KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
DAVID MOORE APPELLANT
AND
SCENIC TOURS PTY LTD RESPONDENT
Moore v Scenic Tours Pty Ltd
[2020] HCA 17
Date of Hearing: 11 February 2020 Date of Judgment: 24 April 2020
S285/2019
ORDER
1.Appeal allowed.
2.Set aside order 5 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 24 October 2018 and reinstate the primary judge's order of damages for disappointment and distress pursuant to s 267(4) of the Australian Consumer Law and for pre‑judgment interest thereon, and further order that Scenic Tours Pty Ltd pay to Mr Moore post-judgment interest under s 101 of the Civil Procedure Act 2005 (NSW).
3.Set aside order 8 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 24 October 2018 and remit to the primary judge the question of whether group members may recover damages for disappointment and distress.
4.Vary order 14 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 7 December 2018, with reference to the Agreed Common Questions and Answers filed on 7 November 2018, as follows:
(a)Vary the last paragraph of A15 by deleting the words "however, there is no entitlement under that provision to any damages for distress or disappointment" and substituting "which damages may include disappointment and distress suffered by reason of the defendant's failure to comply with the guarantees".
(b)Vary A17 by substituting "No".
5.Set aside order 13 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 24 October 2018 and remit the question of the costs of that appeal to that Court for reconsideration.
6.Scenic Tours Pty Ltd pay Mr Moore's costs of the appeal and of the application for special leave to appeal.
On appeal from the Supreme Court of New South Wales
Representation
J T Gleeson SC with J A Hogan-Doran and C G Winnett for the appellant (instructed by Somerville Legal)
D L Williams SC with D S Weinberger and A A Lyons for the respondent (instructed by SWS Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Moore v Scenic Tours Pty Ltd
Damages – Consumer guarantees – Personal injury – Where appellant booked holiday cruise tour supplied by respondent – Where holiday cruise tour severely disrupted by adverse weather conditions – Where respondent breached consumer guarantees in ss 60 and 61 of Australian Consumer Law ("ACL") – Where appellant claimed damages for disappointment and distress – Where s 275 of ACL provided that where failure to comply with consumer guarantee that applies to supply of services and State law proper law of contract, that law applies to limit or preclude liability for failure and recovery of liability as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Moore v Scenic Tours Pty Ltd [2020] HCA 17
Case
[2020] HCA 17
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Moore against Scenic Tours Pty Ltd concerning damages for disappointment and distress arising from a severely disrupted holiday cruise. Mr Moore had booked an all-inclusive luxury cruise, which was significantly affected by adverse weather conditions, resulting in extensive bus travel and multiple ship changes, falling far short of the advertised experience. Mr Moore alleged breaches of consumer guarantees under the Australian Consumer Law (ACL), specifically ss 60 and 61, and sought damages for disappointment and distress.
The central legal issue before the High Court was whether s 275 of the ACL, which directs that state laws apply to limit or preclude liability for breaches of consumer guarantees where that state law is the proper law of the contract, incorporated s 16 of the *Civil Liability Act 2002* (NSW). Section 16 of the NSW Act precludes damages for non-economic loss in personal injury cases unless a minimum threshold of severity is met. The court had to determine if this NSW limitation applied to Mr Moore's claim for disappointment and distress, even if that distress was not consequential upon physical or psychiatric injury.
The High Court reasoned that s 275 of the ACL does not operate to apply the limitations in Part 2 of the *Civil Liability Act 2002* (NSW) to claims for disappointment and distress that do not arise from physical or psychiatric injury. The Court found that Part 2 of the NSW Act is confined to claims for personal injury, and the damages it limits are those for non-economic loss flowing from such injury. Therefore, s 16 of the NSW Act did not preclude Mr Moore's claim for damages for disappointment and distress, irrespective of where the loss was suffered. The appeal was allowed, with the primary judge's order for damages for disappointment and distress reinstated, and the matter of group members' recovery for such damages remitted to the primary judge.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 5 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 24 October 2018 and reinstate the primary judge's order of damages for disappointment and distress pursuant to s 267(4) of the Australian Consumer Law and for pre‑judgment interest thereon, and further order that Scenic Tours Pty Ltd pay to Mr Moore post-judgment interest under s 101 of the Civil Procedure Act 2005 (NSW).
3. Set aside order 8 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 24 October 2018 and remit to the primary judge the question of whether group members may recover damages for disappointment and distress.
4. Vary order 14 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 7 December 2018, with reference to the Agreed Common Questions and Answers filed on 7 November 2018, as follows:
(a) Vary the last paragraph of A15 by deleting the words "however, there is no entitlement under that provision to any damages for distress or disappointment" and substituting "which damages may include disappointment and distress suffered by reason of the defendant's failure to comply with the guarantees".
(b) Vary A17 by substituting "No".
5. Set aside order 13 of the orders made by the Court of Appeal of the Supreme Court of New South Wales on 24 October 2018 and remit the question of the costs of that appeal to that Court for reconsideration.
6. Scenic Tours Pty Ltd pay Mr Moore's costs of the appeal and of the application for special leave to appeal.
Background
Background to the litigation
It is convenient now to set out a brief summary of the factual, statutory and procedural background before turning to consider the arguments of the parties concerning the operation of s 275 of the ACL and the scope of s 16 of the CLA.The facts The river cruise was promoted in Scenic's tour brochure as "a once in a lifetime cruise along the grand waterways of Europe", with guests on board the Scenic vessel treated to "all inclusive luxury"[4]. Mr Moore and his wife chose Scenic's river cruise because they wanted to see different locations in Europe without having to unpack their belongings more than once[5]. The river cruise also suited Mr Moore because he found it difficult to spend extended periods of time sitting down, particularly in confined spaces, following spinal surgery[6]. The tour was paid for 12 months in advance with what Mr Moore described as his "life savings"[7].[4]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [3].[5]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [78].[6]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [78].[7]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [2], [813]. The tour commenced in Paris on 31 May 2013. The river cruise along the Rhine, Main and Danube Rivers was scheduled to depart from Amsterdam on 3 June 2013 on board the Scenic Jewel and to conclude two weeks later in Budapest[8]. The cruise was severely disrupted by adverse weather conditions that resulted in high water levels on the Rhine and Main Rivers[9]. Instead of cruising for ten days as scheduled in the itinerary, Mr Moore's experience was of many hours spent travelling by bus; he cruised for only three days[10]. The cruise also began on board a different vessel to the luxurious Scenic Jewel[11]; and by the time the cruise concluded in Budapest, the Moores had changed ship at least twice[12]. In short, the holiday tour fell far short of the "once in a lifetime cruise" in "all inclusive luxury" that Mr Moore was promised by Scenic[13].[8]Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456 at 461 [4].[9]Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456 at 461 [5].[10]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [644].[11]Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456 at 461 [5].[12]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [5].[13]Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [3].The proceedings Representative proceedings were commenced in the Supreme Court of New South Wales against Scenic by Mr Moore on his behalf and that of approximately 1,500 other passengers ("group members") of 13 Scenic cruises that were scheduled to depart between 19 May 2013 and 12 June 2013[14]. [14]Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456 at 461 [3], [7]. In the representative proceedings it was alleged that Scenic failed to exercise due care and skill in the supply of the tours, in breach of the guarantee in s 60 of the ACL; that the severe disruptions to the river cruises rendered the services comprising the holiday tours unfit for the purpose for which Mr Moore and each of the group members acquired them, in breach of the guarantee in s 61(1) of the ACL; and that the tours were not of a nature and quality as could reasonably be expected to achieve the result that Mr Moore and each of the group members wished the services to achieve, in breach of the guarantee in s 61(2) of the ACL.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
EDELMAN J
For the sake of completeness, it should also be noted that there is a suggestion in the reasons of the Court of Appeal in the present case[74] that when Insight Vacations[75] came before this Court on appeal, the Court accepted that this issue had been correctly decided below. In this regard, the Court of Appeal erred. This Court in Insight Vacations did not address those conclusions, and, indeed, had no occasion to do so given the issues before it. [74]Scenic Tours Pty Ltd v Moore (2018) 361 ALR 456 at 540 fn 222.[75](2011) 243 CLR 149.Conclusion For these reasons, the appeal must be allowed. Mr Moore argued that s 16 of the CLA, construed in light of s 12(1)(b) of the Interpretation Act 1987 (NSW), has no application to his case because the disappointment and distress in respect of which he claims was suffered outside of New South Wales. It is unnecessary to proceed to consider whether s 16 of the CLA is subject to the geographical limitation for which Mr Moore contended. As has been explained, s 16 does not affect Scenic's liability to Mr Moore in respect of his claim for damages for disappointment and distress. That is the case irrespective of where that loss was suffered. Orders The following orders, which the parties agreed should take effect in the event the appeal be successful, should be made:1.The appeal be allowed.2.Order 5 made by the Court of Appeal on 24 October 2018 be set aside and the primary judge's order of damages for disappointment and distress pursuant to s 267(4) of the ACL and for pre-judgment interest thereon be reinstated, and further it be ordered that Scenic pay to Mr Moore post‑judgment interest under s 101 of the Civil Procedure Act 2005 (NSW).3.Order 8 made by the Court of Appeal on 24 October 2018 be set aside and the question of whether group members may recover damages for disappointment and distress be remitted to the primary judge.4.Order 14 made by the Court of Appeal on 7 December 2018 be varied, with reference to the Agreed Common Questions and Answers filed on 7 November 2018, as follows:(a)Varying the last paragraph of A15, by deleting the words "however, there is no entitlement under that provision to any damages for distress or disappointment" and substituting "which damages may include disappointment and distress suffered by reason of the defendant's failure to comply with the guarantees".(b)Varying A17, by substituting "No". 5.Order 13 made by the Court of Appeal on 24 October 2018 be set aside, and the question of costs of that appeal be remitted to that Court for reconsideration.6.Scenic pay Mr Moore's costs of the appeal and of the application for special leave to appeal. I agree with the reasons and proposed orders in the joint judgment. I wish only to add the following additional remarks concerning why Mr Moore was correct in his submission that Pt 2 of the Civil Liability Act 2002 (NSW) is concerned exclusively with claims for damages for personal injury and why those damages do not extend to compensation for "expectation loss", including distress or disappointment, where that loss is not consequential upon physical injury whether the claim is brought for a breach of contract or a breach of the consumer guarantees in s 61(1) and (2) of the Australian Consumer Law[76]. [76]Competition and Consumer Act 2010 (Cth), Sch 2.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ,
EDELMAN J