Moore v Scenic Tours Pty Ltd (No 2)

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.