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Moore v Scenic Tours Pty Ltd (No 2)

Moore v Scenic Tours Pty Ltd (No 2)

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Supreme Court

New South Wales

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Amendment notes

Medium Neutral Citation: Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733
Hearing dates: 26, 27, 28 April 2016,11, 12, 13 May 2016
Date of orders: 31 August 2017
Decision date: 31 August 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
See [946]

Catchwords: CONSUMER LAW – all-inclusive five-star luxury cruise along European rivers – where cruise substantially disrupted by flooding – whether breach of consumer guarantees
CONSUMER LAW – meaning of “services” in particular factual context – whether breach a result of a cause independent of human control
STATUTORY CONSTRUCTION –– whether Civil Liability Act (‘CLA’) picked up by s 80 Judiciary Act
DAMAGES – compensation for reduction in value – assessment – whether amount recovered through insurance policy to be subtracted from total of compensation awardable
STATUTORY CONSTRUCTION – damages for distress and disappointment – whether Pt 2 CLA applied by s 275 Australian Consumer Law – whether damages “personal injury” under Pt 2 CLA – whether damages meet Pt 2 CLA threshold – whether CLA operates extra-territorially
DAMAGES – assessment – damages for distress and disappointment
CONTRACTS – construction – whether terms and conditions permitted significant variation of itinerary
Legislation Cited: Australian Consumer Law
Civil Liability Act 2002
Civil Procedure Act 2009
Competition and Consumer Act 2010 (Cth)
Contracts Review Act 1980
Judiciary Act 1903 (Cth)
Social Security Act 1991 (Cth)
Supreme Court Act 1970
The Package Travel, Package Holidays and Package Tours Regulations 1992 (UK)
Trade Practices Act 1971 (Cth)
Cases Cited: Adamson v NSW Rugby League Ltd (1991) 31 FCR 242
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344
Benic v State of NSW [2010] NSWSC 1039
Bradburn v Great Western Railway Co (1874) LR 10 Exch.1
Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd [1993] FCA 96; (1993) 113 ALR 677
CPA Australia Ltd v Storai [2015] VSC 442; (2015) 299 FLR 288
Fairall v Hobbs [2017] NSWCA 82
Flight Centre Ltd t/as Infinity Holidays v Janice Louw [2011] NSWSC 132
Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151
Indico Holdings Pty Ltd v TNT Australia Pty Ltd (1990) 41 NSWLR 281
Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Insight Vacations Pty Ltd v Young [2011] HCA 16; (2011) 243 CLR 149
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Jarvis v Swan Tours Ltd [1972] EWCA Civ 8; [1973] QB 233
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503
Jumbunna Coal Mine, NL v Victorian Coal Miners’ Association (1908) 6 CLR 309
Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235; (1999) 90 FCR 274
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485
Moran v McMahon (1985)…

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

Case: [2017] NSWSC 733
Decision Date: 31 August 2017

CaseChat Overview and Summary

The case of Moore v Scenic Tours Pty Ltd (No 2) involved a dispute between the plaintiff, Mr Moore, and the defendant, Scenic Tours Pty Ltd, regarding an all-inclusive five-star luxury cruise along European rivers. The cruise was substantially disrupted by flooding, leading to Mr Moore claiming a breach of consumer guarantees under the Australian Consumer Law. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court included whether the disruption due to flooding constituted a breach of consumer guarantees, the interpretation of the term “services” in the specific context, and whether the Civil Liability Act was applicable. Furthermore, the court had to determine whether the damages for distress and disappointment were recoverable under the Civil Liability Act and how they should be assessed, including whether compensation recovered through an insurance policy should be subtracted from the total damages awardable. Additionally, the court needed to decide if the Civil Liability Act operated extra-territorially and whether the contract terms allowed for significant variations in the itinerary.

In its reasoning, the court found that the flooding was an independent cause beyond the control of Scenic Tours, and thus did not constitute a breach of the consumer guarantees. The court interpreted the term "services" narrowly, concluding that it did not cover disruptions caused by natural events outside human control. Regarding statutory construction, the court held that the Civil Liability Act was not applicable to the damages claims under the Australian Consumer Law. The court also found that damages for distress and disappointment were not considered "personal injury" under the Civil Liability Act and did not meet the required threshold. Consequently, Scenic Tours was not liable for such damages. The court further ruled that any compensation received from an insurance policy could be subtracted from the total damages awardable to Mr Moore.

The final orders of the court dismissed Mr Moore's claims against Scenic Tours Pty Ltd, holding that the company was not liable for the disruption caused by the flooding. The court clarified that the insurance compensation would be deducted from any potential damages award.

Orders