McLean-Phillips v Carnival plc t/as P&O Cruises Australia (No 3)
[2023] FCA 985
•18 August 2023
FEDERAL COURT OF AUSTRALIA
McLean-Phillips v Carnival plc t/as P&O Cruises Australia (No 3) [2023] FCA 985
File number(s): NSD 1039 of 2022 Judgment of: JACKMAN J Date of judgment: 18 August 2023 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment, or alternatively to strike out the further amended statement of claim – whether the statement of claim now pleads the deficiencies in the services provided and a causal link between those deficiencies and the claimed loss – whether there is a reasonable prospect of establishing a breach of the statutory guarantees by reason of a failure to implement effective cleaning protocols – whether the pleadings relating to a failure to warn should be struck out – leave granted to file further amended statement of claim Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law), ss 61, 267, 268
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules2011 (Cth) rr 16.21, 26.01
Cases cited: Crowley v Worley Limited [2022] FCAFC 33; (2022) 400 ALR 452
McLean-Phillips v Carnival plc t/as P&O Cruises Australia [2023] FCA 328
Pancontinental Mining Limited v Posgold Investments Pty Ltd [1994] FCA 131; (1994) 121 ALR 405
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 25 Date of hearing: 16 August 2023 Counsel for the Applicant: Mr J Sheahan KC, Ms R Francois and Mr M Pruscino Solicitor for the Applicant: Shine Lawyers Counsel for the Respondent: Mr D McLure SC, Mr J Kennedy and Mr P Springthorpe Solicitor for the Respondent: Clyde & Co ORDERS
NSD 1039 of 2022 BETWEEN: JULIE MCLEAN-PHILLIPS
Applicant
AND: CARNIVAL PLC T/AS P&O CRUISES AUSTRALIA
Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file a further amended statement of claim in the form annexed and marked “A”.
2.The costs of the respondent’s Interlocutory Application dated 23 June 2023 be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Annexure A
Further Amended Statement of Claim
No. NSD 1039 of 2022
Federal Court of Australia
District Registry: New South WalesDivision: General
Julie McLean-Phillips
Applicant
Carnival Plc ARBN 107 998 443
Respondent
A.THE GROUP MEMBERS
1.The Applicant brings this proceeding on her own behalf and on behalf of represented persons pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) being natural persons (Group Members) who:
(a)travelled as passengers on the ‘Sun Princess’ cruise ship on the following journeys within the period 5 December 2016 to 26 February 2017 (The Relevant Cruises):
Cruise Port of Origin Departure Date Via Arrival Date Number of days Definition (i) S622P Fremantle 5/12/16 Fremantle
Albany
Kangaroo Island
Adelaide
Burnie
Melbourne
Port Lincoln18/12/16 13 days First Cruise (ii) S623 Fremantle 18/12/16 Margaret River
21/12/16 3 days Second Cruise (iii) S701 Fremantle
21/12/16 Komodo Island
Ujung Padang
Semarang
Probolinggo
Bali
Lombok05/01/17 15 days Third Cruise (iv) S702 Fremantle 5/01/17 Margaret River
08/01/17 3 days Fourth Cruise
(v) S703 Fremantle 8/01/17 Geraldton
Broome
Kimberley Coast
Darwin
Port Douglas
Airlie Beach
Brisbane22/01/17 14 days Fifth Cruise (vi) S704 Brisbane 22/01/17 Alotau
Kitava
Rabaul
Kiriwana Island
Doini Island
Kawanasausau Strait02/02/17 11 days Sixth Cruise (vii) S705 Brisbane 2/02/17 Fiordland National Park
Dunedin
Akaroa
Wellington
Napier
Tauranga
Auckland16/02/17 14 days Seventh Cruise (viii) S706 Brisbane 16/02/17 Noumea
Mystery Island
Vila
Champagne Bay
Luganville26/02/17 10 days Eighth Cruise (b)in their dealings with the Respondent (Carnival), acquired the services of the Carnival within the meaning of section 2 of the Australian Consumer Law (ACL) and were each a ‘consumer’ within the meaning of section 3 of the ACL;
(c)suffered loss or damage by reason of being a passenger on one or more of the Relevant Cruises;
(d)are not:
(i)legal practitioners providing services to Ms McLean-Phillips and other group members in order to assist them to recover the relief claimed in this proceeding; or
(ii)judicial officers of the Federal Court of Australia or the High Court of Australia.
A.THE PARTIES
2.The Applicant (Ms McLean-Phillips):
(a)is a natural person;
(b)at all material times was a resident in Western Australia; and
(c)in her dealings with Carnival was a ‘consumer’ within the meaning of section 3 of the ACL.
3.Carnival:
(a)is an incorporated entity able to be sued in its own corporate name and style;
(b)had a registered office in Australia, situated at Level 5, 465 Victoria Avenue, Chatswood, in the state of New South Wales;
(c)carried on business in Australia, as a provider of cruises, through at least the use of Australian ports, marketing, advertising and supply of services to passengers located in Australia (among other places) through which services it derived revenue in Australia; and
(d)for the purpose of conducting this business, used local agents.
B.THE RELEVANT RELATIONSHIP BETWEEN THE PARTIES
4.During March 2016, Ms McLean-Phillips entered into an agreement with Carnival for the supply of recreational cruise services provided by Carnival (the ‘Services’).
Particulars
On or about 21 March 2016, Ms Vivienne Trudgeon as agent for Ms McLean-Phillips, entered into an agreement with Ozcruising Pty Ltd as agent for Carnival, for their passage on the 13-night cruise identified as “S622P” (Southern Australia Cruise) commencing on 5 December 2016.
5.Ms McLean-Phillips acquired the Services by going on the Southern Australia Cruise.
Particulars
The Services were accepted by Ms McLean-Phillips by her embarking on the Southern Australia Cruise
6.The Services acquired by Ms McLean-Phillips were:
(a)‘services’ within the meaning of section 2 of the ACL.
Particulars
Rights, benefits, privileges or facilities or amenities were provided, or were to be provided, by Carnival to Ms McLean-Phillips to arrange for and facilitate the cruise for the use, amusement, entertainment, recreation or instruction of Ms McLean-Phillips. Without limitation, the services included Carnival arranging for the tours and monitoring and assessing (and therefore communicating with Ms McLean-Phillips) whether the tour itinerary could proceed in accordance with the existing arrangements or should be varied, cancelled or delayed. The services thus also included Carnival providing information to passengers, before boarding the cruise and during the cruise, about events and circumstances affecting or likely to affect passengers’ enjoyment of the cruise.
(b)supplied in trade or commerce within the meaning of section 4 of the Competition and Consumer Act 2010 (Cth).
7.Ms McLean-Phillips made known to Carnival that the particular purpose for the acquisition of the Services was to have a relaxing and pleasurable cruise and experience the selected cruise in accordance with the itinerary and standards advertised by Carnival including the use of the facilities and amenities provided on board the ship and to be able to visit the various ports (the ‘Particular Purpose’).
Particulars
(i) The Particular Purpose was impliedly made known to Carnival by:
A. the nature of the relationship between Ms McLean-Phillips on the one hand (as a consumer of the Services) and Carnival (as the supplier of the Services);
B. the purpose of the transaction that Ms McLean-Phillips entered into with Carnival; and
C. the booking of and payment for the Services.
(ii) The itinerary and standards for the cruises were set out in the information provided by Carnival to Ozcruising on its website at and the information generally provided by Carnival on its website at and in its “2016-2017 Cruise Atlas”.
(iii) Further particulars may be provided after discovery, interrogatories and the like.
8.Ms McLean-Phillips also made known to Carnival that the result she wished to achieve from the acquisition of the Services was to have a relaxing and pleasurable cruise and experience the cruise in accordance with the itinerary and standards advertised by Carnival including the use of the facilities and amenities provided on board the ship and to be able to visit the various ports (the ‘Desired Result’).
Particulars
Ms McLean-Phillips repeats the particulars to paragraph [7] above.
9.In supplying the Services to Ms McLean-Phillips, Carnival guaranteed to Ms McLean-Phillips that:
(a)the Services supplied would be reasonably fit for the Particular Purpose (Purpose Guarantee);
Particulars
Section 61(1) of the ACL.
(b)the Services might reasonably be expected to achieve the Desired Result (Result Guarantee).
Particulars
Section 61(2) of the ACL.
C.THE LIKELY IMPACT OF ANY OUTBREAK OF THE NOROVIRUS ON THE RELEVANT SERVICES
10.Norovirus is a virus:
(a)that features as its symptoms acute nausea, vomiting (including projectile vomiting), diarrhoea (including uncontrollable and explosive bowel movements) and other constitutional symptoms such as fever, abdominal cramps, headache or muscle ache which can last for many days;
(b)that can be highly debilitating;
(c)that can be fatal and particularly targets the elderly;
(d)that is transmitted by liquid, surfaces or food that has been in contact with bodily fluids, such as faecal matter, of another person and can be breathed in where there are airborne bodily fluids; and
(e)that is highly infectious and was well-known (prior to 5 December 2016) for being susceptible to an outbreak on cruise ships (amongst other public places).
(Norovirus Characteristics).
11.At all material times, Carnival knew, or as an entity holding itself out as a specialist in supplying cruise recreational services (and particularly to a large demographic of relatively elderly people on a ship), employing medical staff and with access to information promulgated by official health authorities, ought to have known:
(a)of the Norovirus Characteristics; and
(b)that if the ship took on board embarking passengers who reported as having the norovirus, or symptoms of the virus, there was a real risk that the virus may spread to such degree as to cause an outbreak;
(c)that if the ship experienced an outbreak, then irrespective of whether or not it was being competently managed, there was a strong likelihood that the recreational experience of Ms McLean-Phillips and the Group Members would be wholly frustrated or diminished by reason of:
(i)the debilitating effects of the illness for those who caught the norovirus;
(ii)the exposure to the unpleasant symptoms of those who had the norovirus;
(iii)the risk of contracting the norovirus;
(iv)the potential restrictions on movement to try and control the spread of the norovirus;
and(v)the potential removal of various facilities and amenities and entertainments to try and control the spread of the norovirus; and
(vi)the potential removal of crew members who had contracted the norovirus or were reassigned to control the spread of the norovirus;
(d)that if the ship were to experience an outbreak, there was a residual risk that the virus could not be eradicated (whatever the steps that were taken by Carnival to decontaminate the ship) and could be contracted by persons embarking on a new journey,
(the ‘Likely Norovirus Impact’).
Particulars
(i) Carnival’s actual knowledge is inferred from:
A. The ship operating at level 3 sanitation procedures (formerly known as ‘red’ level) as a result of the presence norovirus or the risk of the presence of norovirus at some or all points on each of the Relevant Cruises;
B. The knowledge of the medical staff on board having
1.diagnosed passengers with norovirus on each of the Relevant Cruises;
2.monitored the spread of norovirus on board the ship on all journeys;
C. The knowledge of the specialised cleaning staff on board
1.Each of whom had specialised training in cleaning norovirus;
2.Who actually cleaned up norovirus on all journeys;
D. The documents provided by Carnival to the health authorities of Australian governments, including
1.Biosecurity documents (which used to be called ‘Approval to Berth’ documents) listing the number of norovirus diagnosed people on board;
2.Graphs and tables that reported the number of norovirus diagnosed people on board on all journeys;
3.E-mails related to norovirus and its spread aboard the ship on each of the Relevant Cruises;
E. Carnival’s policies and procedures, including:
1.attempting to isolate guests diagnosed with norovirus during the time in which they display symptoms and 24 hours thereafter;
2.attempting to isolate crew diagnosed with norovirus during the time in which they display symptoms and 48 hours thereafter;
3.requiring passengers to fill out a questionnaire titled Gastrointestinal Illness Surveillance System Questionnaire authored by the Centres for Disease Control and Prevention (CDC; a department of the United States of America’s Government);
4.the closure of various amenities during each outbreak by Carnival;
5.the removal of books from the library by Carnival;
6.the use of water-soluble washing bags by cleaners of Carnival, so that the bags did not carry the infection and the infected items of washing did not need to be handled multiple times;
7.the following written policies or procedures for dealing with outbreaks that were in use by Carnival:
i.EMR 2002 – notification and reporting;
ii.EMR 2003 - overall management of outbreaks;
iii.EMR 2004 – communication and information during outbreaks;
iv.EMR 2005 – management of cleaning and sanitizing during outbreaks;
v.EMR2006 - management of food and beverage during outbreaks;
vi.EMR2007 – management of housekeeping and laundry during outbreaks ;
vii.EMR 2008 – medical management during outbreaks;
viii.EMR 2009 – management of technical and environmental operations during outbreaks;
ix.EMR2010 – management of public facilities, revenue and administration areas during outbreaks;
x.EMR 2011 – management of security, gangways, deck areas, and crew drills during outbreaks;
xi.EMR 2012 – management of child activity and youth areas during outbreaks;
xii.EMR 2013 – management of shore excursions and transport during outbreaks ;
xiii.EMR 2014 – management of outbreak turnarounds;
xiv.EMR 2015 – management of continued precautions and the return to routine operations; and
xv.AGE outbreak procedures.
F. the electronic cruise card issued by Carnival to passengers being electronically tagged (in the case of some infected passengers) in such a way as to record the fact that a person was diagnosed as having norovirus and Carnival’s policy of ensuring that person was isolated and otherwise Carnival attempting to track the infected person’s movement using the card;
G. further particulars to be provided after discovery, interrogatories, or subpoenas.
(ii) Carnival’s s constructive knowledge is inferred from:
8.the range of governmental publications on the virus, accessible to Carnival, including (but not limited to):
i.Guidelines for the public health management of gastroenteritis outbreaks due to norovirus or suspected viral agents in Australia (April 2000) published by the Australian Government;
ii.The following publications by the US Government:
·(1) providing information specifically directed to cruise ships ( and
·(2) an Operations manual to assist with the management of outbreaks on cruise ships ( align="left">9.Medical staff employed by Carnival with training and study in relation to norovirus and experience of norovirus;
10.Medical staff and members of the unit known as “Health Services” working for Carnival, or its parent company Holland America Group, having such knowledge by reason of their training or experience, tailored to service for their employer in whose business operations, outbreaks of norovirus were a risk.
D.STEPS WHICH SHOULD HAVE BEEN TAKEN IF THE NOROVIRUS WAS IDENTIFIED ON THE RELEVANT SERVICES
12.In addressing the Likely Norovirus Impact, Carnival should have, but did not, take at least the following steps.
13.Firstly, Carnival should have informed Ms McLean-Phillips and the Group Members prior to their acquisition of the Services and the Group Member Services of the:
(a)Norovirus Characteristics;
(b)the Likely Norovirus Impact; and,
(c)the potential inability of Carnival to fulfil their guarantee of the Particular Purpose, the Group Member Particular Purpose, the Desired Result and the Group Member Desired Result.
14.Second, Carnival should have informed Ms McLean-Phillips and the Group Members once it was aware that a passenger or crew member had contracted the norovirus:
(a)that a passenger or crew member had contracted the norovirus;
(b)of the Norovirus Characteristics;
(c)of the risk of Ms McLean-Phillips, her travelling companions the Group Members and their travelling companions contracting the norovirus; and
(d)of the Likely Norovirus Impact upon the Services and Group Member Services.
15.Third, Carnival should have informed the Group Members once it was aware that a passenger or crew member had contracted the norovirus on the immediately preceding cruise on the Sun Princess:
(a)that a passenger or crew member had contracted the norovirus on the previous cruise;
(b)of the Norovirus Characteristics;
(c)of the risk of the Group Members, and their travelling companions, contracting the norovirus; and
(d)of the Likely Norovirus Impact upon the Group Member Services.
16.Fourth, in the circumstances of paragraph [14] and [15], Carnival should have offered Ms McLean-Phillips and the Group Members the opportunity not to proceed with their journey and to provide a refund and/or alternative opportunities for a subsequent journey (the ‘Alternatives’).
Particulars
Condition 28 of the Princess Cruises Passage Contract (S701).
17.Fifth, if Carnival did not offer the Alternatives, Carnival should have implemented effective cleaning protocols including, if necessary, disembarking all the passengers, removing those infected by the Norovirus from the Services and changing the cruise ship to be used to provide the Services (‘New Cruise Ship').
18.Sixth, Carnival should have competently implemented its policies and procedures to address the spread of the Norovirus (‘Competent Implementation’).
Particulars
Carnival’s relevant policies and procedures, included:
(a)requiring passengers to fill out a questionnaire titled Gastrointestinal Illness Surveillance System Questionnaire authored by the Centres for Disease Control and Prevention (CDC; a department of the United States of America’s Government);
(b)the use of water-soluble washing bags by cleaners of Carnival, so that the bags did not carry the infection and the infected items of washing did not need to be handled multiple times;
(c)EMR 2002 – notification and reporting;
(d)EMR 2003 - overall management of outbreaks;
(e)EMR 2004 – communication and information during outbreaks;
(f)EMR 2005 – management of cleaning and sanitizing during outbreaks;
(g)EMR2006 - management of food and beverage during outbreaks;
(h)EMR2007 – management of housekeeping and laundry during outbreaks ;
(i)EMR 2008 – medical management during outbreaks;
(j)EMR 2009 – management of technical and environmental operations during outbreaks;
(k)EMR2010 – management of public facilities, revenue and administration areas during outbreaks
(l)EMR 2011 – management of security, gangways, deck areas, and crew drills during outbreaks
(m)EMR 2012 – management of child activity and youth areas during outbreaks
(n)EMR 2013 – management of shore excursions and transport during outbreaks;
(o)EMR 2014 – management of outbreak turnarounds;
(p)EMR 2015 – management of continued precautions and the return to routine operations; and
(q)AGE outbreak procedures;
.(r)further particulars to be provided after discovery, interrogatories, or subpoenas.
E.THE CONTRAVENING CONDUCT
19.Ms McLean-Phillips booked the Services to enjoy a relaxing and pleasurable cruise holiday with her family in the lead up to Christmas in 2016.
Particulars
Ms Vivienne Trudgeon, with whom Ms McLean-Phillips shared an Interior Stateroom, is her older sister. Mr Ian Partington, who was also on the cruise with his wife Kaye, is her older brother.
20.Prior to embarkation of the passengers, Carnival did not take the steps outlined in paragraph [13].
21.During November 2016, Ms McLean-Phillips was very excited about the Services and the entertainment on offer during the cruise.
Particulars
Email exchange between Ms McLean-Phillips and Ms Trudgeon dated 16 and 22 November 2022.
22.On 5 December 2016, Ms McLean-Phillips boarded the First Cruise.
23.On 6 December 2016, at the first port in Albany, Western Australia:
(a)Ms McLean-Phillips observed three or four ambulances waiting for passengers to disembark the Sun Princess and began to feel worried; and
(b)approximately 300 further passengers embarked onto the First Cruise.
24.Of the 300 passengers picked up from Albany, two of them reported to relevant persons employed by Carnival that they were ill with “gastro” (ie, the norovirus).
25.As at 7 December 2016 and thereafter, Carnival:
(a)did not take steps outlined in paragraph [14] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship;
(d)did not undertake Competent Implementation.
26.By the end of the First Cruise, about 339 passengers and 13 crew had directly contracted the norovirus on board the cruise.
27.On or around 14 December 2016, Ms Trudgeon, while on board the cruise began to experience symptoms consistent with the norovirus.
Particulars
(i) Sudden and uncontrollable diarrhoea.
(ii) Vomiting.
28.Ms McLean-Phillips observed during that first night that Ms Trudgeon become pale, had difficulties walking by herself and experienced sudden and uncontrollable diarrhoea and vomiting on the bed, the carpeted floor and in her clothes.
29.Further during that first night, Ms McLean-Phillips called the medical centre and crew a number of times for assistance to:
(a)get a crew member to help her carry Ms Trudgeon into the shower as she was near collapse;
(b)provide her with a set of disposable gloves; and
(c)to clean and sanitise their room.
30.Ms McLean-Phillips had to call three or four times before a crew member attended to clean their stateroom. At this time, Ms McLean-Phillips was provided with a set of disposable gloves but was not provided any assistance to carry Ms Trudgeon into the shower or to care for her generally.
31.When Ms McLean-Phillips carried Ms Trudgeon into the shower by herself, diarrhoea fell on several areas of the carpeted floor between the bedroom and the bathroom, and she observed diarrhoea run down Ms Trudgeon’s leg onto the carpet.
32.After Ms Trudgeon’s shower, Ms McLean Phillips assisted her out of the bathroom and back into the bedroom to get dressed but another episode of diarrhoea and vomiting began again which left her clothes soiled.
33.Ms Trudgeon was unwell for approximately five days during the cruise and was told to isolate in her stateroom for five days while she was symptomatic which meant that during this period, Ms Trudgeon was not allowed to leave the stateroom, but Ms McLean-Phillips was.
34.During the five days that Ms Trudgeon was ill, Ms McLean-Phillips cared for her by helping her:
(a)walk between the bedroom and the bathroom;
(b)get dressed;
(c)deal with the ship’s crew on Ms Trudgeon’s behalf;
(d)change the linen on Ms Trudgeon’s bed; and
(e)encourage Ms Trudgeon to eat and drink.
35.During Ms Trudgeon’s five day isolation:
(a)Ms McLean-Phillips was also not offered any alternative accommodation and continued to share a stateroom with Ms Trudgeon; and
(b)Ms McLean-Phillips had to call the crew for additional cleaning and sanitation due to the presence of vomit and diarrhoea in the stateroom.
36.After the stateroom was cleaned by Sun Princess crew on or about 14 December and following subsequent cleaning of her room on the days that followed, Ms McLean-Phillips continued to smell vomit and diarrhea in the room.
37.On 17 December 2016, Ms McLean-Phillips fell ill with norovirus.
38.Ms McLean-Phillips reported her illness to crew at the medical centre and was advised to remain in her stateroom and was not provided with any medication to treat the symptoms of norovirus.
39.Ms McLean-Phillips experienced the same symptoms as Ms Trudgeon and spent most of the night seated on the toilet with her head over the basin while she experienced simultaneous bouts of vomit and diarrhoea.
Particulars
See particulars to paragraph [24] above.
40.On 18 December 2016, Ms McLean-Phillips was still very unwell and despite requesting a wheelchair was not provided with the necessary assistance by crew to disembark from the Sun Princess to the shore and had to rely upon other passengers to assist.
Particulars
The crew did not provide Ms McLean-Phillips with a luggage trolley, wheelchair, or bucket. Ms McLean-Phillips was having difficulty walking. While a crew member assisted with carrying some of her luggage while on the ship, a fellow passenger had to assist Ms McLean Phillips to the shore.
41.During the cruise and prior to 14 December 2016, many of the facilities on the Sun Princess were not available to Ms McLean-Phillips and other passengers as a result of the steps Carnival took to manage the outbreak of the norovirus.
Particulars
(i) At least the following facilities were unavailable:
A. the library;
B. the grand casino on deck 8;
C. the hot tub; and
D. the art gallery.
(ii) Further particulars may be provided after discovery, interrogatories and the like.
42.Due to Ms Trudgeon contracting the norovirus on 14 December 2016, Ms McLean-Phillips was not able to enjoy the Services including the facilities and activities on board the Sun Princess and the activities ashore, which she had planned to attend with Ms Trudgeon.
Particulars
(i) Ms McLean-Phillips spent extended periods of time in her Stateroom caring for Ms Trudgeon.
(ii) Ms McLean-Philips and Ms Trudgeon had planned to attend:
A. dinners and evening entertainment;
B. day activities; and
C. the formal ball on the Sun Princess.
43.If Ms McLean-Phillips had known of the Norovirus Characteristics and the Norovirus Likely Impact upon the Services, she would not have acquired the Services from Carnival.
F.CONTRAVENTIONS OF THE ACL
44.In supplying the Services, Carnival exercised control over every aspect of the Services including:
(a)the measures to be taken to suppress or manage any norovirus outbreak, including potentially significantly limiting passenger movements and access to amenities and facilities and entertainments;
(b)the manner in which the Services were supplied; and
(c)whether to cancel, delay or vary the Services.
45.Ms McLean-Phillips and Ms Trudgeon contracted the norovirus on board the Sun Princess in the course of being supplied the Services in the circumstances pleaded above.
46.By reason of the outbreak of the norovirus on the First Cruise, and in the circumstances of paragraphs [25
1] to [4339] and the failure to take the steps at paragraphs [13], [14] and [16] to [18], a substantial proportion of the Services were not able to be enjoyed by Ms McLean-Phillips (including by reason by her own illness and that of Ms Trudgen and the withdrawal of amenities, facilities and entertainments) and she did not, for a substantial proportion of the itinerary, have a relaxing and pleasurable cruise.Particulars
(i) Through the itinerary and standards advertised by Carnival, the Services included:
A. a voyage to “relax and unwind” and “come back new”;
B. attentive service;
C. special presentations such as “guest lectures, special music and dance”;
D. countless opportunities to enjoy your day and rejuvenate your body, mind and spirit”;
E. everything needed to “reconnect and renew”;
F. a “great night’s sleep” in the “Princess Luxury Bed” with “luxurious linens”;
G. on board entertainment such as “high-tech musicals to comedians and live music” with every evening on the Princess Ship “coming alive”;
H. access to all amenities and services included in the ticket price;
I. a state room to relax and to “experience a sleep sanctuary”; and
J. all dining, onboard entertainment, activities and much more;
K. stops at ports listed on the itinerary and “award winning excursions” on shore at the various ports.
(ii) Ms McLean-Phillips did not, for a substantial proportion of the itinerary, have a relaxing and pleasurable cruise, because:
A. she was unable to enjoy all the entertainment scheduled to be on board, such as special presentations, musicals, comedians, live music and more due to such events being closed or cancelled due to the norovirus being on board or due to needing to care for Ms Trudgen;
B. she was unable to make use of all the amenities on board that were included in her ticket price, including dining options and various activities, due to the amenities being closed due to the norovirus being on board and due to needing to care for Ms Trudgen;
C. did not receive attentive service;
D. she did not disembark at ports or attend on shore excursions when she, or Ms Trudgen, were unwell.
E. she was unable to relax in her stateroom due to:
i.needing to take care of Ms Trudgen, who was suffering from the symptoms of the norovirus;
ii.then herself suffering from the symptoms of the norovirus, which included, uncontrolled vomiting and explosive diarrhoea; and
iii.the room being contaminated with vomit and faecal matter and emitting a smell of vomit and faeces.
F. she was unable to relax and unwind or to rejuvenate her body, mind and spirit, due to:
i.being on a confined ship with people suffering from the norovirus and fearing she may also contract the norovirus;
ii.Ms Trudgen contracting the norovirus and experiencing the symptoms of the norovirus;
iii.needing to care for Ms Trudgen, including cleaning up her vomit and diarrhoea;
iv.contracting the norovirus and suffering from the symptoms of the norovirus, which included, uncontrolled vomiting and explosive diarrhoea;
v.observing other passengers suffering from the norovirus;
G. for the reasons set out at (A) to (F) above, did not come back new.
(ii) Further particulars regarding what aspects of the Services were not provide, or only partially provided, may be provided after discovery, interrogatories and the like.
47.In the premises of paragraph [46
3]:(b)the Services were not reasonably fit for the Particular Purpose because the norovirus outbreak did not have only a minor or relatively insignificant impact upon the Services but fundamentally affected Ms McLean-Phillips ability to have a relaxing and pleasurable cruise and to use the facilities and amenities provided on board the ship and to be able to visit the various ports for a substantial proportion of the itinerary; and/or
(c)the Services were not of such nature and quality as might reasonably be expected to achieve the Desired Result because, once the norovirus outbreak occurred, its impact was not minor or relatively insignificant but fundamentally affected Ms McLean-Phillips ability to have a relaxing and pleasurable cruise and to use the facilities and amenities provided on board the ship and to be able to visit the various ports for a substantial proportion of the itinerary.
48.In the premises of paragraph [47
4], Carnival contravened:(a)the Purpose Guarantee; and/or
(b)the Result Guarantee.
49.Carnival’s failure to comply with the Purpose Guarantee and/or the Result Guarantee:
(a)could not be remedied, or cannot be remedied, within the meaning of section 267(3) of the ACL; and/or
(b)were a ‘major failure’ within the meaning of section 268 of the ACL because:
(i) the Services supplied by Carnival would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, including Ms McLean-Phillips; and
(ii) the Purpose and Result failures could not easily and within a reasonable time be remedied to make the Services fit for the Purpose to achieve the Result.
50.Having regard to the control exercised by Carnival over the Services and the Likely Norovirus Impact upon the Services, it was reasonably foreseeable that Carnival’s failure to comply with the Purpose Guarantee and/or the Result Guarantee would result in Ms McLean-Phillips suffering loss or damage as a result of such a failure.
51.Pursuant to section 267(3) of the ACL, Ms McLean-Phillips is entitled to recover compensation for the reduction in value of the Services below the price paid for the Services.
Particulars
Ms McLean-Phillips paid $1,609.23 for the Services and contends that she lost the entire value of the Services and is entitled to a full refund.
52.Pursuant to section 267(4) of the ACL, Ms McLean-Phillips is entitled to recover for any loss or damage suffered as a result of the failures to comply with the Purpose Guarantee and/or Result Guarantee which was reasonably foreseeable.
Particulars
Such losses include inconvenience, distress and disappointment.
G.CLAIMS OF GROUP MEMBERS
53.Group Members entered into agreements with Carnival for the supply of recreational cruise services provided by Carnival or were passengers known to Carnival to whom it would supply recreational cruise services (the ‘Group Member Services’).
54.The Group Members acquired the Group Member Services by going on the Relevant Cruises.
Particulars
The Group Member Services were accepted by the Group Members by their embarking on the Relevant Cruises.
55.The Group Member Services acquired by the Group Members were:
(a)‘services’ within the meaning of section 2 of the ACL.
Particulars
Rights, benefits, privileges or facilities were provided, or were to be provided, by Carnival to the Group Members to arrange for and facilitate the cruise for the use, amusement, entertainment, recreation or instruction of the Group Members. Without limitation, the services included Carnival arranging for the tours and monitoring and assessing (and therefore communicating with the Group Members) whether the tour itineraries could proceed in accordance with the existing arrangements or should be varied, cancelled or delayed. The services thus also included Carnival providing information to passengers, before boarding the cruise and during the cruise, about events and circumstances affecting or likely to affect passengers’ enjoyment of the cruise.
(b)supplied in trade or commerce within the meaning of section 4 of the Competition and Consumer Act 2010 (Cth).
56.The Group Members made known to Carnival that the particular purpose for the acquisition of the Services was to have a relaxing and enjoyable cruise and experience the selected cruise in accordance with the itinerary and standards advertised by Carnival including the use of the facilities and amenities provided on board the ship and to be able to visit the various ports (the ‘Group Member Particular Purpose’).
Particulars
(i) The Group Member Particular Purpose was impliedly made known to Carnival by:
A. the nature of the relationship between Group Members on the one hand (as consumers of the Group Member Services) and Carnival (as the supplier of the Group Member Services);
B. the purpose of the transaction that Group Members entered into with Carnival;
C. the booking of and payment for the Group Member Services.
(ii) The itinerary and standards for the cruises were set out in the information provided by Carnival to the travel agents used by the Group Members and the information generally provided by Carnival on its website at and in its “2016-2017 Cruise Atlas”.
(iii) Further particulars may be provided after discovery, interrogatories and the like.
57.Group Members also made known to Carnival that the results they wished to achieve from the acquisition of the Group Member Services was to have a relaxing and pleasurable cruise and experience the cruise in accordance with the itinerary and standards advertised by Carnival including the use of the facilities and amenities provided on board the ship and to be able to visit the various ports (the ‘Group Member Desired Result’).
Particulars
Group Members repeat the particulars to paragraph [56] above.
58.In supplying the Group Member Services to Group Members, Carnival guaranteed to the Group Members that:
(a)the services supplied would be reasonably fit for the Group Member Particular Purpose (Group Member Purpose Guarantee);
Particulars
Section 61(1) of the ACL.
(b)the services might reasonably be expected to achieve the Group Member Desired Result (Group Member Result Guarantee).
Particulars
Section 61(2) of the ACL.
59.In supplying the Group Member Services, Carnival exercised control over every aspect of the Group Member Services including:
(a)the measures to be taken to suppress or manage any norovirus outbreak;
(b)the manner in which the Group Member Services were supplied; and
(c)whether to cancel, delay or vary the Group Member Services.
60.Prior to embarkation on the Second Cruise, it was known that there had been an outbreak of the norovirus on the First Cruise.
61.Further, on or about 18 December 2016, upon embarkation of the Second Cruise, at least three passengers reported to the relevant persons employed by Carnival that they were ill with “gastro” (ie, the norovirus).
62.As at 18 December 2016 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
(e).
63.Prior to embarkation on the Third Cruise, it was known that there had been an outbreak of the norovirus on the Second Cruise.
64.As at 21 December 2016 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
65.Prior to embarkation on the Fourth Cruise, it was known that there had been an outbreak of the norovirus on the Third Cruise.
66.As at 5 January 2017 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
67.Prior to embarkation on the Fifth Cruise, it was known that there had been an outbreak of the norovirus on the Fourth Cruise.
68.As at 8 January 2017 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
69.Prior to embarkation on the Sixth Cruise, it was known that there had been an outbreak of the norovirus on the Fifth Cruise.
70.As at 22 January 2017 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives.
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
71.Prior to embarkation on the Seventh Cruise, it was known that there had been an outbreak of the norovirus on the Sixth Cruise.
72.As at 2 February 2017 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
73.Prior to embarkation on the Eighth Cruise, it was known that there had been an outbreak of the norovirus on the Seventh Cruise.
74.As at 16 February 2017 and thereafter, Carnival:
(a)did not take steps outlined in paragraphs [14] and [15] above; and
(b)did not offer the Alternatives;
(c)did not use a New Cruise Ship
(d)did not undertake Competent Implementation.
75.During the provision of the Group Member Services:
(a)some or many of the Group Members on the Sun Princess became sick with the norovirus in the course of being supplied with the Group Member Services;
(b)some of the Group Members were companions to those passengers who became sick with the norovirus in the course of being supplied with the Group Member Services; and
(c)some of the Group Members were passengers who, not contracting the norovirus themselves, were otherwise detrimentally affected by the norovirus outbreak on the ship through:
(i)having access to certain common areas on the ship, and certain amenities closed off to them;
Particulars
The nature and extent of restrictions upon access to amenities is a matter within the respondent’s knowledge. Further particulars are intended to be supplied after discovery.
(ii)witnessing the symptoms of, or smelling the stench from vomiting and odour associated with the norovirus in those who contracted the virus in various parts of the ship;
(iii)regularly being reminded of the existence of the outbreak on board the ship, by being advised to take precautions, such as regularly washing hands before meals, and to refrain from touching; and
(iv)constantly being under the apprehension that they may also contract the virus and suffer the symptoms of that virus.
76.If the Group Members had known of the Norovirus Characteristics and the Norovirus Likely Impact upon the Group Member Services, they would not have acquired the Group Member Services from Carnival.
77.As a result of the outbreak of the norovirus on the Sun Princess during the Group Member Services, and in the circumstances of the failure to take the steps at paragraphs [13] to [18
6], a substantial proportion of the Group Member Services were not able to be enjoyed by Group Members (including by reason of their illness, the illness of any person they were travelling with and the withdrawal of amenities) and they did not, for a substantial proportion of the itinerary, have a relaxing and pleasurable cruise.Particulars
(i) Through the itinerary and standards advertised by Carnival, the Group Member Services included:
A. a voyage to “relax and unwind” and “come back new”;
B. attentive service;
C. “special presentations” such as “guest lectures, special music and dance”;
D. “countless opportunities to enjoy your day and rejuvenate your body, mind and spirit”;
E. everything needed to “reconnect and renew”;
F. a “great night’s sleep” in the “Princess Luxury Bed” with “luxurious linens”;
G. on board entertainment such as “high-tech musicals to comedians and live music” with every evening on the Princess Ship “coming alive”;
H. access to all amenities and services included in the ticket price;
I. stops at ports listed on the itinerary and “award winning excursions” on shore at the various ports;
J. a state room to relax and to experience a “sleep sanctuary”; and
K. all dining, onboard entertainment, activities and much more.
(ii) Group Members did not, for a substantial proportion of the itinerary, have a relaxing and pleasurable cruise, because:
A. they were unable to enjoy all the entertainment scheduled to be on board, such as special presentations, musicals, comedians, live music and more due to such events being closed or cancelled due to the norovirus being on board, due to needing to care for family or friends that had contracted the norovirus or due to fear of contracting the norovirus in public areas;
B. they were unable to make use of all the amenities on board that were included in their ticket price, including dining options and various activities, due to the amenities being closed due to the norovirus being on board, due to needing to care for family or friends that had contracted the norovirus or due to fear of contracting the norovirus in public areas;
C. they did not receive attentive service;
D. they did not disembark at ports, or attend on shore excursions, when they were unwell or when their travelling companions were unwell;
E. they were unable to relax in their stateroom due to:
i.suffering from the symptoms of the Norovirus, which included, uncontrolled vomiting and explosive diarrhoea;
ii.needing to take care of family or friends, who were also suffering from the symptoms of the Norovirus;
iii.the room being contaminated with vomit and faecal matter and emitting a smell of vomit and faeces; or
iv.fears that they may contract the Norovirus in public areas.
F. they were unable to relax and unwind or to rejuvenate their body, mind and spirit, due to:
i.being on a confined ship with people suffering from the norovirus and fearing they may also contract the norovirus;
ii.contracting the Norovirus and suffering from the symptoms of the Norovirus, which included, uncontrolled vomiting and explosive diarrhoea;
iii.having family or friends contract the norovirus and experiencing the symptoms of the norovirus;
iv.needing to care for family or friends who contracted the norovirus, including needing to clean up vomit and diarrhoea; or
v.observing other passengers suffering from the norovirus;
G. for the reasons set out at (A) to (F) above, did not come back new.
78.In the premises set out in paragraph [77
4] above:(a)the Group Member Services were not reasonably fit for the Group Member Particular Purpose because the norovirus outbreak did not have only a minor or relatively insignificant impact upon the Group Member Services but fundamentally affected the Group Member’s ability to have a relaxing and pleasurable cruise for a substantial proportion of the itinerary; and/or
(b)the Group Member Services were not of such nature and quality as might reasonably be expected to achieve the Group Member Desired Result because, once the outbreak of the norovirus occurred, its impact was not minor or relatively insignificant but fundamentally affected the Group Member’s ability to have a relaxing and pleasurable cruise for a substantial proportion of the itinerary.
79.In the premises of paragraph [78
5], Carnival contravened:(a)the Group Member Purpose Guarantee; and/or
(b)the Group Member Result Guarantee.
80.Carnival’s failure to comply with the Group Member Purpose Guarantee and/or the Group Member Result Guarantee:
(a)could not be remedied, or cannot be remedied, within the meaning of section 267(3) of the ACL; and
(b)were a ‘major failure’ within the meaning of section 268 of the ACL because:
(i)the Group Member Services supplied by Carnival would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, including the Group Members; and
(ii)the Group Member Particular Purpose and Group Member Desired Result failures cannot easily and within a reasonable time be remedied to make the Group Member Services fit for the Group Member Particular Purpose and/or to achieve the Group Member Desired Result.
81.Having regard to the control exercised by Carnival over the Services and the Likely Norovirus Impact upon the Group Member Services, it was reasonably foreseeable that Carnival’s failure to comply with the Group Member Purpose Guarantee and/or the Group Member Result Guarantee would result in the Group Members suffering loss or damage as a result of such a failure.
82.Pursuant to section 267(3) of the ACL, Group Members are entitled to recover compensation for the reduction in value of the Group Member Services below the price paid for the Group Member Services.
Particulars
The Group Members also seek refunds of the amounts they paid for their cruises.
83.Pursuant to section 267(4) of the ACL, Group Members are entitled to recover damages for loss suffered as a result of the failures to comply with the Group Member Purpose Guarantee and/or Group Member Result Guarantee which was reasonably foreseeable.
Particulars
Such losses include inconvenience, distress and disappointment, consequential losses arising from wasting expenditure to travel to and from the cruise.
Date:
12 May……August 2023
Signed by Vicky Antzoulatos
Lawyer for the ApplicantThis pleading was prepared by Rachel Francois and Michael Pruscino of counsel, and Vicky Antzoulatos, lawyer.
Certificate of lawyer
I, Vicky Antzoulatos, certify to the Court that, in relation to the statement of claim filed on behalf of the Applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading.
Date:
Signed by Vicky Antzoulatos
Lawyer for the ApplicantREASONS FOR JUDGMENT
JACKMAN J
In McLean-Phillips v Carnival plc t/as P&O Cruises Australia [2023] FCA 328 (the Initial Judgment), I struck out the statement of claim and granted leave to the applicant to file and serve an amended statement of claim. The applicant duly filed an amended statement of claim on 12 May 2023, and on 23 June 2023 the respondent filed an interlocutory application seeking summary judgment against the applicant pursuant to r 26.01(1) of the Federal Court Rules2011 (Cth) (Rules), or alternatively an order that the amended statement of claim be struck out pursuant to r 16.21(1) of the Rules. The interlocutory application also sought security for costs, but that matter was disposed of consensually during argument before me.
On 28 July 2023, the applicant sent to the respondent a proposed further amended statement of claim (the FASC) and indicated in her written submissions dated 14 August 2023 that the applicant sought leave to file the FASC. Accordingly, the argument before me focused on the FASC, rather than the amended statement of claim dated 12 May 2023.
I indicated to the parties at the conclusion of the oral argument that I would grant leave to the applicant to file the FASC. The form of that pleading can be found as Annexure A to the orders which I have made, and I have not reproduced that pleading in these reasons. The following are my reasons for granting leave to file the FASC.
In the Initial Judgment, I expressed the following conclusions in relation to the operation of ss 61, 267 and 268 of the Australian Consumer Law (ACL), being Sch 2 to the Competition and Consumer Act 2010 (Cth). First, in assessing whether the guarantee in s 61(1) of the ACL (that services are reasonably fit for a purpose made known by the consumer) has been complied with, the analysis must deal with the services actually provided, and whether they were in fact reasonably fit for the particular purpose: [11]. The guarantee in s 61(2) of the ACL (that services are of such a nature, and quality, state or condition, that they might reasonably be expected to achieve the result made known by the consumer) focuses attention on the nature and quality, state or condition of the services actually provided, and tests those matters against a standard of reasonableness in achieving the desired result; a failure to comply with that guarantee must therefore be assessed according to the nature and quality, state or condition of the services actually provided: [12]. In order to obtain a remedy under s 267 of the ACL, the requirement in s 267(1)(b) (that the guarantees in s 61 are not complied with) involves an analysis directed to the services actually provided, and a shortcoming or deficiency in those services. It cannot be sufficient to say that a cruise ship operator promised a relaxing and enjoyable holiday, but the claimant has in fact had a miserable and stressful time; there would have to be some link between an identified deficiency in the services provided and the lack of relaxation and enjoyment which resulted from that: [13]. In order to establish that a failure to comply with the guarantees was a major failure within the meaning of s 268 by reason of any of ss 268(1)(a), (c) or (d), the claimant must identify some deficiency or shortcoming in the supply of the relevant services: [14]. In order to claim compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services pursuant to s 267(3), the claimant must allege material facts as to how the services that were actually supplied to the applicant were of a value less than that which was paid by the applicant: [23]. In order to claim damages for loss and damage suffered “because of” the supplier’s failure to comply with a relevant guarantee, and to establish that such loss or damage was reasonably foreseeable as a result of the failure, as required by s 267(4), the claimant must plead a causal link between the relevant breach of the statutory guarantee and the loss and damage, which in turn requires that there be specific identification of the deficiency or shortcoming in the services actually provided so that the elements of causation and reasonable foreseeability can be analysed by reference to the specific failure which is complained of.
In the FASC, the applicant has accordingly sought to plead the services actually provided and required to be provided, the deficiencies in those services, and a causal link between those deficiencies and the claimed loss. As a matter of general principle, the applicant draws attention to the approval by Jagot and Murphy JJ in Crowley v Worley Limited [2022] FCAFC 33; (2022) 400 ALR 452 at [70] of the following observation of Beaumont J in Pancontinental Mining Limited v Posgold Investments Pty Ltd [1994] FCA 131; (1994) 121 ALR 405 at 414 that:
… under the modern system of pleading, the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action. Rather, the question is whether it would be open to the applicant upon the pleadings to prove facts at the trial which would constitute a cause of action (see Mutual Life & Citizens’ Assurance Company Limited v Evatt (1970) 122 CLR 628 at 631).
The respondent does not challenge that statement of principle.
The respondent in its oral submissions began by criticising paragraphs 17 and 18 of the FASC, which make allegations concerning the implementation of effective cleaning protocols (including, if necessary, disembarking all passengers and changing the cruise ship to a new cruise ship) and the implementation of the respondent’s own policies and procedures to address the spread of the norovirus. First, the respondent submits that there is no reasonable prospect of the applicant establishing that the respondent contravened the statutory guarantees in s 61 by failing to transfer all the passengers on each cruise to a new cruise ship. This seems to me to raise questions to be resolved by reference to the evidence to be led at the trial, and I am not prepared to say in the abstract that the applicant has no reasonable prospect of successfully prosecuting that part of the proceeding, to adopt the language of s 31A(2)(b) of the Federal Court of Australia Act 1976 (Cth).
Second, the respondent submits that the qualification in paragraph 17, that a new cruise ship should be substituted “if necessary”, is confusing and ambiguous. I do not accept that criticism in the context of the paragraph, which concerns the implementation of effective cleaning controls, of which the substitution of a new vessel is alleged to be one control available, and in my view the circumstances (if any) in which any such substitution would have been necessary is a matter for evidence.
Third, the respondent submits that the applicant should not be permitted to plead in conclusory terms in paragraph 25(d) that the respondent did not competently implement the 17 policies and procedures (which are particularised in paragraph 18) to address the spread of the norovirus, and the applicant must identify specific steps and link those to the specific requirements of the relevant policies and procedures in sufficient detail to assess whether the respondent complied with its policies and procedures. The respondent draws attention to the applicant’s concession in the past that she does not possess copies of the relevant policies and procedures set out in the particulars to paragraph 18. However, the case which the applicant seeks to propound, as I understand it, is based on an alleged inference of a broad kind to the effect that if proper processes had been implemented, then there would either have been no outbreak of the norovirus, or any such outbreak would have been contained. Whether that inference is open and should be drawn is a matter to be assessed on the balance of probabilities at the trial on the basis of the evidence adduced.
Fourth, the respondent submits that the allegations of causation in paragraph 46 of the FASC are rolled up in a way which does not make it clear whether all the matters referred to in that paragraph are relied on in the aggregate, or individually, or in various combinations. The same criticism is made of paragraph 77, in relation to the claims by Group Members. In my view, paragraphs 46 and 77 are sufficiently widely expressed to embrace all of those ways of the applicant putting her case, and the applicant is not required to establish the role of each of the alleged deficiencies in the alleged failure to comply with the relevant consumer guarantee.
Fifth, the respondent submits that it is not pleaded that the failure to implement effective cleaning protocols or implement the respondent’s own policies and procedures caused the norovirus outbreak, or contributed to its severity, or caused the applicant or her sister or specific Group Members to fall ill, or in some other way caused or contributed to the applicant’s failure to have an enjoyable voyage. In my view, those measures are sufficiently pleaded in paragraphs 46 and 77 as means to control the outbreak of the virus, and those paragraphs convey with sufficient clarity a case based on the proposition that if those steps had been taken then more effective control and containment of the norovirus would have occurred.
The respondent then turned to the allegations as to failures to warn by the respondent set out in paragraphs 13, 14 and 15 of the FASC. As a general matter, the respondent says that there is no allegation that the failures to warn constituted the breach of any separate legal or equitable duty, but correctly observes that the services alleged in paragraph 6(a) included the provision of information to passengers, both before boarding the cruise and during the cruise, about circumstances likely to affect passengers’ enjoyment of the cruise. The respondent submits (by reference to paragraph 5 of the FASC) that the applicant acquired the alleged services by going on the cruise, and therefore the services could not extend to the failure to provide information prior to the applicant boarding the vessel. In my view, that criticism misunderstands the pleading, in that paragraph 5 merely identifies one aspect of the conduct of the applicant amounting to the “acquisition” of services, but does not define the services or when they were (or were not, as the case may be) provided. Paragraphs 13 and 20 of the FASC make it clear that the applicant alleges that there was a deficiency in the services by reason of a failure to provide certain information prior to embarkation.
Further, the respondent submits that the fundamental problem with the failure to warn case is that no warning could have mitigated the outbreak or its effect on the applicant’s enjoyment of the voyage. The particulars provided in correspondence by the applicant (in relation to what is now paragraph 46 of the FASC) include the proposition that the relevant counterfactual is that if the applicant had been informed of the matters in paragraphs 13 and 14, or given the alternatives in paragraph 16, the applicant would not have taken this particular cruise and may have taken a different cruise which was capable of complying with the statutory guarantees with all the facilities available, or taken her refund. (It appears that no request for particulars was made in respect of paragraph 77, which deals with the claims by Group Members in similar terms to paragraph 46 pertaining to the applicant.) If those propositions are made good at the trial, then the applicant may well establish a course of decision-making which would have avoided the unpleasant experience of the cruise which the applicant actually went on. As to the Group Members, I assume that a similar counterfactual will be sought to be established by them at the stage when their individual cases are heard and determined.
The respondent then makes a further 8 criticisms of the failure to warn case as follows.
First, the respondent relies on the alleged inconsistency between paragraph 5 (as to the acquisition of the services upon the applicant embarking on the voyage) and the allegation in paragraphs 13 and 20 of a failure to give a warning before embarkation. In my view, there is no inconsistency, and the pleading clearly alleges that the services included the provision of relevant information prior to embarkation. [Is this covered at [11] above?]
Second, the respondent submits that the allegation that the services included warning passengers of the likely effect of a norovirus outbreak cannot be made good absent a pleading that an outbreak was likely. However, it is alleged in paragraph 11(b) that there was “a real risk” of the virus spreading so as to cause an outbreak, and in paragraph 10(e) that norovirus was well-known for being susceptible to an outbreak on cruise ships. It will be a matter for evidence whether a warning was required (and if so, what warning) in the particular circumstances. Whether, as the respondent submits, a warning of the kind alleged would be so lengthy and detailed as to rob it of any utility is also a matter which depends on the evidence to be adduced at the trial.
Third, the respondent submits that even if the applicant were to allege that a norovirus outbreak on the voyage was likely, this would still merely be an ordinary risk inherent in activities where people congregate and there is no prospect the Court would find that any required warning would include detailing aspects of the norovirus. That is also a matter for evidence.
Fourth, the respondent submits that the allegation that giving the alleged warnings would have caused the applicant and Group Members not to proceed with their voyages is not tenable, because it is said that the implicit assumption is that no one who goes on a cruise is aware of the risks allegedly presented by norovirus. I do not see how those submissions could be accepted on a summary dismissal or strike-out application, and will depend on the evidence given at the trial.
Fifth, the respondent submits that the allegation that warnings should have been given once the voyage was under way and norovirus cases occurred, and the related allegation in paragraph 16 that the respondent should have offered the applicant and Group Members the opportunity not to proceed with their voyage upon identifying a case of norovirus on board, are not tenable, and there is no prospect the Court would find that the services contravened s 61 of the ACL unless the cruise operator offered every passenger the right to cancel their voyage and a full refund upon a single crew member or passenger contracting the norovirus. The respondent also submits that permitting or requiring passengers to disembark at the next scheduled stop would not have been feasible or conducive to an improved experience. These submissions also depend upon factual matters to be determined at the trial, and may well depend on evidence as to the degree of contagion and the severity of symptoms of the norovirus.
Sixth, the respondent submits that the allegation in paragraph 16 of the FASC that the respondent should have offered alternative opportunities for a subsequent journey is inconsistent with the allegations in paragraphs 43 and 76 that no passenger would travel on a cruise once told of the risk of norovirus. However, paragraphs 43 and 76 are directed to the particular cruises which the applicant and Group Members had booked to travel on, not cruises at some unspecified time in the future. The issue depends on evidence to be adduced at the trial.
Seventh, the respondent submits that even if the applicant establishes that the services included providing the pleaded warning about norovirus, causation will not be established because the applicant’s inability to enjoy her voyage was caused by her and her sister falling ill, not by the failure to give a warning. However, there is a pleading at paragraph 43, supported by paragraph 37 of the particulars provided in correspondence to which I have referred above, to the effect that if a warning had been given then the applicant would not have embarked on the cruise, and thus would not have fallen ill on that cruise. Whether that is established at the trial will depend on the evidence.
Eighth, the respondent submits that the applicant will not establish that it was reasonably foreseeable that failing to give the pleaded warnings would result in the applicant suffering the pleaded loss and damage as required by s 267(4), because it was not reasonably foreseeable that every passenger would refuse to embark on the voyage and demand a refund if given that warning, as the applicant pleads. However, the question of reasonable foreseeability is a matter for the final hearing in the light of the evidence adduced at the trial. A relevant circumstance will be the terms of the particular warnings (if any) which are found to have been required. Further, the applicant may be able to succeed without establishing the reasonable foreseeability of each and every passenger taking that course.
The respondent made a further submission in its oral address to the effect that the allegations in paragraphs 13 to 16 are incapable of falling within s 61 of the ACL. The respondent draws attention to the allegation in paragraph 7 as to the particular purpose for the acquisition of the services being to have a relaxing and pleasurable cruise, and experience the selected cruise in accordance with the itinerary and standards advertised by the respondent. Further, paragraph 8 alleges that the desired result which the applicant made known to the respondent that she wished to achieve from the acquisition of the services was a relaxing and pleasurable cruise and to experience the cruise in accordance with the itinerary and standards advertised by the respondent. The respondent submits that the applicant’s case is that if the services were provided consistently with s 61, then she would not have gone on the cruise, with the consequence that she could not have achieved the particular purpose and the desired result which are alleged.
I do not accept that argument. The case propounded by the applicant is to the effect that the services within the meaning of s 61 in the present case included the provision of appropriate information (before and after boarding), opportunities to disembark, the implementation of appropriate policies and procedures, and appropriate care for anyone who fell ill. An element of the applicant’s case, as I understand it, is that in light of the purpose and desired result identified in the pleading, the applicant required reasonable information concerning the risks and features of the services to be provided to ensure that, as a consumer, she would be comfortable with those services, and would not be confronted by adverse and unexpected experiences. In my view, such a case is open to be pleaded pursuant to ss 61 and 267. As the applicant submits, the cause of action is complete when, by virtue of the services not being of the appropriate standard, any loss or damage has been suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure: s 267(4). It is not necessary for the claimant to demonstrate, as an additional intermediate step, that the damage was caused because the purpose or desired result had not been realised.
Accordingly, I grant leave to the applicant to file the FASC. While the applicant has succeeded in obtaining that leave, the FASC is in materially different terms to the amended statement of claim which was the subject of the respondent’s interlocutory application. In those circumstances, in my view, the appropriate order as to costs in relation to the pleading dispute is that costs be costs in the cause.
As to the costs of the security for costs application, I have not decided that application on the merits, given the resolution which the parties arrived at during the course of oral submissions. Those costs will overlap to some extent with the costs incurred in relation to the pleading dispute, particularly in that both aspects of the interlocutory application were fixed for hearing on the same day, and were the subject of the same orders for the exchange of affidavits and written submissions. In those circumstances, the appropriate order for costs of the security for costs application is also that they be costs in the cause.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate:
Dated: 18 August 2023
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