinerary and costing. The document detailed who it had been prepared for in the following terms:
PREPARED FOR
KELLY/JOHN MR
ATKINSON/LUCINDA ISABEL MS
ATKINSON KELLY/ DEIRDRE CLARE
MISS [2]
[2] Exhibit R1, Attachment A.1
It seems clear from the document that the agent believed Deirdre’s surname to be Atkinson Kelly.
On 24 January 2019, Mr Kelly, replied to that email, changed the date of travel and asked for an updated costing.
On 26 January 2019, Ms Knight sent Mr Kelly an updated quote and itinerary. Following the receipt of this email Mr Kelly called Ms Knight and confirmed that they were happy with the proposed itinerary.
At approximately 3:54pm, the agent formalised the agreed itinerary when she created a combined invoice and itinerary (invoice number 191159404[3]) based on the instructions she had received from the applicants.
[3] Exhibit R1, Attachment C
The itinerary called for the family to leave Canberra at 6:00am on 7 June 2019 and to return to Canberra at 12:55pm on 3 July 2019.
The tickets cost in total $3,645. Deirdre’s ticket cost $977 and each of her parent’s tickets cost $1,334.
The first item on the invoice was the travellers’ names. The invoice stated:
Name(s) as per valid passport(s)
Traveller(s)        Title     First name      Middle name    Surname
MrJohn  Kelly
MsLucinda          ISABEL           Atkinson
Miss Deirdre           CLARE           Atkinson Kelly
It is apparent from the invoice that the agent believed Deirdre’s surname to be Atkinson Kelly, not Kelly.
At 4:01pm on 26 January 2019, Ms Knight sent Mr Kelly an email[4] which in part stated:
Current price is $3645.00 total for the family departing from Canberra (I was able to secure you a $100.00 discount on each of the adult tickets). Itinerary is attached below which matches the dates you had sent through and prices are secured until 4:00pm tomorrow night. If you are happy with the dates and times as well as the price I have sent you an online booking and payment form which you can complete from home to get everything locked in.
[4] Exhibit A1 - Applicants details of claim document - October 2020 – Email 2, page 2
The invoice and itinerary were included as an attachment to that email.
At about 3:48pm the following day (Sunday, 27 January 2019), Ms Knight emailed Mr Kelly.[5] In part the email read:
[5] Exhibit A1 - Applicants details of claim document - October 2020 – Email 4
We ask that you take the time to ensure we have all your details correct and to ensure your booking is processed correctly we request that you click on the below link and:
·Review your invoice
·Review and accept our Terms & Conditions
·Select and update your payment details
·Check the email addresses your consultant will be using for document distribution
It also stated:
Payment as per your invoice is due by 17:00, 27 January 2019…
And later it said:
Important: once you have accessed this link it will no longer be available to view your invoice. An updated invoice and receipt can be forwarded to you.
The link referred to in the email took the applicants to the respondent’s web portal, which the applicants used to confirm that they were accepting the travel package which had been proposed to them on 26 January 2019, and to make payment for the tickets.
The portal required the applicants to go through a number of screens in which they had to provide information or tick boxes applicable to their circumstances.
One of the facts the applicants were required to confirm was called the ‘Invoice Details Checklist’.[6] It provided:
Please confirm all the information in the attached documents is correct by checking the boxes below:
o   All passengers names are spelt correctly as per passports
o   Dates of travel are correct
o   Travel arrangements are correct
o   I have read and accepted the cancellation and amendment fees as per the invoice
If any of the above details are incorrect and you wish to make amendments please click here:…
[6] Exhibit R1
The applicants were content to click and accept that the details on the invoice were correct. They were content that the spelling of all three of their names was correct.
The applicants did not pick up on the fact that Deirdre’s surname in the invoice was recorded as Atkinson Kelly.
Likewise, the invoice details checklist created by the respondent did not specify the need for the traveller to correctly articulate that persons first, middle and surname as set out in their passport. This seems an unusual omission given the scope for misunderstanding and error. This is especially the case when one considers the variety of naming conventions that may apply to children who are part of blended families or children from families, like the applicants, where one partner does not take the surname of the other partner.
Step 4 in this process related to the issue of passports and visas. The process required the applicants to tick a box next to a phrase before the applicants could proceed to the next stage of the booking process. The applicants ticked the box next to the phrase which stated:
I understand that I am responsible for having the correct amount of validity on my passport (many countries require at least 6 months validity from date of return) and that I have the correct visa (if required) for the countries that I will be transiting or visiting.
If I am unsure about any passport or visa requirements I will notify my consultant immediately.[7]
[7] Exhibit R1
The applicants completed the respondent’s online form shortly after receiving the link to the respondent’s web portal. I do not know the precise time that process was finished, but at about 4:16pm on 27 January 2019 the agent sent Mr Kelly an email thanking him for completing the form.[8] This is about 28 minutes after the agent sent Mr Kelly the link to the web portal.
[8] Exhibit A1, Applicants details of claim document, October 2020, Email 3
On 14 March Mr Kelly emailed the agent and asked for his family’s updated itinerary.
On 26 March, Ms Knight replied. In her reply she attached both the original itinerary,[9] as well as the one finalised on 26 January 2019.[10] Both itineraries misstated Deirdre’s surname and referred to her as:
ATKINSON KELLY/DEIRDRE CLARE MISS
[9] Exhibit R1 Annexure G
[10] Exhibit R1 Annexure H
The invoice relating to 26 January 2019, was also updated so that it provided the applicants with not only their itinerary but also their e-Ticket receipt numbers. At this point the applicants had most of the information necessary to commence their travel on 17 June 2019.
Before travelling to Canada they needed one more thing; a visa or an electronic travel authority (ETA). The agent did not explicitly tell the applicants of the need to obtain visas before their travel. However, they became aware of this requirement, and they obtained them of their own volition.
On 10 June 2019, the applicants tried to check in online for their flights. They found that Deirdre was listed as an adult and they could not see a way of allocating her a seat with either of her parents. They then called and emailed the agent to gain some clarity about what was going on.
On 11 June 2019, the agent spoke with the airline and then emailed back to the applicants and assured them that it was airline policy for at least one of them to be seated with Deirdre during their flights. The agent asked if the applicants wanted her to order child’s meals for Deirdre and advised them to be at the airport early on the 17 June 2019, so that they could arrange seats located together.
At about 5am on 17 June 2019, the family went to Canberra Airport and tried to check in. They were unsuccessful in doing so as the check-in agent would not allow Deirdre to fly. The reason Deirdre could not board the aircraft was because the surname on her e-ticket did not match the surname on her passport. The surname on her passport was Kelly. The surname on her e-ticket was Atkinson Kelly.
Both the applicants and the respondent accept that the check-in agent acted correctly in not allowing Deirdre to board the flight.
The applicants were extremely upset by this turn of events and tried to get the check-in agent to change his or her mind, but they were unsuccessful in doing so.
The family contacted the respondent’s emergency assistance number, but they could not help at that time as the agent would need to be involved in the process of trying to salvage the family’s trip to Canada.
The family returned home and over the course of the day they discussed their situation with the agent and other employees of the respondent.
At about 4:04pm on 17 June 2021, the agent emailed the applicants with a new itinerary that would see the family travel the following day. The cost of the new tickets would be $4,258.83.[11] Although the price paid for Deirdre’s ticket, $977, needs to be deducted from that price, as her ticket was fully refunded to the applicants. The applicants have lost $3,281.83 ($4,258.83 minus $977) because the family were not able to travel on 17 June 2019, because of the error in Deirdre’s surname on her e-ticket.
[11] Exhibit R1 Attachment 13, Annexures L
I should also record that on 17 June 2019, the respondent made an offer of $725 to compensate the applicants and in settlement of any claim.

The applicants’ case

The applicants allege that their inability to travel on 17 June 2019 was a direct consequence of the agents “lack of care and competence” and that the agent was in breach of her obligations under consumer law. They are claiming $4,321 for the loss incurred in purchasing the tickets to travel on 18 June 2019 and an amount for their inconvenience ($1,000) plus the ACAT filing fee plus interest of $226.26. In total the applicants seek $4,624.26.
Their claim rests on sections 60 and 61 of the Australian Consumer Law, which provides:
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
61 Guarantees as to fitness for a particular purpose etc.
(1)If:
(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b)the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2)If:
(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b)the consumer makes known, expressly or by implication, to:
(i)the supplier; or
(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
(3)This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
It follows from section 60 that under the Australian Consumer Law the applicant’s must show they relied on the skill or judgment of the agent in helping them plan and book their trip to Canada.[12]
[12] Section 61(2)(c) of the Australian Consumer Law
I accept the applicant’s evidence that they were not experienced travellers, that they had chronic health issues and they wanted to “rely on their expertise and be supported in the process, especially in case something was to go wrong with the flights”.[13]
[13] Exhibit A1 – Details of claim document
As a matter of fact, I find that the applicants reasonably relied on the skill and judgement of the agent in making their bookings. The agent is a travel professional who was being paid for her skills.
Moreover, the applicants clearly articulated the service they were specifying, that is what it was they wanted from the agent; the tickets to take the family to and from Canada in June and July 2019.
It follows from those two findings of fact that agent’s services must be rendered with due care and skill and were fit for the specified purpose. This means they must use an acceptable level of skill or technical knowledge when providing the services; and take all necessary care to avoid loss or damage when providing the services.
The ultimate question for consideration is whether the agent’s failure to identify Deirdre’s correct surname was a consequence of a failure to use an acceptable level of skill or technical knowledge.
The short answer to that question is yes, the agent did fail to use an acceptable level of skill or technical knowledge when on 12 January 2019 she entered Deirdre’s details into her the respondent’s computer system and by later taking care to ensure that the details in that system, insofar as they related to Deirdre were correct.
On 12 January 2019, the agent was having difficulties entering Deirdre’s name. Mr Kelly wrote all three members names onto a piece of paper so that the agent could get the correct spelling.
The agent must have seen that the applicants’ surnames were different to each other and that she could not safely conclude from what had been written on the piece of paper what Deirdre’s surname was. In my view a reasonable agent should have asked Deirdre’s parents to tell him or her what Deirdre’s surname was.
Instead, the agent made an incorrect assumption which led to foreseeable loss.
The applicants had no idea that the error in Deirdre’s surname on the e-ticket would result in her inability to travel.
The agent should have known that an error in Deirdre’s surname would affect the families’ ability to travel together to Canada on 17 June 2019.
As outlined above the applicants were asked when using the respondent’s portal on 26 January 2019, to confirm that the spelling of the family’s names were correct.
Their names were spelled correctly, and the applicants correctly ticked the box in the web portal confirming that fact.
The respondent’s web portal did not ask whether the passenger’s first name middle name(s) and surname were correct, nor did it alert the applicants to the serious consequences of trying to fly with a surname that did not match the surname used on an e-ticket.

The respondent’s position

The respondent’s case is conveniently set out in the email sent by one of the respondent’s employees, Nina Hedges, to Mr Kelly at about 12:42pm on 17 June 2019. The email in part states:
John, our position remains firm on this matter.
You were provided with an opportunity to check the names appeared as per passport and were correct – you were instructed to check this as part of your Electronic Acceptance.
You were put on notice of the consequences of not having the name correct.
You paid in reliance of an invoice and travel itinerary where the surname on the reservation and your childs actual surname as per passport did not match.
Our agent was not privy to the passport but you were and you failed to note that the invoice and your childs passport did not match.
Our offer of waiving our $75 change fee per person and a $500 goodwill gesture towards your total change costs is still on offer to you if you would like to accept.[14]
[14] Exhibit R1 Attachment K
Ms Hedges’ email contains a number of errors. Firstly, the web portal process did not have a question or a process that required the applicants to “check the names appeared as per passport and were correct – you were instructed to check this as part of your Electronic Acceptance”. The requirement was to check the spelling of the names.
Secondly, Ms Hedge is in error when she states, “You were put on notice of the consequences of not having the name correct”. The respondent did not point me to any evidence where the consequence of the error in Deirdre’s surname was pointed out to the applicants prior to their attempt to travel.
The respondent also submitted that[15] “the applicant had been presented with documentation specific to his travel on three separate occasions before proceeding with payment (12^th January 2019, 26^th January and on the 27^th January 2019” and the error in Deirdre’s name was made in each of those documents.
[15] Exhibit R2 Page 4 Final Bullet Point
I accept that the invoices and itineraries the applicants received from the agent were incorrect in the way they described Deirdre’s first name, middle names and surname.

The applicants did not enter those incorrect details into the respondent’s computer system and they did not understand the significance of the error. At no stage prior to 17 June 2019, did the agent tell the applicants of the significance of that error and the need for the names on the e-tickets to exactly match the names on the passports.
The respondent also relied on the fact that the agent did not sight the families’ passports and consequently could not have known of Deirdre’s proper name.
Moreover, the respondent points to page 8 of its terms and conditions, which were emailed to the applicant, where it says:
If you need information regarding visas, passports and other travel document requirements for your trip, please let your consultant know
I note there is nothing in that term or condition which highlights the consequence of using the wrong surname on an e-ticket.
If the respondent views sighting the families’ passports to be a prudent precaution then that fact should have been highlighted to the applicant during the booking process.

Conclusion

In my view the applicants have made out their claim and are entitled to the amount it cost them to travel on 18 June 2019: $3,281.83.
The applicants also sought compensation for the stress, inconvenience and delay to their holiday. I accept that they were very upset and stressed by their inability to board the flight on 17 June 2019, and for the rest of that day while they were trying to arrange new flights.
The respondent relied on Flight Centre Ltd v Janice Louw [2011] NSWSC 132 (Flight Centre Ltd v Janice Louw) in support of the proposition that it is not reasonable to place a dollar value upon stress and anxiety.
Flight Centre Ltd v Janice Louw is distinguishable from the present case as it was argued under the Civil Liability Act 2002 (NSW) and not under the Australian Consumer Law. However, I do accept that any award for stress and anxiety needs to be constrained and proportional.
I think it reasonable to award them $500 for this loss.
They are also entitled to the ACAT filing fee of $77.
They are not in my view entitled to interest as there has been significant unexplained delay between the events of this dispute and the lodgement of the claim at ACAT.
In total the respondent is to pay the applicant the sum of $3,858.83 by close of business one calendar month after the publication of this decision.
………………………………..

Senior Member D Mulligan

Date(s) of hearing	6 April 2021
First Applicant:	In person
Second Applicant:	In person
Respondent:	Ms C White, authorised representative