Mead v Queensland Rail Travel
[2012] QCAT 125
•24 February 2012
| CITATION: | Mead and Anor v Queensland Rail Travel [2012] QCAT 125 |
| PARTIES: | Mr Lawrence Mead Mrs Irene Mead (Applicants) |
| v | |
| Queensland Rail Travel trading as Queensland Travel Centre (Respondent) |
| APPLICATION NUMBER: | MCDO1221-11 (Southport) |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 9 February 2012 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 24 February 2012 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | [1] THAT the Claim is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – Breach of contract – train derailment causing changed travel arrangements – where passengers cancelled travel – any entitlement to refund – any act or omission of passengers – conditions of carriage |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Mr Lawrence Mead and Mrs Irene Mead |
| RESPONDENT: | Mrs Judith Lee representing Queensland Rail Travel |
REASONS FOR DECISION
The Applicants (“Mr and Mrs Mead”) seek orders from the tribunal that the Respondent (represented by “Mrs Lee”) refund to them the sum of $1.996.00 due to unused travel expenses.
Mr and Mrs Mead stated that they decided to travel on a tour with Qld Rail to Longreach and Winton in Queensland and paid a deposit of $200.00 on 18 August 2011 to Qld Rail Travel (“QRT”). The tour was to proceed by train to Longreach and a bus tour from Longreach to Winton. The tour was to depart from Brisbane on 15 October 2011. They paid the balance of their tour on 13 September 2011 of $2,276.00. They presented a summary[i] of their claim to the tribunal setting out the facts.
The total cost of the tour was $2,476.00. Mr and Mrs Mead stated that they have received a refund of $480.00 for the rail fees. They are claiming the difference of $1,996.00. Mr and Mrs Mead claim that they received a telephone call on 14 October 2011, a day before their tour was to depart. They said the call from QRT advised them that due to a major train derailment west of Rockhampton that alternative plans had been made to their tour as the first leg of the trip could not proceed by train. They said they were told that a bus would instead pick them up and transport them to Emerald where the train would recommence its journey and the tour would continue. Mr and Mrs Mead said that they refused to accept this alternative method of transportation due to the fact that Mrs Mead has a medical condition that would prevent her from travelling for any length of time sitting in a bus. Mr and Mrs Mead provided a copy of an MRI lumbar spine report[ii] for Mrs Mead from her doctor as evidence of a back condition.
Mr and Mrs Mead stated that they informed QRT of this and stated that they only agreed to take the tour based on the fact that the train sector of the tour meant that they could book a sleeper carriage so that Mrs Mead could lie down if sitting on the train became too painful or uncomfortable for her.
Mr and Mrs Mead said that they paid additional costs for the sleeper carriage and would not have travelled if that was not available. They claimed that the breakdown of the tour costs were $1,996.00 for the tour and $480 for the rail fare.
Mr and Mrs Mead alleged that they were not given any alternative options for their travel plans and were therefore forced to cancel the trip due to Mrs Mead not being able to cope with her medical condition and travelling on a bus to Emerald which was estimated to take approximately 12 hours.
Mr and Mrs Mead stated that they were advised to take out travel insurance but did not take it due to the fact they were aware that Mrs Mead would not be covered under the Policy for a pre-existing medical condition. Mr Mead said that if he had taken out travel insurance it would not have covered them anyway. He referred to Item 20 and Loss of Transportation clause to support his contention. A copy of the QBE Travel Insurance Product Disclosure Statement and Policy[iii] was provided to the tribunal by Mrs Lee.
Mr and Mrs Mead alleged that they were not aware of the “conditions of travels” by QRT and were not advised to read and acknowledge such an agreement. They claimed they were the “innocent party” in the matter and having “done no wrong” they should be reimbursed their travel funds. They claim that the train derailment was an accident and that event caused them to have to cancel their trip and that they believed that “QRT would have insurance for this type of thing” and as “they are responsible” for the travel disruption they should reimburse their money to them.
Mrs Lee was the representative from QRT at Robina and provided a statement[iv] to the tribunal setting out their case. Mrs Lee stated that Mr and Mrs Mead booked a tour called ‘Great Value Outback Escorted Rail Tour’ and paid $2,476.00. The tour included rail travel with sleeper and accommodation and tours in the Longreach and Winton areas. The rail travel was on the Spirit of the Outback train service from Brisbane to Longreach and return. The tour was to depart Brisbane on Sunday 16 October 2011. She said that this service was operated by Queensland Rail Limited and that the Longreach and Winton component of the tour consisted of a tour of the area by coach.
Mrs Lee provided the tribunal with a copy of a Traveltrain Operations Derailment Notice.[v] That Notice (No 2) refers to Derailment at Yamala on Thursday 13 October 2011 at 1845 hrs and refers to the disruption to the Brisbane to Emerald and Longreach lines.
Mrs Lee stated that at the time of booking the tour that Mr and Mr Mead were offered travel insurance and were provided with a quotation of $67.00 and Mr and Mrs Mead declined to take the travel insurance option. Mrs Lee said that her travel consultants and advisers recommend and really press the need and benefit of travel insurance to their customers. She said that all receipts are stamped with “Travel Insurance is Recommended” and the client file was marked with “Insurance to be taken $67.00”. Copies of the receipts[vi] and file notes were provided that confirmed the evidence of Mrs Lee.
Mrs Lee stated that Mr and Mrs Mead were issued with a travel wallet and tickets with “Queensland Rail Conditions of Carriage” printed on the back of the ticket. A copy of the back of the ticket[vii] was produced and it stated at clauses 9 and 10:
“Operators may without notice to the customer substitute any services or mode of carriage to carry the customer. These conditions shall apply to any substituted mode of carriage or service …. The customer acknowledges that industrial disputes, loading restrictions, inclement weather or other causes may necessitate the cancellation and/or delay of carriage or services and the Operators may cancel the carriage or services booked by the customer due to such causes …. The Operator shall be under no obligation or liability to the Customer or any person due to:
Withdrawal or failure to provide carriage or service, or any costs or losses incurred by the customer relating to diversion, substitution, alteration, cancellation or delay or from loss or delay of luggage, or loss or damage occurring due to any variation in the time of arrival or departure or any other cause beyond the control of the operator.”
Mrs Lee stated that the travel terms of conditions of carriage also state at clause 20 that:
“If the operator is unable to provide Carriage to the Customer on the train it may: offer carriage to the customer on another date without extra charge or make a refund of the fare. Except as provided by this clause the Operator shall not be liable for any loss or damage caused by any changes made to the allocation of seats, cabins or berths for failure to carry the Customer on the Train for any loss or damage consequential upon such changes or failure.”
The terms and conditions refer specifically to any tours booked through independent third parties whereby it states at clause 34 that:
“All services booked by the Operator with third parties (including but not limited to transportation services not provided by the operator, airline, hotel transfer and porter services) are booked as Agent for the Customer and the operator shall not be liable for any loss or damage caused to the customer or the customers luggage in connection with services provided by such third parties.”
Mrs Lee said that the travel insurance recommendation is also contained in the travel pack given to all customers. That travel wallet contains information and a brochure called a “Travel Information Leaflet”. She said that brochure is clearly marked and that the first heading is “Travel Insurance” and it advised that travel insurance be taken out. A copy of that leaflet was provided and supported the evidence of Mrs Lee. The travel insurance blurb states that “It is advisable to take out personal travel insurance to cover any unforseen circumstances that may affect your travel plans. Should you require travel insurance please contact your local Qld Rail Travel Centre or travel agent or phone….”
Mrs Lee gave evidence that the events leading to the change of travel plans was that on Wednesday 12 October 2011 a train operated by third party operator QR National derailed at Yamala, between Emerald and Blackwater. She said the derailment caused disruptions to other services including the Spirit of the Outback service scheduled to depart Roma Street station on Sunday 16 October 2011. She said Qld Rail arranged alternative transport for customers. She said in the case of Mr and Mrs Mead the alternative transport was from Brisbane to Emerald by coach and then transport from Emerald to Longreach by train. She said that the train from Emerald to Longreach was in a sleeper carriage. She said that Mr Mead was notified of the disruption and change of transport arrangements on 14 October 2011 by telephone and by email.
Mrs Lee said that Mr Mead declined to accept the changed transportation and the alternative arrangements that had been made. She said Mr Mead advised her that they had just been to the dentist and that Mrs Mead had a bad back.
Mrs Lee gave evidence that Mr and Mrs Mead were then offered alterative arrangements in that they could fly from Brisbane to Longreach and they were provided with flight times. Mrs Lee said that Mr and Mrs Mead declined to accept the offer and said that they were “not interested in flying”. Mrs Lee said that Mr and Mrs Mead advised her that they had not taken out travel insurance because of a “pre-existing condition.”
Mrs Lee said that Qld Rail have provided a full refund to Mr and Mrs Mead for the rail travel component of the tour being $480.00.
Mrs Lee said that the sum of $1,996.00 was the cost of the tour component of the trip and that it was a tour operated by a third party operator. She said that due to such late notice that the tour operator had already paid for accommodation costs and such late cancellation did not enable the operator to provide a refund.
Mrs Lee stated that Mr and Mrs Mead were not entitled to a refund due to the fact that they were offered two alternative means of transportation, both of which would have had them arrive in Longreach in time to undertake the Longreach Winton tour and that they declined to take out travel insurance despite advice and recommendations to do so. Mrs Lee stated that she did not to some extent accept the excuse of a medical condition that Mrs Mead used to refuse the coach travel to Emerald as part of the tour in the Longreach/Winton areas was on a coach and that would require Mrs Mead to sit for periods on the coach during those tours.
Mrs Lee stated that the fact that Mr and Mrs Mead did not take out travel insurance was their fault, and that if they had they would likely have been covered by their insurance policy and should have recovered the tour cost under insurance.
Findings
I find that Mr and Mrs Mead did not disclose in their claim, or in their initial evidence in chief that they were offered another alternative means of transportation to Emerald other than by coach. If Mrs Mead did have a back problem then that might have been a reasonable position to refuse coach transfer but they did not initially disclose they were offered the option to fly. Mr and Mrs Mead did not offer any reasonable explanation why they refused the offer to fly to Longreach to catch up with the planned tour other than they were “not interested in flying”.
Mr Mead stated that they did not take travel insurance due to the fact that his wife had a pre-exiting medical condition that would not be covered under the policy. While it is correct that Mrs Mead would not be covered for her pre-existing medical condition, the policy would have covered for other events. For example Mr Mead might have become unwell or either of them could have an accident that prevented them travelling on the due date. Or the policy could have covered them for the derailment. Mr Mead said that it was more likely they would not be able to travel due to Mrs Mead’s medical problems but I do not accept that as a valid reason not to have taken out the travel insurance. I have examined the QBE travel insurance document and it is clear that Section D1 of the policy would likely have covered Mr and Mrs Mead in this instance. However, they did not take out the cover so the point is academic. I do not accept that the reason they did not take out the travel insurance was due to Mrs Mead’s pre-existing condition but more an issue of either cost or the fact they did not envisage that they would need it.
Mrs Mead’s medical report relating to any MRI Lumbar spine was not conclusive evidence that she was not able to travel by coach or that her medical condition prevented her from travelling at all.
In this case the evidence supports a finding that Queensland Rail’s Conditions of Carriage indemnifies Queensland Rail and that the tour costs paid to a third party operator were cancelled at such short notice that would not warrant a refund.
I find that Mr and Mrs Mead were fully aware of the terms and conditions of their travel and that they were advised on more than two occasions to take out travel insurance. They acknowledge that they were advised to take out insurance and yet refused to do so. I am satisfied and find that alternative travel arrangements were attempted to be made to satisfy Mr and Mrs Mead and that if they could not travel by coach as offered they should have considered the flight option. I find that the coach option could have been considered by Mr and Mrs Mead as it appears that the coaches were to “depart from Roma Street in Brisbane around 6.30pm” and that “refreshments were to be provided to all customers…. and comfort stops will be arranged as required by the on board staff.” I find that this travel option would be comparable to the coach tours in Winton and Longreach that Mr and Mrs Mead were to undertake by coach and for entire days at a time. I find that such coach tours would equate to the travel time that Mrs Mead would have had to endure had she taken the coach from Brisbane to Emerald in any event to continue the train trip from Emerald to Longreach.
Breach of Contract
I cannot make any findings that QRT have breached their contract with Mr and Mrs Mead. I find that QRT did all that they could in such difficult circumstances to arrange alternative travel options for Mr and Mrs Mead to ensure they reached Emerald in time to meet up with the rest of the tour. I am satisfied they have fulfilled all of their obligations under the Trade Practices Act 1974 (Cth).
Conclusion
I find that having considered all of the evidence of the parties and their exhibits provided to the tribunal together with the evidence that was filed with the original claim on 23 November 2011 and for the reasons set out above I make the following decision and order as follows:
Orders
THAT the Claim is dismissed.
[i] Exhibit 2.
[ii] Exhibit 6.
[iii] Exhibit 5.
[iv] Exhibit 3.
[v] Exhibit 4.
[vi] Exhibit 4.
[vii] Exhibit 3.
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