Moore v Scenic Tours Pty Ltd (No 4) - [2022] NSWSC 270

Supreme Court

New South Wales

Medium Neutral Citation: Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270
Hearing dates: 15–19 March 2021, 24–26 March 2021
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Common Law
Before: Garling J
Decision:
See [830]

Catchwords:
CONSUMER LAW — enforcement and remedies — remedies relating to statutory guarantees — action against supplier of services — calculation of damages for reduction in value of services — calculation of damages for distress and disappointment — calculation of damages for consequential economic loss

Legislation Cited:
Civil Liability Act 2002 (NSW) s 16
Civil Procedure Act 2005 s 100
Competition and Consumer Act 2010 (Cth) Sch 2 – The Australian Consumer Law ss 61, 267, 275

Cases Cited:
Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4
Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15
Jarvis v Swan Tours Ltd [1973] QB 233
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79
Milner v Carnival plc [2010] EWCA Civ 389; [2010] 3 All ER 701
Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17
Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733
Robinson v Harman (1848) 1 Ex Rep 850; 154 ER 363
Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456
Watts v Morrow [1991] 1 WLR 1421

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: David Moore (Plaintiff/Applicant)
Scenic Tours Pty Ltd (Defendant/Respondent)
Representation:
Counsel:
J A Hogan-Doran SC/ N Li (Plaintiff/Applicant)
D S Weinberger / A Jordan (Defendant/Respondent)
Solicitors:
Somerville Legal Pty Ltd (Plaintiff/Applicant)
SWS Lawyers (Defendant/Respondent)

File Number(s): 2014/223271
Publication restriction: Not Applicable

Judgment

Introduction

In a Fourth Further Amended Statement of Claim, which was ultimately filed in this Court on 6 March 2020, the plaintiff, David Moore, brings a representative action, claiming compensation and damages arising out of a European river cruise that he and his wife took during June 2013.
Mr Moore claims against Scenic Tours Pty Ltd (“Scenic”) that, with respect to 13 identified Cruises which travelled from Amsterdam to Budapest along the Rhine River, the Main River, the Main/Danube Canal and the Danube River (or else in the reverse direction), contrary to consumer guarantees, Scenic did not provide a “once in a lifetime cruise along the grand waterways of Europe” where he and his fellow group members would be immersed in all-inclusive luxury and that they would have a “truly unforgettable journey”.
Mr Moore and 31 group members seek an assessment by the Court of the damages to which they are entitled.

Procedural History

In a decision delivered on 31 August 2017, Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 (“my first judgment”), I held that Mr Moore was entitled to succeed against Scenic, and was entitled to damages by way of compensation for the reduction in value in the services which he received, below the price paid for those services, pursuant to s 267(3) of Sch 2 of the Competition and Consumer Act 2010 (Cth) – The Australian Consumer Law (“ACL”) and for disappointment pursuant to s 267(4) of the ACL. As well, I ordered that he receive interest on the sums which I assessed.
On 24 October 2018, the Court of Appeal delivered a judgment in the matter: Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456 (“the Court of Appeal’s judgment”). The Court of Appeal found that Mr Moore and the group members were precluded by s 275 of the ACL and s 16 of the Civil Liability Act 2002 (“the CLA”) from claiming damages for distress and disappointment. The Court of Appeal also held that in assessing the value of the services provided to the plaintiff or the group members, which are to be reduced by Scenic’s failure to comply with the consumer guarantees, the assessment is required to take place by reference to objective, rather than subjective, considerations.
There were other findings as well, which were encapsulated in answers to the common questions which will be referred to later.
Following a grant of special leave, Mr Moore appealed to the High Court of Australia.
On 24 April 2020, the High Court allowed the appeal by Mr Moore: Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“the High Court’s judgment”).
The High Court held that Mr Moore and the group members were entitled to damages for distress and disappointment pursuant to s 267(4) of the ACL and that s 16 of the CLA does not affect Scenic’s liability to Mr Moore in respect of his claim for damages for disappointment and distress.

Common Questions and Answers

At the hearing of the proceedings initially, in addition to deciding the plaintiff’s claim, the Court was asked to, and answered, identified questions which were common between the plaintiff’s claim and the claims of other group members.
Ultimately, after the High Court of Australia delivered its judgment, the parties agreed on the common questions and answers which reflected my first judgment, the Court of Appeal’s judgment, and the High Court’s judgment. Those agreed common questions and answers are as follows:

Q1:   How are the ‘services’ supplied, or to be supplied, by Scenic to group members to be characterised, for the purposes of their claims under the Australian Consumer Law?
A1:   The services to be provided by Scenic to group members were the benefits and facilities of each cruise tour they booked and paid for (or had booked and paid for on their behalf), as described in Scenic’s Tour Brochure.
Q2:   Were the said services merely co-extensive with or limited by the Terms and Conditions by which group members were contractually bound?
A2:   No.
Q3:   Did the ‘services’ extend to the supply of information to group members:
(a) before the embarkation of their respective cruises; and/or
(b) after the embarkation of their respective cruises?
A3:   (a) No.
(b) Yes. The services extended to the provision of timely information about substantial disruptions to the respective itineraries known to Scenic or of which it ought to have known.
Q4:   Were the services to be performed wholly or partly outside Australia and, if so, do the provisions of the Australian Consumer Law apply to such services:
A4: The services were to be partly performed outside Australia. The provisions of the Australian Consumer Law apply to services performed outside Australia.
Q5:   What was the ‘particular purpose’ made known to Scenic by group members?
A5:   The group members impliedly made known to Scenic that they wished to enjoy an all-inclusive five-star luxury river cruise experience with the additional services promised by Scenic.
No determination has presently been made as to any additional purpose expressly made known to Scenic by any group members.
Q6:   What was the ‘result’ that group members wished to receive from the services that was made known to Scenic?
A6:   The group members impliedly made known that the result which they wished to receive was the services which Scenic assured them that they would receive in the Tour Brochure.
Q7:   Was there a breach of the ‘Purpose’ guarantee (s 61(1)) in respect to any cruise?
A7:   Subject to any s 61(3) defence made out in respect to any group members, there was a breach of the Purpose guarantee in respect to cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 & 11.
Q8:   Was there a breach of the ‘Result’ guarantee (s 61(2)) in respect to any cruise?
A8:   Subject to any s 61(3) defence made out in respect to any group members, there was a breach of the Result guarantee on cruises in respect to cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 & 11.
Q9:   Was Scenic’s failure to comply with the purpose and result guarantees on the subject cruises due solely to causes occurring after it had supplied services to group members?
A9:   No.
Q10:   Was Scenic under any obligation to provide information to group members about the prospect of significant disruption to their respective cruises before they embarked upon their cruises?
A10:   No.
Q11:   Did any knowledge of Scenic (which it knew or ought to have known) that a cruise, once embarked, was likely to experience significant disruption to the itinerary, necessarily oblige Scenic to cancel the cruise?
A11:   No.
Q12:   Was there a breach of the ‘Care’ guarantee (s 60) in respect to any cruise?
A12:   The Care guarantee was breached in respect to cruises 4, 5, 6 & 7. In the case of each of these cruises, the breach was established by Scenic’s failure to inform passengers on those cruises of the prospect of significant interruption to their scheduled itineraries.
The Care guarantee was also breached in respect to cruises 10 & 13, although group members on those cruises did not suffer compensable loss. In the case of each of these cruises, the breach was established by Scenic’s failure to inform passengers on those cruises of the prospect of significant interruption to their schedule itineraries.
There was no breach of the Care guarantee in respect to cruises 1, 8, 9, 11 or 12 for any failure to inform group members on those cruises, prior to embarkation, of any likely disruptions, or any failure to cancel a cruise.
No asserted breach of the Care guarantee was pursued in respect to cruises 2 & 3.
Q13:   Whether it is a defence for Scenic that it relied upon the advice(s) of its services providers, or ‘nautical’ partners, referred to in its Defence?
A13:   No.
Q14:   Whether the defendant’s service providers were the entity or entities responsible for damage suffered by the group members?
A14:   No.
Q15:   What heads of damage are recoverable for a claim for compensation under s 267 of the Australian Consumer Law?
A15: Subject to any s 61(3) defence made out, group members on cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 & 11 were entitled to receive compensation under s 267(3)(b) for any reduction in the value of services received below the price they paid, arising from Scenic’s non-compliance with ss 61(1) and (2) of the Australian Consumer Law.
Group members on cruises 4, 5, 6 & 7 were also entitled to receive compensation under s 267(3)(b) for any reduction in the value of services received below the price they paid, arising from Scenic’s non‑compliance with s 60 of the Australian Consumer Law.
The award of compensation under s 267(3)(b) is to be assessed by reference to objective criteria.
Group members are also entitled to damages under s 267(4) for any loss or damage suffered because of a failure to comply with the guarantees if such loss or damage was reasonably foreseeable as a result of such failure, which damages may include disappointment and distress suffered by reason of the defendant’s failure to comply with the guarantees.
Q16: Is any award for compensation under s 267(3)(b) to be reduced on account of any payment received by a group member pursuant to a travel insurance police?
A16:No.
Q17:   In circumstances where New South Wales was the proper law of the contract and the non-compliance with the consumer guarantees occurred outside New South Wales, does s 275 (by picking up and applying s 16 of the Civil Liability Act 2002 (NSW) as a surrogate federal law) operate to preclude Scenic being liable to passengers for damages under s 267(4) for distress and disappointment?
A17:No.
Q18:   Whether any or all of clauses 2.10(h), 2.12 and 2.13 of the standard terms and conditions of the contract applied to exclude or limit Scenic’s liability.
A18:No.
Q19:   Did each of cll 2.6(d) and 2.10 of the standard terms have the effect pleaded in paragraph 17J of the Fourth Further Amended Statement of Claim?
A19:Not necessary to answer.
Q20:   In respect of each of cll 2.6(d) and 2.10 of the standard terms:
20.1   did either or both cause a significant imbalance in the rights or obligations arising under contract?
20.2   was either or both reasonably necessary to protect the defendant’s legitimate interests?
20.3   would either of them cause detriment to the plaintiff or group members if applied or relied upon by the defendant?
A20:   Not necessary to answer.
Q21:   With respect to Questions 1-20 inclusive, are the answers common to all group members, some group members and, if so, which ones, or no group members.
A21:   Save to the extent indicated in the answers to the said questions, all of the answers are common to the claims of all group members.
The group members include all passengers on the relevant cruises except for passengers who booked and paid for their cruise or acquired the services of the defendant concerning the operation of river cruises through Scenic Tours (UK) Limited.

Notice of Motion

On 31 July 2020, Mr Moore filed a Notice of Motion seeking a range of relief with respect to damages.
Relevantly, that Notice of Motion sought the following:

“Damages awards
1 An order pursuant to s 177(1)(e) of the Civil Procedure Act 2005 (NSW) for an award of damages (together with interest) for group members pursuant to s 267(3)(b) of the Australian Consumer Law (“the Reduction in Value Damages”).
2 An order pursuant to s 177(1)(f) of the Civil Procedure Act 2005 (NSW) for an award of damages (together with interest) in an aggregate amount for the disappointment and distress of group members pursuant to s 267(4) of the Australian Consumer Law (“the Distress Damages”).
3 An order pursuant to s 177(1)(f) of the Civil Procedure Act 2005 (NSW) for an award of damages (together with interest) in an aggregate amount for the airfares of group members pursuant to s 267(4) of the Australian Consumer Law (“the Airfare Damages”).

Further consequential relief was sought.
This judgment deals with the assessment of damages for 31 group members, in addition to Mr Moore, under the three heads posed in the Notice of Motion.

Relevant Factual Findings from First Hearing

In order to set the background, it is necessary to record the following facts regarding what occurred on each of the Cruises.
Cruise 1, which was addressed at [453]-[483] of my first judgment, was a 14 day cruise through the south of France. The Cruise commenced on Sunday, 19 May 2013, with the first night in Paris at a hotel. Passengers were, on the morning of 20 May 2013, intended to travel by the fast train, the TGV, to Dijon from where they would be transferred by coach to Chalon-sur-Saône to board the Scenic Emerald. The Cruise was intended to finish on 1 June 2013, when passengers would disembark the ship in Arles and be transferred by coach to Nice airport. The planned itinerary included 12 days of cruising. The route proceeded south from Chalon-sur-Saône in central France to Arles in the south of France, passing through Tournus, Macon, Trevoux, Lyon, Vienne, Tournon, Viviers, Châteauneuf-du-Pape and Avignon.
In the end passengers on Cruise 1 cruised on only one of the 12 planned cruising days. The passengers were instead provided with coach trips, which took many, many hours, during which they travelled to various locations and then returned to the Scenic ship when it was docked. They were also accommodated in hotels, two nights in Avignon and one night in Nimes, which required them to pack and unpack their suitcases for each hotel stay, and as the ships were changed.
Cruise 2, which was addressed at [484]-[496] of my first judgment, was to proceed along the route from Budapest to Amsterdam, passing through Vienna, Dürnstein, Melk, Linz, Passau, Regensburg, Nuremberg, Bamberg, Würzburg, Wertheim, Rudesheim, Marksburg, and Cologne (“the Budapest to Amsterdam route”). The Cruise was scheduled to commence on 20 May 2013 upon the Scenic Jewel.
From 20 to 28 May 2013, Cruise 2 proceeded as scheduled. However, for three days from 28 to 30 May 2013, no cruising occurred as the ship was docked in Bamberg and unable to leave. On 31 May 2013, the passengers were transferred by coach for the day as they changed ships. Although some cruising occurred overnight, there was no daytime experience of cruising. From 1 June to the conclusion of the Cruise on 3 June 2013, the Cruise proceeded as scheduled.
Cruise 3, which was addressed at [497]-[523] of my first judgment, was to proceed from Amsterdam to Budapest, through the towns named in [19] above but in the reverse order (“the Amsterdam to Budapest route”). The Cruise was scheduled to commence on 25 May 2013 on the Amadeus Silver.
From 25 to 28 May 2013, Cruise 3 proceeded as scheduled. However, the only cruising which took place in accordance with the itinerary and Brochure was over the initial four-day period which included two days of cruising. The balance of the tour consisted of coach travel over long distances and for many hours. Instead of having 10 days during which passengers could experience the promised cruising, the passengers on the trip experienced only two. The passengers were accommodated on two different ships and in two different hotels.
Cruise 4, which was addressed at [524]-[555] of my first judgment, was to proceed along the Amsterdam to Budapest route. The Cruise was scheduled to commence on 27 May 2013 upon the Scenic Ruby.
The passengers on Cruise 4 had only three days of cruising, one of which was incomplete. From the fourth day onwards, all touring was done by coach. An email on 10 June 2013, from Justin Brown to Glen Moroney recorded that there were “7 unplanned stationary days” on this Cruise. The passengers stayed on three separate ships and at a hotel in Budapest.
Cruise 5, which was addressed at [556]-[593] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 27 May 2013 upon the Scenic Sapphire.
Overall, on eight out of the ten days, which were described in the intended itinerary as cruising days, there was no cruising at all, with all touring being carried out by coach. Justin Brown’s email of 10 June 2013 recorded “eight unplanned stationary days”. The passengers were obliged to change ships on two occasions during Cruise 5, with lengthy coach trips to effect the ship swaps.
Cruise 6, which was addressed at [594]-[612] of my first judgment, was to proceed along the Amsterdam to Budapest route. The Cruise was scheduled to commence on 29 May 2013 upon the Scenic Diamond.
Overall, only two days of cruising occurred on the trip. Cruising on a third day was partial and incomplete. There were 10 days during which the passengers stayed on a ship and took bus tours. This does not include their time in Amsterdam or Budapest. The passengers stayed on two separate ships and in a hotel. They had very lengthy motor coach trips.
Cruise 7, which was addressed at [613]-[628] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 29 May 2013 upon the Scenic Sapphire.
Cruise 7 was intended to include 10 days of cruising, but instead the passengers experienced only three days of cruising. They did experience the two-day port stop at each end of the trip in Budapest and Amsterdam, which included the starting day and the finishing day.
Cruise 8, which was addressed at [629]-[654] of my first judgment, was to proceed along the Amsterdam to Budapest route. The Cruise was scheduled to commence on 3 June 2013 upon the Scenic Jewel.
In summary, passengers on Cruise 8 changed ships on two occasions and so travelled on three different ships. Instead of cruising for 10 days, they only cruised for three days.
Cruise 9, which was addressed at [655]-[682] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 8 June 2013 upon the Amadeus Silver.
The passengers on Cruise 9 were significantly disrupted. In Budapest they were accommodated in a hotel and not on a ship. Between Budapest and Nuremberg, the passengers travelled by motor coach and did not have any cruising at all. They were accommodated on two ships and did not commence any cruising until the eighth day of this planned Cruise. They only experienced four days of cruising.

Cruise 11, which was addressed at [698]-[717] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 10 June 2013 upon the Scenic Sapphire.
Overall, four days of cruising were completely lost and one day of cruising was partially disrupted. Budapest was not able to be enjoyed, nor was the vast majority of the Danube River.

Damages for Reduction in the Value of the Services (s 267(3)(b) of the ACL)

Legal Principles

The plaintiff and group members claimed, pursuant to s 267(3)(b) of the ACL, the sum of money which represented “compensation for any reduction in value of the services below the price paid”. This section is applicable because of the finding in my first judgment that the breaches of the consumer guarantees constituted a “major failure” within the meaning of s 268 of the ACL.
It is important not to overlook what a major failure is defined by s 268 of the ACL to be – that is, that “… the service would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure …”.
Where the services provided would not have been acquired by a reasonable consumer who knows of the nature and extent of the major failure, it may seem to be an entirely artificial and rather impractical notion that those services had any residual value. That is because the notion of damages which most closely approximates a major failure is the “no transaction approach” to damages. That is, but for the breach of contract or tortious duty of care, the claimant would not have entered into the transaction. Damages so assessed ordinarily result in an award which includes all monies expended on the unsatisfactory transaction and, as well, any consequential losses: see, by way of example, McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79.
However, as is apparent from the Court of Appeal’s judgment at [331], counsel for the plaintiff and group members, who does not appear on the present proceedings for the plaintiff and group members, accepted that the value of the services which were provided should be determined by reference to “market considerations”, that is, an amount a fully informed consumer would have been prepared to pay for those services.
Given this concession and notwithstanding my earlier comments, I am obliged to make the assessments on the basis enunciated by the Court of Appeal.
That basis for an award was considered in the Court of Appeal’s judgment from [327]-[335]. From those paragraphs, I derive the following:

any assessment is to be made by having regard to objective considerations and circumstances, and not to any subjective matters;

the value of the services actually supplied by Scenic should be determined by reference to “market considerations”;

a means of assessing the “market value” of the services provided would be to estimate the amount “a fully informed customer would have been prepared to pay for those services”;

a market-based assessment of the value of the services actually provided, applying objective criteria, is a matter which requires, or else ought to have as its foundation, evidence led in the proceedings.

It is also apparent that damages are assessed by reference to the value of the services actually provided and the differential between that value and the price paid for the services. It does not make any difference to that assessment which of the consumer guarantees were breached. The assessment is not increased by the number of the guarantees breached. It is therefore not necessary to identify and then separately consider each of the breaches of the consumer guarantees for each of the Cruises.
There was no appeal from the Court of Appeal to the High Court of Australia in respect of this particular aspect of damages. However, in the High Court’s judgment, in dealing with damages for distress and disappointment, which I discuss further below, neither the judgment of the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) nor the separate judgment of Edelman J drew any distinction between causes of the damage as being either a breach of contract or else a breach of the consumer guarantees set out in the ACL.
As Edelman J said at [63]ff (omitting citations):

“63 The primary species of damages for a breach of contract are often expressed as ‘expectation damage’ or as responding to an ‘expectation loss’. These expressions were relied upon by both parties to this appeal in their explanations of the nature of damages for breach of the consumer guarantees in s 61(1) and (2) of the Australian Consumer Law and the operation of Pt 2 of the Civil Liability Act on those damages. However, the expressions are problematic. In particular, they can conceal a fundamental difference between two components of compensatory damages for breach of contract, both of which are necessary parts of the compensatory goal of restoring the injured party to the position they would have been in if the breach had not occurred. Those components are compensation directly for the performance interest and compensation for consequential losses. The two components are provided for separately in s 267(3) and s 267(4) of the Australian Consumer Law respectively.
64 Where contract damages provide compensation directly based on the performance interest, that component of the award is not concerned with loss in any real or factual sense. The compensation for the performance interest, ‘by the value of the promised performance’, appears ‘as a “loss” only by reference to an unstated ought’. The aim of this component of the award is to provide the promisee with the difference between the value of what was promised and the value of what was received. The promisee had a primary right to performance of the contract so, upon termination, the law generally provides for a secondary right for the value of the performance that was not received or the difference in value due to the defect.
65 This component of compensation is contained in s 267(3) of the Australian Consumer Law, where a consumer may ‘recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services’. In contracts for the provision of a service involving pleasure or enjoyment this measure of damages can provide some compensation for the value of the lost enjoyment benefit ‘because the breach results in a failure to provide the promised benefits’. An assessment of Mr Moore's damages referable to his performance interest was remitted by the Court of Appeal of the Supreme Court of New South Wales for determination by the trial judge.
66 A promisee might also suffer true, consequential, loss from a breach of contract. These consequential losses might include economic (financial) losses to the promisee to the extent that they go beyond the value of the promised performance and are within the boundaries of legal responsibility. They can also include some non-economic losses.
67 This component of consequential loss is contained in s 267(4) of the Australian Consumer Law, a head of damages additional to s 267(3), which allows for recovery of further loss or damage for a relevant failure to comply with a guarantee as provided in s 267(1) ‘if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure’. The assumption of all the parties to this litigation has been that the damages recoverable under s 267(4) for non‑economic loss are governed by the same principles as common law damages for breach of contract.”

To the extent that these remarks dealt with s 267(3)(b), they were obiter dicta because the High Court was not seized of any issue about that provision. However, they are persuasive and form the basis for the way in which the plaintiff articulated the claims for the various heads of damages.
A similar approach can be seen in the judgment of Gageler J in Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56, where, at [61]ff (omitting citations), he said:

“61 The ‘expectation interest’ sometimes identified as protected by an award of damages for breach of contract at common law is a reflection of that ruling principle and of its corollary. The expectation interest is no less, but no more, than the interest protected by seeking ‘to give [a] promisee the value of the expectancy which the promise created’. In other words, it is the interest of the injured party ‘in having the benefit of [the contractual] bargain by being put in as good a position as he [or she] would have been in had the contract been performed’.
62 The common law does not compensate an injured party for the non‑fulfilment of an expectation which could not reasonably be supposed to have been within the contemplation of other parties when they made the contract as the probable result of breach. That limitation can for present purposes be put to one side.”

Evidence

The plaintiff called Ms Dianne Butler to give expert evidence on the claim made pursuant to s 267(3)(b) of the ACL for the difference in value between the services that ought to have been provided and those that were actually provided. It will be convenient to describe this as the “lost value claim”. Ms Butler described herself as a tourism management and marketing expert. She had experience in developing and designing packaged tour itineraries for sale to Australian travellers and reviewing the performance of these packages. This included fixing the price at which the packages would be sold. She had also held teaching positions in the marketing discipline.
Ms Butler’s initial opinion was that none of the Cruises, as they actually took place, would be a marketable tour package. She said that a fully informed, reasonable consumer would not purchase any of the Cruises as a tour package – accordingly, on her first methodology, she concluded that the Cruises would have no (or only nominal) market value.
She noted that this opinion was based upon the assumption that the fully informed consumer would be someone who was interested in undertaking a river cruise. Ms Butler said, and I accept, that one significant difference between river cruises and coach tours was that cruise holiday operators promote the journey on board as being part of the holiday experience, whereas the coach holiday provider concentrates their marketing efforts on the destinations, sight-seeing highlights and free time.
Ms Butler articulated an alternative methodology for arriving at the lost value claims. For this purpose, Ms Butler assumed that the consumer was indifferent to alternative holiday offerings but was willing to accept a tour that was not marketed as a luxury cruise package, or a luxury coach holiday, but, rather, was marketed having regard to price and was targeted at the consumer who would accept the package for what it was.
On the alternative methodology, Ms Butler engaged in the assessment of the daily cost of the cruise calculated by reference to the number of nights spent on the cruise, the daily cost of coach travel and the making of appropriate allowances for cabin supplements. She then applied a discount to the calculated price to reach the price at which a package could be marketed to a fully informed consumer. In so doing, Ms Butler was offsetting a negative experience on one day against positive experiences on another to determine the value of the package as a whole.
Although criticism was made of Ms Butler’s experience, and the fact that she had not engaged very much in direct selling of packages to consumers, I am satisfied that Ms Butler had adequate expertise and experience, and that her alternative methodology by which she calculated various values reflected one reasonable way of attempting to ascertain a market value of the services which were in fact provided by Scenic on the Cruises.
The defendant called Mr Phillip Hoffman as an expert witness on the lost value claim. Mr Hoffman had decades of experience in the travel agency business. His own travel agency is apparently one of the largest independent travel agencies in Australia, selling different brands of river cruising travel and all forms of holiday travel packages. He had put together specialised travel packages and conducted them. He had personally taken, so he said, river cruises including upon a Scenic ship.
The evidence showed that Mr Hoffman’s business had sold Scenic Tours and had been remunerated by a commission calculated as a percentage of gross invoiced amount. Other payments were also received by way of incentive and override conditions. His business continues to market Scenic Cruises.
Mr Hoffman was a problematic expert. Whilst he was undoubtedly a very well‑experienced travel agent, with a large and successful business, his report did not record a number of matters of significance to the Court in assessing the weight to be given to his expert opinion, and its value.
These matters were:

although his report said that he had travelled on a river cruise with Scenic and a number of other operators, he did not say that he had travelled for free as a guest of Scenic for a part only (about one third) of the scheduled river cruise. He did so accompanied by a large number of his fellow senior staff. Although his evidence suggested otherwise, I am not persuaded: that the circumstances of this river cruise would have been at all comparable to those of a consumer who had booked a holiday package; and that such an experience would have given him the same view of the passenger experience as a passenger paying for an entire package would have received;

his report did not reveal that his business had a commercial relationship with Scenic which had, prior to the preparation of his report, included transacting many millions of dollars of business with Scenic, for which he received various forms of commission. That business relationship was ongoing at the time he prepared his report and gave evidence;

Mr Hoffman did not reveal, until the course of cross-examination, that in preparing his report he had obtained considerable assistance from one person in particular in his office. This was a Ms Nunn, who was a manager of one of his retail travel agencies. Ms Nunn was provided with drafts of Mr Hoffman’s reports and, over a period consisting of about 41 hours, read them, discussed them with Mr Hoffman and suggested changes which ought to be made to the contents of his report. Mr Hoffman accepted that his report was the product of work which both he and Ms Nunn had done together.

Whilst the evidence revealed that Ms Nunn had been an employee of Mr Hoffman’s business for a reasonably long period of time, there was no evidence about her qualifications, her training or her experience more generally in the travel industry. There was no curriculum vitae tendered from which these matters could be judged.
As well, what is in effect the joint authorship of Mr Hoffman’s report by Ms Nunn presented a considerable hurdle in assessing which expert opinions expressed in it were Mr Hoffman’s or whether he found himself giving evidence in respect of opinions which he had not formulated and expressed.
A further difficulty with Mr Hoffman’s report was that it did not make any detailed reference to the way in which he went about assessing the price at which each Cruise in the circumstances which occurred could be priced for sale. In assessing the price for each Cruise, Mr Hoffman broadly followed a similar approach. He set out, or referred to, the itinerary and then summarised what had occurred including by drawing attention to the age of the ships which were used. He then set out a chart which allocated against each date of the scheduled Cruise whether there was any difference to the itinerary, whether the itinerary and change was minimal or major. Finally, he stated his opinion as to what price a package could have been sold for to a relevant consumer.
No other explanation of the price at which the package could be offered was made.
In cross-examination, it became apparent amongst other things, that in reaching the price, Mr Hoffman did not take into account where the ship was in fact moored when he expressed his opinion. On some Cruises, for example, the ships were moored in industrial locations which were difficult to get to or perhaps unpleasant by reason of sight and smell. This does not seem to have been taken into account by Mr Hoffman. In addition, in coming to a valuation, Mr Hoffman counted each of the 15 days of a Cruise as being equally valuable. He accepted, as the fact, that the first day of a Cruise, which is the day upon which passengers embarked on the ship, commenced generally late in the afternoon and consisted of a welcome for the guests and a meal, but no other activities. He also accepted that the last day of the Cruise consisted of the passengers being provided with breakfast and then disembarking, usually by 10am. The value of the services received on those two days cannot be regarded as being equal to those received on a more typical cruising day. The market value of the services was reflected inappropriately in this way.
This approach is compared with Ms Butler’s, who approached her valuation by counting each night of the Cruise and valuing the services on that basis. It seems to me that Ms Butler’s approach is much more likely to result in an accurate determination of the true market value of the services that were provided.
Mr Hoffman described Cruises 3, 4, 8 and 11 as being capable of being sold to clients who were hunting for an exceptional bargain and good value and explained that the target market was not the same market as Scenic would normally target its cruises. His method of evaluating a price for those Cruises was essentially aimed at pricing the package as a whole. He explained his methodology by saying:

“Q. You don’t come up with a price for individual days?
A. No, not individual days. I price the – each, each itinerary with, with my experience of each day, what was delivered and put a rating there and came up with a final answer for the – that’s how we came up with the pricing for the tours.”

That method was challenged in cross-examination, in circumstances where he had not identified a comparable product from a travel provider and had never sold a product like those Cruises to any customer.
Mr Hoffman also agreed that he would be very careful about, and would not enjoy, selling Cruises 3, 4, 8 and 11 because there is a risk that the purchaser would be dissatisfied by the experience. He was asked these questions and gave these answers:

“Q.   … So, when you say you could sell this package to a very low-cost budget traveller or a market similar to that of …, the ‘could’ that you use, do you mean by ‘could’ that there is some real possibility that someone would buy it?
A.   Yes. Yes.
Q.   But you’re not saying that it would be sold to any particular segment of the market?
A.   Well, a person who’s got a very tight budget, you know, and, and they want to spend a certain amount of money, whether it’s on the flight or, you know, and accommodation and whatever, yes, they could buy it.
Q.   But just coming back to it, ‘could’ you mean in the sense of a real possibility but no higher?
A.   Yes. Yes
Q.   But no higher?
A.   No higher.”

Mr Hoffman described Cruises 1, 2, 5, 6, 7 and 9 as cruises that “held a certain [reasonable] value level” and proceeded to value them on a “day-by-day” basis. He considered those Cruises as being capable of being sold to a similar segment of the market as that normally targeted by Scenic.
The task which both Ms Butler and Mr Hoffman essayed in accordance with the Court of Appeal reasoning was necessarily imprecise. That is because they were both fixing a figure for a product which had never been marketed by anyone, and which no-one had tried to sell in the marketplace.

As will become apparent, where there remains, after a joint conference and the preparation of a joint report, significant differences in the values reached by Ms Butler and Mr Hoffman for Cruises 3, 4, 6, 7, 8 and 11, I prefer the opinions expressed by Ms Butler rather than those contained in Mr Hoffman’s report. I was unimpressed by Mr Hoffman’s approach or his performance as a witness.
A further matter which became apparent in seeking to understand Mr Hoffman’s expert opinion was that some of the prices for the Cruises just mentioned were fixed by him on the basis that the Cruises could be sold at those prices in circumstances where the prices were described as being “loss leader” prices.
Mr Hoffman told the Court that in using that term he intended to convey that, from the marketing perspective, it was a price offered to attract purchasers to discuss taking a tour at that price, at which time it was often the case that customers would be sold, and be happy with, a different and more expensive product. He was asked these questions and gave these answers:

“Q.   The word ‘loss leader’ as you were just asked about, you described a process whereby a customer may be attracted by that low price and then the agent or the supplier, perhaps, attempts to upsell them to more valuable product once they’ve got them in the door looking at their products – is that right?
A.   Yes. Yes.
Q.   But, if they don’t manage to upsell them, then it’s a loss leader because it’s likely that the supplier would make a loss on that individual passenger?
A.   Correct.”

After both Ms Butler and Mr Hoffman had given evidence, they met in joint conference in accordance with an order of the Court and produced a joint report. In that joint conference, as recorded in the joint report, they sought to reach an agreement as to the market value of the Cruises on the basis of a perceived similarity between Mr Hoffman’s methodology, as it had been revealed in cross-examination, and having regard to notes which he had made about which he was asked in cross‑examination, and Ms Butler’s second, or alternative, methodology.

Discernment

The joint report recorded that the experts had reached an agreement with respect to Cruises 1, 2, 5 and 9. I accept the valuation of these Cruises, as agreed by the experts.
Cruises 3, 4, 6, 7, 8 and 11 were cruises in respect of which there were quite significant disruptions. They were cruises in relation to which Ms Butler thought that there was no real market for them if marketed as a cruise package. Mr Hoffman agreed with that opinion but expressed the view that there was a market for a very low-cost budget traveller who might be prepared to pay the price which he had fixed. In the case of these Cruises, accepting the fact as the experts agreed, that such a package had never been marketed by anybody, and accepting Mr Hoffman’s approach that he was merely contending that the price he suggested was a price at which such a package might possibly be able to be marketed, I prefer to take the lower valuation proffered by Ms Butler for these Cruises on the basis of those matters and because, generally speaking, I preferred her evidence and her more logical and careful approach.
It is appropriate to record these conclusions in a table, which I now set out.

Cruise No.

Base Cabin Price

Expert Opinion – Market Value

Court Finding

% Value Received

Damages

1

$7645

$2905

$2905

38%

62% of price paid

2

$7195

$4290

$4290

60%

40% of price paid

3

$6495

$1299 - $1599

$1299

20%

80% of price paid

4

$7195

$719.50 - $1999

$720

10%

90% of price paid

5

$7195

$2439

$2439

34%

66% of price paid

6

$7195

$2249 - $3580

$2249

31%

69% of price paid

7

$7195

$2878 - $4199

$2878

40%

60% of price paid

8

$7195

$719.50 - $1599

$720

10%

90% of price paid

9

$6495

$2999

$2999

46%

54% of price paid

11

$7195

$1654.85 - $1999

$1655

23%

77% of price paid

Cruise No.	Base Cabin Price	Expert Opinion – Market Value	Court Finding	% Value Received	Damages
1	$7645	$2905	$2905	38%	62% of price paid
2	$7195	$4290	$4290	60%	40% of price paid
3	$6495	$1299 - $1599	$1299	20%	80% of price paid
4	$7195	$719.50 - $1999	$720	10%	90% of price paid
5	$7195	$2439	$2439	34%	66% of price paid
6	$7195	$2249 - $3580	$2249	31%	69% of price paid
7	$7195	$2878 - $4199	$2878	40%	60% of price paid
8	$7195	$719.50 - $1599	$720	10%	90% of price paid
9	$6495	$2999	$2999	46%	54% of price paid
11	$7195	$1654.85 - $1999	$1655	23%	77% of price paid

It is to be observed from the table set out above, that any calculation in monetary terms is based upon the price at which a cabin at the lowest end of the range of available cabins has been sold for the particular Cruise. This base cabin price is then increased by various supplements to reflect an improvement in the deck upon which the cabin is located, and the nature and size of the cabin. Occasionally, it also reflects the positioning of the cabin on the ship.
Except for Cruises 3 and 9, on each other Cruise there were a large number of types of cabins. On Cruises 3 and 9 there were fewer types of cabins. The variation in the published or purchase price could be quite significant. By way of example, on Cruise 7 the base cabin was sold for a published price of $7,195. By the time one reached the highest grade of cabin, a Royal Suite on the Danube Deck, the published price for that cabin was $11,790.
Notwithstanding this quite wide range of published prices, both experts expressed the view which I accept that the percentage difference between the base cabin price and the value of the services calculated by the experts could be applied properly to each grade of cabin, and the price paid by the consumer so as to reflect the market value of the services in fact provided.
In other words, if, as is the case with Cruise 1, the value of the services provided for the base cabin was 38% of the base cabin price, then that percentage could be applied to all cabin grades to ascertain the value of the services provided to occupants of those other cabin grades.
As is also apparent, in accordance with the proper approach to the calculation of the lost value damages claims, the experts in their evidence and my findings bear relation only to the objective criterion, i.e., the value of the expected services on one or other Cruise when compared with the value of the services that were in fact provided.
Since this part of the assessment of damages has only had reference to objective and not subjective considerations, the determination of the value of the services which were provided, expressed as a percentage, is one that can be applied to each passenger on the same Cruise, i.e., the percentage determined in this judgment is applicable to all of the passengers who travelled on the particular Cruise.
The claimants also claimed interest with respect to these damages. In my first judgment, I held that Mr Moore was entitled to interest on the sum I determined represented his lost value. Any such interest is awarded in accordance with s 100 of the Civil Procedure Act 2005. I held that interest should be calculated not from the time when the money was originally paid, but rather from when the major failure occurred and the loss of value was capable of being ascertained, because it was at that point in time when compensation would notionally have fallen due to be paid. That date is the last day of the scheduled itinerary of each of the cruises. This finding was not the subject of any appeal. Nor have any submissions been made to me at this hearing that a different approach ought to have been followed. It follows that for each award of damages for lost value, a claimant is entitled to interest calculated in this way.

Damages for Distress and Disappointment (s 267(4) of the ACL)

The second part of the damages claim relates to distress and disappointment.
In accordance with the decision of the High Court in this matter, damages for distress and disappointment are recoverable by the plaintiff and the group members. Although the basis for the damages is a breach of the consumer guarantees contained in the ACL, the assessment proceeds in accordance with the principles developed for breach of contract cases.
The damages awarded in “holiday cases” such as this one compensates a plaintiff for what they were promised when the expectation of a happy, joyous, peaceful and contented holiday has been unfulfilled. What is involved is a comparison between the expectations of the individual traveller and the reality of what that traveller was provided: see the High Court’s judgment at [46].
Although in a shorthand way, these damages are described as being for “distress and disappointment”, the authorities suggest that such an award of damages is much broader.
In Jarvis v Swan Tours Ltd [1973] QB 233 (“Jarvis”) at 238, Lord Denning MR said relating to a breach of contract this:

“If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. … Take the present case. Mr Jarvis has only a fortnight’s holiday in the year. He books it far ahead, and looks forward to it all that time. He ought to be compensated for the loss of it.
…
… Mr Jarvis’s fortnight winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and back and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendants said he would have. He is entitled to damages for the lack of those facilities, and for his loss of enjoyment.”

Edmund Davies LJ said at 239 in Jarvis, that the Court was bound to “contrast the overall quality of the holiday so enticingly promised with that which the defendants in fact provided”.
His Lordship had earlier said of Swan Tours at 239:

“They assured and undertook to provide a holiday of a certain quality with ‘Gemütlichkeit (that is to say, geniality, comfort and cosiness) as its overall characteristics, and ‘a great time’, the enjoyable outcome which would surely result to all but the most determined misanthrope.”

In both Baltic ShippingCompany v Dillon (1993) 176 CLR 344; [1993] HCA 4 (“Baltic Shipping”) and in its judgment in this case, the High Court of Australia has described the damages by the rubric “damages for distress and disappointment”. At [46] of the High Court’s judgment in this matter, the plurality said:

“The exception to the general rule relating to promises of enjoyment, relaxation …, breach of which results directly in disappointment and distress, compensates a plaintiff for what he or she was promised where the expectation of a peaceful and contented holiday has been unfulfilled.”

In Watts v Morrow [1991] 1 WLR 1421 (“Watts” ), Bingham LJ included these concepts as falling under the head of damages for distress and inconvenience caused by a breach of contract: distress, frustration, anxiety, displeasure, vexation, tension and aggravation.
Mason CJ in Baltic Shipping, citing Watts with approval, used the phrase for damages as being “… for distress, vexation and frustration.”
This review of the authorities shows that what is to be assessed under the heads of damages for distress and disappointment ranges across all kinds of mental distress, inconvenience, anxiety, disappointment, frustration or vexation arising because the services to be provided were not, or else as here, the purpose of the acquisition of the services failed. As well, the group members did not receive the result of the services which they were reasonably entitled to.
Whilst each group member is entitled to have their damages assessed on an individual basis to reflect their particular experience, distress and disappointment, it is nevertheless appropriate to have regard to the objectively determined facts about the extent to which each cruise failed to achieve the purpose and result guarantees.
The commencement point of this analysis is to identify the services which Scenic promised to supply. In the case of the plaintiff, Mr Moore, the Court of Appeal said at [188]ff (omitting citations):

“188 Mr Moore, having read the Brochure and made his booking and reservation on the faith of it, as Scenic intended, could reasonably expect that Scenic would provide him with the benefits and facilities associated with Cruise 8 as described in the Brochure. Since Mr Moore also read the Terms and Conditions he presumably understood that if the expected benefits and facilities were not supplied Scenic’s contractual liability to him was, or might be severely limited. But as has been noted that issue is distinct from determining the benefits and facilities Mr Moore could reasonably expect Scenic to supply by reason of his booking and payment for Cruise 8.
189 The primary Judge described the Cruise Services to be supplied to Mr Moore as:
‘providing services which were recreational and were constituted by a river cruise which included luxurious all inclusive accommodation, dining and entertainment, travelling along European rivers and stopping at certain destinations’.

This description omits any specific reference to Cruise 8, presumably because his Honour wished to frame the finding as applicable not only to Mr Moore but to all Group Members.
190 A more precise description of the services to be provided by Scenic to Mr Moore in my opinion is:
the benefits and facilities of Cruise 8 set out in Scenic’s Brochure, specifically at pages 40-41 of the Brochure.

For the purposes of Mr Moore’s case nothing turns on the differences between the primary Judge’s formulation and what I consider to be a more precise formulation of the services to be supplied by Scenic to Mr Moore. The more precise description is consistent with the definition of ‘services’ in the ACL set out earlier in this judgment.”

In my first judgment, I noted that the Brochure published by Scenic was the only document which comprehensively described the services which Scenic was promoting and which it “enticingly” was to provide: at [371].
I set out, and adopt without repetition, from [312]-[342] the relevant passages from the Brochure which cast light on the expectations from Mr Moore and, in the absence of any specific evidence to the contrary, each of the group members. Mr Moore and the group members were entitled to expect that the particular river cruise which they chose would be: a “once in a lifetime cruise along the grand waterways of Europe”; one where the passengers would be “immersed in all-inclusive luxury”; “a truly unforgettable” journey; and one where the passengers would be provided with “meticulous attention to detail, first-class service and intimate personal touches”.
Passengers were led to expect that they would experience the “ultimate river cruise experience” during which they would enjoy a level of inclusive “luxury and service which is unsurpassed on the waterways of Europe”.
Other features were also emphasised: the number of different cafes and restaurants available on board where passengers could choose to eat; the range of indoor and outdoor viewing locations; and the availability at all times of the “sanctuary of your own private suite or stateroom”, which, in some cases, included an exclusive private balcony which was “perfect” for viewing in “all kinds of weather”.
In assessing this part of the damages claim, I have also had regard by way of context and background to some evidence given by Ms Butler. She drew attention to a widely published theory about the purchase of holiday experiences and that for each individual traveller in such purchases there were five stages.
First, dreaming – during which a person thinks about holidays and starts to actively consider where to go, a phase that can take place over many years.
Secondly, planning – where a person starts collecting information and seeking recommendations, speaking to people and researching online. Again, this phase can be lengthy.
Thirdly, booking. In an appendix to Ms Butler’s report, it is noted that most European river cruise holidays are booked well in advance, which is due to their limited capacity and limited number of sailings. A high proportion of these cruises are booked between one and two years in advance.
Between booking a holiday and experiencing it, it is noted in that appendix that, there can be expected to be a heightened anticipation. As the holiday approaches, the traveller may undertake more research on their holiday destinations and the closer they get to their holiday, the more their excitement and anticipation increases.
Fourthly, experiencing. In addition to the experiential elements of the holiday, long-haul travel adds an element of travel which heightens the expectations of Australians and other travellers that must come from far away to experience their holiday.
Fifthly, remembering – which is the last stage. People, it is noted, expect to share memories between themselves, their friends and family and have an expectation that those memories will be good.
Ms Butler also noted, and I accept, the opportunity for travellers in undertaking any holiday is to:

“… do so for enjoyment, self-fulfilment, self-development and relaxation, to spend quality time with their partner or close friend. Such holidays fulfill a sense of reward and entitlement after hard work or upon retirement. Part of their investment in terms of time and money is to generate lasting, memorable experiences which they can share with others upon their return. Additionally, … whilst on their cruise, they can share such experiences with like-minded co‑travellers.”

I note that the experience of a holiday, particularly for people who travel considerable distances to Europe to take a particular holiday experience, here travelling on river cruises in Europe to well-known and popular destinations, has the consequence that they are spending time away from home, family, friends, familiar surroundings and their other interests. Whilst, of course, this is, or can be, a negative influence in making a decision to travel or select a particular holiday package, the expectation is that the selected holiday will more than compensate for that negative experience. When that expectation is not met, the negative experience remains.
In my first judgment, I described Mr Moore’s personal experience at [74]-[134]. It is unnecessary to repeat all that was there written. I do note, however, that in Mr Moore’s case there were a number of particular features which were relevant to my assessment of his claim for damages for distress and for disappointment which may also be relevant as part of the integers in the circumstances of the other group members. They included:

Mr Moore had not travelled overseas extensively prior to this trip;

Mr Moore and his wife were interested in a Scenic river cruise because they particularly liked the idea of having to unpack their belongings once only and then still being able to see a number of locations in Europe by cruising along the waterways;

Mr Moore had a particular physical disability which made it difficult for him to spend extended periods of time sitting down, particularly in confined spaces;

Mr Moore had taken four weeks long service leave to go on the cruise;

Mr Moore and his wife wished to enjoy relaxing on their cabin balcony; and

Mr Moore and his wife were expecting a relaxed environment without “early starts and packing and unpacking to meet their deadlines to link up with other ships and transport”.

The evidence of the various group members, some of which was corroborated by contemporaneous letters, shows that there may have been various subjective matters in addition to those already touched upon which may also be relevant to the assessment of damages for distress and disappointment, and which are intrinsically subjective considerations. These include:

whether the holiday was booked for or as a part of a particular celebration or with respect to a special occasion;

whether the plaintiff or group member was a first-time traveller, an infrequent traveller or a person accustomed to regular holidays;

whether the cruise was selected because of the particular need of a traveller or perhaps because of a physical disability;

whether the anticipated itinerary was desired because of a family connection to one or other place on the itinerary, or some particular interest in items or locations along the way, or the route itself;

whether the traveller had time constraints for that holiday so that it could not be replicated within a reasonable time after the trip: i.e., it was the traveller’s one and only chance to embrace the itinerary or the cruise;

whether, in a holiday cruise market with alternative offerings, there was any particular reason why this cruise was selected;

whether the cruise was to be taken with family and friends in circumstances where common arrangements needed to be made to enable the travelling party to travel on that cruise; and

whether the cruise was the whole or substantial part of the booked holiday, or whether it was a smaller component part of a longer holiday.

All of these matters, which may exist in some but not other cases, point to the fact (which is undoubted in the authorities) that the assessment of damages for distress and disappointment in all of the circumstances is a very fact-rich and individual assessment.
That it is an individual assessment is readily apparent from the decision of the UK Court of Appeal in Milner v Carnival plc [2010] EWCA Civ 389; [2010] 3 All ER 701 (“Milner”), which found that a husband and wife travelling together on the same holiday cruise can be awarded different sums of money for damages for distress and disappointment depending on the particular circumstances of their experience. There, at [55], Ward LJ held that Mrs Millner’s distress was more acute than that of her husband and, accordingly, she was awarded a greater sum of damages for distress and disappointment.
It is convenient to note a general description given to the nature of these damages. In Milner, the Court considered whether there was comparability between the awards for damages for distress and disappointment with those of psychiatric damages in personal injury cases. It pointed out that awards in personal injury cases are not entirely comparable to damages for distress and disappointment. At [58] Ward LJ said:

“Physical inconvenience and discomfort is necessarily ephemeral. Disappointment, distress, annoyance and frustration are likewise the feelings one experiences at the time and which last painfully for some time thereafter. But one is not disabled, the psyche is not injured and one gets on with life. Every time one thinks back, one relives the horror but the reliving of it is transitory.”

Scenic called a number of passengers to give evidence of their experiences on the Cruises. These passengers gave evidence that, speaking generally, they had not been particularly upset, or had not suffered disappointment either at all or, if they did, it was not to the same extent as the claimants whose damages I have been asked to assess. Whilst I entirely accept that these witnesses were giving their evidence to the best of their recollection, I am of the view that their evidence does not have any ameliorating effect when assessing the damages for distress and disappointment in the case of each claimant.
That is for, at least, two reasons:

each claim is assessed individually by reference to that individual’s expectation, their particular circumstances, and the experience which they individually had. What was a disappointment for one traveller to miss out on a particular experience may have been a blessing for another traveller who felt relief when the experience was not available; and

some passengers are more robust and resilient than others when coping with adversity, and some may have had much lower expectations. Hence, the extent of distress and disappointment will be quite different.

As I recorded in my first judgment, damages for distress and disappointment are able to be assessed at large. They are not constrained by the application of the CLA.
I also noted in my first judgment at [914]-[917] that I do not regard it as correct that an award for damages for distress and disappointment should be only made in a token or nominal sum. The assessment of the sum for this head of damages is undertaken in the individual case by an evaluative process applying a sense of fairness and justice to the circumstances proved.
The claimants seek an award of interest on any damages awarded for distress and disappointment. As is apparent, although the distress and disappointment occurs during the cruise and then continues after the cruise has ended for varying periods depending on the individual, and the impact which the breach of the consumer guarantees have had on that person. However, it is apparent from the evidence that the great bulk of the distress and disappointment occurs during the and immediately after the cruise finishes.
An award of interest is itself an award of damages which serves to compensate a claimant for not being paid their damages at the time their entitlement arises but rather at a later time when the damages can be quantified by a Court judgment, and to ensure that the claimant is not disadvantaged by the inevitable delay between their entitlement arising and it being quantified by court proceedings: see Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15.
The nature of damages awarded for distress and disappointment which is an accumulating concept means that one cannot be precise as to precisely when and in what sum the damages were accruing. A broad-brush approach to the award of interest is appropriate. In my view, claimants who establish an entitlement to an award of damages for distress and disappointment are entitled to interest on 90% of that sum in accordance with the full rate prescribed by s 100 of the Civil Procedure Act from the last day of their cruise until judgment on their individual claim is entered, or else the Court orders payment of their damages (in circumstances where an individual judgment may not be entered).
This approach recognizes that most but not all of the damages will have accrued by the end of the cruise, but some will accrue after the cruise ends and over the following years.
It is now necessary to consider the individual circumstances and to make an assessment of the value of damages of each of the individual claimants whose matters were heard by the Court in the course of the current stage.

Cruise 1 – Mr Richard Britten

Mr Britten travelled on Cruise 1 which commenced on 19 May 2013. At the time of travelling, he had retired. He travelled with his wife, Lesley. They booked the Cruise about 12 months before they travelled. Mr Britten paid for a balcony suite (Category P) which cost about 23% more than the base cabin rate.
Mr Britten’s cruise was part of a longer holiday which included spending time before the Cruise in Barcelona and, after that, by taking another cruise on the Mediterranean. After the Mediterranean cruise, Mr Britten travelled to Paris for a few days, toured Normandy and the Somme battlefields, and then connected to the Scenic Cruise upon which they had booked. After the Scenic Cruise they immediately flew home.
Mr Britten booked Cruise 1 in particular so that he would be able to celebrate his wedding anniversary during it. He wanted it to be a special holiday with his wife to celebrate their marriage.
Prior to travelling, Mr Britten had undergone two total knee replacements and he found it difficult to walk a lot or to travel in uncomfortable and cramped vehicles such as buses.
He had previously enjoyed a Scenic cruise along the Rhine, Main and Danube Rivers. On that cruise, he had had no difficulty with his knees and had been able to unpack his suitcase just the once and then experience a two-week cruise in a relaxed environment.
In addition to wanting to enjoy the luxury, the five star standard of service and the spacious and comfortable staterooms which were promised in the Brochure, Mr Britten was particularly looking forward to a relaxed pace of sailing with views of stunning landscapes, multiple dining options whilst on board to be enjoyed in a large dining room with a relaxing atmosphere and ambience, and a variety of interesting excursions, particularly a visit to the Camargue to see birdlife because he and his wife were keen bird watchers.
Mr Britten and his wife had never been to southern France before and they were looking forward to experiencing it by a relaxing river cruise in what Mr Britten regarded as a famous wine-making region. He imagined himself enjoying the wines of the region while calmly sailing down the river.
As earlier mentioned, it was particularly important to Mr Britten that he stay in the same accommodation throughout the Cruise without having to frequently unpack and re-pack his luggage.
Mr Britten had been a restauranteur at some time prior to his retirement and, accordingly, enjoyed high quality food and dining. That was not something which he had the opportunity to experience where he lived in a relatively small town, but it was something that he was particularly looking forward to enjoying.
The Cruise was, for Mr Britten and his wife, a very expensive purchase and in order to fund the trip they had borrowed money by means of a reverse mortgage on their home. Mr Britten justified this by saying that given the advancing ages of himself and his wife, he thought it was important that they enjoy themselves while they were still able.
He and his wife were looking forward to the Cruise and during the 12 months after it had been booked, they spoke with a number of friends and members of their family about their excitement.
The Cruise was not a happy experience for Mr Britten. His evidence, as set out in his affidavit of 15 May 2015 (which I accept), set out in detail the experiences which he and his wife had on the tour. Mr Britten was particularly disappointed that two excursions which had been much anticipated did not occur. The first was a canoe trip in the Ardeche National Park which did not happen because of the transport arrangements at the time. The second matter was that because of his discomfort, which had accumulated over the many hours of bus travel during the course of the holiday, he did not feel able to make the 7½ hour return bus trip to experience the Camargue National Park which was, because of its birdlife, something he had been particularly looking forward to.
For Mr Britten, when staying at hotels chosen to substitute for the Scenic ship, the food on offer was of a poor quality. There was a requirement to queue up for buffet food which was sometimes cold; he and his fellow passengers were seated in small rooms which they had to vacate quickly to free up space for other passengers to eat; and the timing, particularly the lateness of arrival on board the Scenic ship on various evenings, because of the extensive bus travel, meant that the atmosphere and mood during meals on the Cruise was not at all congenial. Mr Britten accepted that the food on board the ship was of much better quality than at the hotels. He found the atmosphere stressful due to the rushed nature of the meals and the fact that they came after long and uncomfortable bus journeys.
Mr Britten particularly found, at the hotel at Avignon, that he had no time for a bathroom break before the meal was served, and that he had to attend that meal even before his luggage had been delivered to his room and he had had an opportunity to rest and refresh himself. It made him feel stressed and upset. The hotel rooms were of a poor standard.
One of the things to which Mr Britten had been looking forward was the views of the countryside as the Cruise proceeded. When he was on board the ship and in the balcony suite for which he had a paid a significant upgrade in the base cabin price, Mr Britten found that the views were the same for days on end, and he was very dissatisfied that he could not see parts of France that he had researched from cruising along the river.
The buses that were used throughout the Cruise were of a very poor quality, with poor suspension and lacking air-conditioning or fresh air.
In short, Mr Britten was extremely disappointed with the Cruise which for him had been transformed into a completely different unenjoyable experience.
He said, and I accept, that he had expected to receive a package through which he could explore southern France in a luxurious and comfortable environment, which would leave him feeling relaxed at the end of the trip – and he did not receive that at all.
I accept the following evidence which he gave by affidavit:

“74   I was… completely dissatisfied with how Scenic provided information about the disruptions throughout the cruise. There was a constant lack of communication about what would be coming up in the following days. At no stage was I told of the full extent of the changes that would be taking place for the remainder of the trip. It was very frustrating as I felt like I was being strung along.
75   As a result of these issues, through the cruise I became progressively more disappointed with what I was receiving. My mood deteriorated and each new disruption felt like it was adding to the ordeal.
76   As I was unhappy, I also did not feel like I was enjoying any part of the cruise. I could not just forget about the disruptions for a few hours while participating in an excursion, as I had such a strong feeling of disappointment that I was not getting what I expected and paid for. I could not extricate myself from the misery of the whole experience.”

Having regard to the services which were in fact provided and the extensive disruptions of this Cruise, Mr Britten’s feelings were entirely understandable and justified. I accept them.
Since returning home, Mr Britten’s feelings of disappointment have not diminished over time and he continues to have ongoing negative memories.
Because of the way the trip was funded, he feels disappointed and out-of-pocket. As he said, “[e]very time I think about my finances, I remember all of the money which I wasted on Cruise 1 and the fact that I am still paying for it”.
Mr Britten would not have purchased this Cruise had he known in advance what was to occur.
I would assess damages for Mr Britten’s disappointment and distress in the sum of $7,500.

Cruise 1 – Mr Peter Davis

Mr Davis is a man in his early 70s who, although retired, undertakes some part‑time work. He booked, together with his wife and four other friends, on Cruise 1 about seven months or so prior to the commencement of the Cruise.
The group of people with whom he was travelling, a total of six, had travelled together as a group prior to this occasion, and had met some years earlier while undertaking a river cruise.
Mr Davis and his wife travelled to the Cruise via London where they spent a couple of days. After the Cruise concluded, they embarked on a coach tour organised by Scenic in Spain and Portugal following which they flew to Switzerland and embarked on a seven-day train tour around Switzerland.
Cruise 1 was the first time after his retirement that Mr Davis had undertaken a trip overseas from Australia.
Because of previous river cruising experiences, Mr Davis and his wife had found travelling along the river with everchanging landscapes and different tours available along the way to points of interest to be very enjoyable and very relaxing experiences. It was these enjoyable and relaxing experiences that Mr Davis was looking forward to on Cruise 1.
At the time of booking Cruise 1, Mr Davis was planning to retire and was looking forward to it as a post-retirement reward. Because Mr Davis was retiring, he regarded the Cruise as a very expensive purchase, but he budgeted for it and saved for some time, and it represented a reward to him upon his retirement after a lifetime of hard work.
He accepted that he was paying a premium price in booking a cruise with Scenic but justified that to himself on the basis that he would be receiving a top‑quality product proportionate to the price that he was paying. One of the reasons that Mr Davis thought it worthwhile to pay a premium to travel on Cruise 1, was:

“…to experience a top quality itinerary together with the luxury of cruising to a new destination every day. It was important to me that the locations came to me, as this meant I did not have to spend time moving, and that time could be better spent relaxing on board the cruise and exploring the new cities I was in.”

Two particular excursions, the kayaking trip in Viviers and the trip to see birdlife, including flamingos, on the excursion to the Camargue, were trips that Mr Davis was particularly looking forward to.
Because Mr Davis was embarking on a two-week coach tour through Spain and Portugal after Cruise 1, it was important to him to have a relaxing and comfortable cruise beforehand. He wanted to completely switch off and relax throughout the 14 days of the Cruise.
One of his particular expectations in choosing Cruise 1 was that it was his preferred style of travel – that he would be able to unpack his bags once and stay in the same accommodation. He found this to be his preference since first taking a cruise.
He described his expectation in this way:

“I was greatly looking forward to enjoying absolute relaxation and a slow-paced cruise. I wanted to relax while I watched hundred-year-old buildings pass by, as well as the everchanging landscape and scenery, which I envisaged would add a wonderful French flavour to the overall cruise experience.”

As earlier noted, this was the first holiday trip for Mr Davis after his retirement. He gave this evidence about his anticipation, which I entirely accept:

“54 I was especially excited, as it was the first holiday I was to embark on following my retirement. Once I had retired, I was looking forward to the cruise as my opportunity to unwind without thinking about work. This also led me to feel very proud, because I was celebrating years of hard work with what I considered to be a well-deserved and highly luxurious holiday.”

Mr Davis became more excited about the Cruise as it approached.
Mr Davis was disappointed and found the Cruise to be very dissatisfying. Most of all, he had expected to receive a cruise but found that there was barely any cruising at all. He had expected to unpack and pack his bags once and stay in the one place of accommodation, but the Cruise did not permit this. This was particularly important to him in advance of a coach tour in Spain and Portugal.
He expressed his disappointment in this way – which I accept:

“92   The cruise did not allow me to be rested before the next leg of my trip. Instead, I felt unnecessarily exhausted, unnecessarily inconvenienced and I felt very deceived, which all led to complete disappointment.
…
95   When I think about my time on the cruise, I was disappointed that I was unable to relax and enjoy the simplicity of what I had paid for because of the constant unpacking, packing, and moving around. This caused a great deal of anxiety also as I was not aware of what was to come. This uncertainty made me feel on edge throughout the cruise.
…
99   It was also very disappointing that once the disruptions occurred, the standard of accommodation dropped significantly. …
100   Just as the accommodation deteriorated, so too did the food. On the cruise ship we enjoyed gourmet dining, however once we were taken off the cruise and while we were accommodated in hotels, the meal options were very limited…
101   … [T]he dining experience was very important for me when deciding to book the river cruise, and I was very let down by the devalued experience. It left me feeling greatly disappointed.”

At the time he swore his affidavit in 2020, Mr Davis still felt angry and disappointed about his experience, particularly in light of what he had paid for the Cruise. When he reminisces about travel generally with his companions, and is reminded of the events of this holiday, he feels particularly angry.
Mr Davis booked a cabin which was a balcony suite in Category BA which cost a little over 20% above the price of the base cabin.

The footnote reference upon which that submission was based was to a sentence in a letter from a group member written to Scenic after that group member’s Cruise had concluded. The letter contained a reference to a 1 in 600-year flood event. Clearly that passenger was making that reference as a consequence of having been through the flooding. However, that passenger does not point to any source of that factual assertion.
Whether or not the flooding was a 1 in 600-year event is simply unproved. There is no doubt, as I said in my first judgment at [155], that no witness was called by Scenic to give evidence about the extent of Scenic’s knowledge of the extent of the flooding and of the river levels in Europe. The highest the evidence rises is the content of an internal Scenic email which is set out at [231] of my first judgment. Even the source for that statement is not revealed.
The material which can be gathered from emails which were sent by Scenic was only that it regarded the high water levels as being “unprecedented”: see [213] and [223].
But more importantly, the Court is being asked to equate the knowledge of group members, most of whom had not taken a European river cruise before, and even those that had have not been shown to have had any particular knowledge of high water, with that of Scenic which was undoubtedly a large organisation, with operations staff based in Europe, staff on the cruise ships who were experienced in cruising along the rivers, and which had been in the business of providing river cruises for many years to first time or infrequent travellers who would have a general appreciation that a cruise may encounter adverse weather conditions. Even if the group members had knowledge that water heights might affect a cruise, that is simply not the same as that of Scenic. How might it affect the cruise is not something which any intending passenger would know. That is because such knowledge is within the scope of those who are experienced in operating the cruise. Intending passengers, the group members, have not been shown to have known of the heights of bridges, the comparative river heights, what height increase in the river level would or would not prevent a cruise travelling and how such things would impact on the navigation of the cruise. These are not matters which I would expect to be within the group members’ knowledge.
I reject the proposition that it was unreasonable for group members to rely on Scenic because their knowledge or means of knowledge was the same as that of Scenic.
Finally, it was said that a reasonable consumer would have obtained travel insurance and that conduct made it unreasonable for the consumer to rely on the skill and judgment of Scenic to deliver the purpose or result notified.
I reject this. First, whether or not a consumer takes out travel insurance will depend upon a broad variety of factors including what the consumer was intending to do whilst away from Australia, what personal health conditions the intending passenger suffered and how that might affect the taking out of insurance. Secondly, what the cost of the insurance was. Thirdly, what the terms and conditions of any available insurance policy were. Naturally, both the cost and terms would relate to coverage and exclusions within the policy. The mere fact that it was possible for a group member to take out insurance does not mean that a decision not to or, alternatively, a failure to take it out constitutes that traveller as a consumer who is not reasonably relying on Scenic’s skill and judgment with respect to the purpose and results to be achieved by the provision of the services.
In summary, I reject the submissions by Scenic that the s 61(3) defence is established with respect to any of the group members.
The services promoted in the Brochure were such, once agreed to by the intending passenger making a booking, as to implicitly record the purpose which the consumer wanted and the result which they expected the services to achieve.
The whole of the circumstances show that the group members as intending passengers relied upon Scenic, a large, apparently reputable, and well experienced river cruise operator to provide the services in a way which would achieve both the purpose and the result. That reliance was plain at the time of booking when the choice offered to intending passengers was to book on the Cruise or not and was not a choice which enabled them freedom to negotiate an individual tour. In those circumstances it is clear that they were relying on the skill and judgment of Scenic to provide the Cruise, and the services which it was obliged to.
The fact that there may have been days upon which the weather was inclement or adverse or perhaps days upon which the water levels might be higher or lower than usual, and even accepting that every group member knew about those matters, does not mean that there was no reliance on the skill and judgment of Scenic to provide the services. On the contrary, the services that were going to be provided and which the Court has earlier found were required to be provided by Scenic, are those which could only be delivered by an organisation exercising its skill and judgment. If it determined to embark on the Cruise, then the consumer guarantees were such that Scenic was obliged to comply with them.
That is not to the detriment of Scenic because it could have chosen, but did not do so, in the range of circumstances described in my first judgment, to cancel or defer the tours. The fact is that Scenic did in fact exercise such skill and judgment as it determined was appropriate and decided to continue with the Cruises without providing the services which would have achieved the purpose or the result which was made known to it.
The s 61(3) defence wholly fails.

Damages for Consequential Economic Loss of Airfares (s 267(4) of the ACL)

The group members claim an entitlement to damages pursuant to s 267(4) of the ACL in respect of the monies they paid for return airfares from their home countries to Europe so as to enable them to embark on the Cruise which they had booked. Scenic resists such a claim and says that it is inappropriate for the Court to award damages of this kind either to any individual group member or on some collective basis.
Section 267 is in the following terms:

“4 The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such a loss or damages as a result of such a failure.”

Section 267 makes it plain that damages pursuant to s 267(4) are in addition to damages pursuant to s 267(3) – being the subsection under which I considered damages for the reduction in value of the services actually provided.
The failure to comply with the purpose and result guarantees was found in my first judgment to be a “major failure” within the provisions of s 268(1)(a) of the ACL. At [774] of my first judgment, I said:

“[774] However, s 268(1)(a) focusses not on a particular individual but on whether a ‘reasonable consumer fully acquainted with the nature and extent of the failure’ would not have acquired the services. This is an objective test. It incorporates questions of reasonableness. Such was the contrast between the description of the services to be provided by the Scenic and the services which were in fact supplied, including the failure of those supplied services to fulfil either the purpose or result guarantees, I am satisfied that no reasonable consumer would have gone ahead and acquired the services at the price which was being charged.
…
[778] Putting it differently, the reasonable consumer did not have to acquire the services because they were not essential; could have acquired the services from another supplier; could have acquired the services at another time; or finally, could have acquired alternative recreational services such as a holiday in a different location. Each of these available alternatives means that the reasonable consumer would not have gone ahead and acquired the services promised by Scenic had the reasonable consumer been acquainted with the failures of the consumer guarantees, in the circumstances which occurred.”

In analysing whether damages pursuant to s 267(4) of the ACL are available, it seems that the first of a number of pre-conditions is that the services were supplied in trade or commerce to a consumer: s 267(1)(a). That is admitted by Scenic on the pleadings.
The second pre-condition is that the consumer guarantees relating to the supply of services, here the purpose and result guarantees and the due care and skill guarantee, are not complied with. That issue has been resolved in favour of the group members in my earlier judgment and in the judgment of the Court of Appeal and is recorded in the answers to common questions 7, 8 and 12. In summary, there was a breach of the purpose and result guarantees in respect to Cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 & 11. There was a breach of the due care and skill guarantee in respect to, relevantly, Cruises 4, 5, 6 & 7. The fact that there was no breach of the due care and skill guarantee in respect to Cruises 1, 2, 3, 8, 9 & 11 does not affect the eligibility for or calculation of damages under s 267 of the ACL.
The final pre-condition is that in s 267(1)(c), namely that the failure to comply with the guarantees did not occur only because of any act, default or omission by a person unrelated to the supplier either by itself, or an agent or employee, or else the cause of the failure occurred after the services were supplied and was independent of human control. In my first judgment, as explained at [440]‑[450], this third pre-condition is fulfilled. That is because the failures arose within the Scenic group by reason of the employees or agents of that group and occurred at the time the services were being provided.
It is next appropriate to consider whether the claim for damages for consequential loss by way of the value of the airfares said to be wasted as a consequence of the breach of the consumer guarantees, is a loss which is reasonably foreseeable.
Whilst Scenic submitted that damages constituted by the cost of the airfares were not able to be awarded under s 267(4) of the ACL, it did not submit that such damages were not reasonably foreseeable.
I am satisfied that such damages are reasonably foreseeable. There are a number of reasons for this. First, many but not all of the group members had their flights booked by Scenic as part of their Cruise package. Sometimes, depending on the package which was negotiated, the cost of flights was included in the price of the Cruise itself. Secondly, even if Scenic did not itself make the bookings for the air travel, it knew with respect to almost all of the passengers, it would seem, when the passengers were arriving at the embarkation port. That was because it included airport transfers as part of the services provided as part of the Cruise price. Thirdly, the Cruises all took place in Europe. The bookings were made by people in countries outside Europe, typically Australia, Canada, other countries in the Pacific and the United Kingdom. The passengers had to get themselves to the embarkation port and then back home. It was obvious to Scenic that in so doing, passengers would incur costs of one form or another – overwhelmingly, airfares.
The fundamental goal of compensatory damages is to restore the injured party to the position they would have been in had the breach of contract or tort (or breach of consumer guarantee) not occurred: Robinson v Harman (1848) 1 Ex Rep 850 at 855; 154 ER 363 at 365; Baltic Shipping at 362; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 (“Amann Aviation”) at 80‑82 per Mason CJ and Dawson J; at 98 per Brennan J; at 116-117 per Deane J; at 134 per Toohey J; at 148 per Gaudron J; at 161 per McHugh J.
It is worth noting in the judgment of Mason CJ and Dawson J in Amann Aviation the following remarks at page 81:

“Similarly, where it is not possible for a plaintiff to demonstrate whether or to what extent the performance of a contract would have resulted in a profit for the plaintiff, it will be open to a plaintiff to seek to recoup expenses incurred, damages in such a case being described as reliance damages or damages for wasted expenditure.
A further example of the application of Robinson v Harman which will result in a plaintiff being entitled to claim damages for wasted expenditure is in a contract for services such as that between a solicitor and a client. Where a solicitor has breached his or her contractual duty of care, the measure of damages to which a client will be entitled will be such an amount as will put the client in the position he or she would have been in had the contract of retainer been performed without negligence. In cases where, had non-negligent advice been given, the client would not have entered into a subsequent transaction, for example a purchase of real property, then, in conformity with Robinson v Harman, the client will be entitled to recover as damages expenditure wasted on account of the negligent advice, less anything subsequently recovered and given reasonable acts of mitigation. The amount of wasted expenditure will be the appropriate measure of damages in such a situation because, it having been established that the client would not have entered into the subsequent contract if proper advice had been given, it is not sensible to speak of loss of profits. … The expressions ’expectation damages, ‘damages for loss of profits’, ‘reliance damages’ and ‘damages for wasted expenditure’ are simply manifestations of the central principal enunciated in Robinson v Harman rather than discrete and truly alternative measures of damages which a party not in breach may elect to claim.”

It is to be noted as Mason CJ and Dawson J said in Amann Aviation, a claimant is not entitled by the award of damages upon breach to be placed in a superior position to that which he or she would have been in had the contract been performed.
In the context of these claims, and consistently with the remarks of Edelman J in the High Court’s judgment in this matter, there is no reason to assess damages according to any different principle than that applicable for breach of contract or tort. The fundamental principle of restoring the claimant to the position they would have been in had there not been a breach of consumer guarantee is the appropriate guiding principle.
The plaintiff submitted that in the application of s 267(4) in the circumstances here, the loss by way of wasted expenditure being the airfares occurred as a result of the failure to comply with the guarantee. The group members submitted that although they may be compensated under s 267(3) for the reduction in value of the services provided, the cost of the airfares were nevertheless wasted because they were spent in order to enable the group members to participate in the Cruise, thereby experiencing all of the services to be provided by Scenic. Where those services were not in fact experienced, then the group members argued that the cost of travel from home to Europe for the Cruise was wasted and recoverable.
The group members also submitted that such costs were wasted in whole where the passengers, although spending a few extra days before or after the Cruise, flew to Europe for the sole purpose of undertaking the Cruise, that they were nevertheless also entitled to a part of the cost of the airfares if the incurring of that cost was for the dominant purpose of taking the Cruise, the primary reason for taking the Cruise or that the Cruise was one of a number of purposes for taking the flight.
Scenic argued that the cost of the airfares in any of the cases articulated by the group members was always an expense which would have been incurred and to award damages by way of the whole or any proportion of the airfares would be to have the effect of overcompensating group members because once group members had received compensation pursuant to s 267(3) of the ACL for the lost value of the services in the circumstances and also damages for disappointment and distress pursuant to s 267(4) of the ACL, they had been restored fully to the position they would have been in had the breaches of the consumer guarantees not occurred.
In addition, Scenic argued that the expenditure on the airfares was not “wasted” because the group members received the full benefit of the flights. That is to say, the flights were taken, they achieved their purpose of transporting the group members from their home countries to the relevant location in Europe and all services related to the flight were provided.
Finally, Scenic submitted that the costs of the airfares were not costs incurred by the group members as a result of any contravention of the consumer guarantees.
It seems to me that the starting point of the analysis on this question is to identify the nature of the breach of the consumer guarantees. As earlier indicated, the breach of the consumer guarantees was found to be a major failure because I was satisfied that the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. This finding is undisturbed and applies to all the group members and in respect of each of the 10 Cruises.
If the consumer would not have acquired the services, then they would not have flown to Europe for the purpose of taking the Cruise. Accordingly, consistently with the remarks of Mason CJ and Dawson J in Amann Aviation, the consumers would not have purchased the airfares and would not have expended the cost of the airfares. In those circumstances, I am satisfied that the cost of airfares can be regarded as falling within the description of wasted expenditure.
However, as Scenic points out, and as the group members’ submissions accept, many of the group members did not travel to Europe solely for the purpose of taking the Cruise. Many spent long periods away from their home base undertaking not just the Cruise but weeks of personal travel or, alternatively, adding other tours to their holiday. Hence, as the group members accepted, the categories of group members could readily be identified.
There are those for whom the sole purpose of travelling to Europe and incurring the airfares was to take the Cruise. In respect of group members falling into that category, I am satisfied that the airfares were wasted, and that they are entitled to damages by way of the cost of the airfares and taxes actually paid by them.
There is no difficulty, as it seems to me, in identifying those group members who fall into such a category. First, the Cruise will be the only reason they travel to Europe. Secondly, that reason may be found even though they may spend two of three nights, after landing on their way to the city of embarkation, or else in the city of embarkation and two or three nights in the city where the Cruise finished, or else on their way to the airport of departure from Europe. The point to be made is that other than flying to and from Europe to take the Cruise, although there may be some incidental time spent other than in the port of embarkation or disembarkation it can be readily determined that such group members travelled to Europe for the sole purpose of the Cruise.
In my view, those group members in that category are entitled to a full refund of their airfares and taxes which they paid. On the evidence before the Court, the claimants who would fall into that category are: on Cruise 2, Ms Jennifer Bosich and Mr Paul Osenton; on Cruise 4, Ms Patricia Komiyama; on Cruise 7, Mr Thomas Davis; and on Cruise 8, Mrs Janice Robinson.
Other group members who fall into this category of travellers are, in my view, entitled to recover the full cost of their airfares as wasted expenditure.

A more difficult circumstance exists in circumstances where the Cruise was the dominant purpose for travelling from their home country to Europe. A good example of this may be argued to be the plaintiff, Mr Moore. As described in my first judgment, Mr Moore booked a package which was described in the booking advice issued to him on 6 September 2012 as “Paris and Jewels of Europe (PACR 310513.1) from Paris to Bud”. Mr Moore and his wife flew to Paris, arriving on 1 June 2003, stayed for two nights in a Paris hotel before travelling by train to Amsterdam to embark on Cruise 8. Those nights in Paris were not part of the Cruise and were not part of any other group travel. In the case of group members such as Mr Moore, it becomes an individual question of fact as to whether or not Mr Moore would have travelled to Europe if there had not been any consumer guarantee failures. In other words, if he would not have acquired the cruise services which he did, would he have nevertheless travelled to Europe.
In Mr Moore’s case it is self-evident that he would not. No reasonable consumer would travel to Europe to spend two nights in Paris and then come home. In my view, Mr Moore is entitled to a full refund of his airfares and taxes by way of compensation under this heading.
At the other end of the spectrum of travel is that described by one of the claimants whose damages are being assessed, namely Mrs Morna Hill, who, before and after the time she spent on Cruise 1, travelled throughout Europe and the United Kingdom for, in total, about 6 weeks.
In that circumstance, I am not, and could not be, persuaded that the airfare was a wasted expenditure. Clearly it was not. This claimant received the full benefit of the airfare regardless of whether they would have booked on the Cruise or not.
Between those examples, there are many, many others. Indeed, as the plaintiff submits, there are ways in which those examples could be categorised.
I am not persuaded that I can make findings which accord with the plaintiff’s categories. Nor am I persuaded that one can apportion airfares between the different purposes of travel where more than one purpose exists. It seems to me that apportionment is not consistent with wasted expenditure. The notion of damages by way of wasted expenditure is costs which would not have been incurred but for the breach of contract, the tortious conduct or the breach of statutory guarantee. Once one gets to the stage of suggesting an apportionment exercise, then one is accepting that the damages were not wasted because, at least in part, they would have been incurred.
In my view, the s 267(4) damages permissible with respect to airfares is limited to those whose sole purpose was to attend the Cruise, and in respect of whom it can be readily concluded that they would not have travelled to Europe at all had they not booked for the Cruise. In those circumstances, Mr Moore and his wife would be entitled to recover their expenditure as would those to whom reference has been made.
I am not in a position to identify others within the group who would fall into that category, other than those whom I have earlier named.
Interest is payable on this head of damages in accordance with and in the same way as I have earlier discussed at [82] for the lost value damages claim.

Aggregation

The plaintiff submitted that the Court having determined damages, as I have, should engage in the aggregation of those damages on a cruise-by-cruise basis.
Having regard to the way in which I have determined damages, which did not accord with all of the submissions of either the plaintiff and group members on the one hand or the defendant on the other, it is not appropriate for me to determine the aggregation question without further submissions from the parties in light of my conclusions.
The question of aggregation of damages, which requires estimation or prediction, is best determined by reference to identified facts and identified heads of damage and sums of money.
In those circumstances, I will defer considering any question of aggregation until receiving further submissions.
However, as will be clear from the way in which I have awarded damages, the awards of damages pursuant to s 267(3) by way of lost value will be identical, at least in percentage terms, for all passengers on each Cruise.
Insofar as I have awarded damages for distress or disappointment pursuant to s 267(4) of the ACL, it will be observed that the damages are awarded on an individual basis, but they necessarily reflect the degree of disruption experienced on each of the Cruises. Those Cruises that had greater degrees of interruption, I have concluded as a matter of general approach, resulted in greater disappointment and consequent distress. Damages are nevertheless a matter to be assessed on a case-by-case basis.
Insofar as group members are entitled to damages for wasted expenditure pursuant to s 267(4) of the ACL by way of airfares, as I have explained, where the sole reason for the travel to Europe was for the purpose of obtaining the cruise services, then those airfares will be recoverable. It will be a matter of fact in each case as to whether or not it was for the sole purpose. In making that assessment, as I have remarked I do not regard it as at all unreasonable that group members will have spent two or three nights in Europe including in the port of embarkation before the Cruise and two or three nights in the port of disembarkation or travelling to the country of departure.
In other cases, it will require a case-by-case analysis of whether but for the breach of the consumer guarantee, the airfares would have been incurred in any event.
In light of the various complexities in the assessment of damages which I have undertaken, the appropriate course is to allow the parties time to consider the judgment and the formal orders which ought to be made, and to invite counsel to confer on the orders which the Court ought to make.
I order the proceedings be fixed for directions before me on Friday 13 May 2022 at 9.30am. It would be appropriate for counsel to provide to my chambers 24 hours before that hearing the formal orders that are either agreed, or where not agreed, the orders that each contend ought to be made.
The parties have liberty to apply to relist the matter if further time is needed, or for any other reason.

**********

Decision last updated: 14 April 2022

Medium Neutral Citation:	Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270
Hearing dates:	15–19 March 2021, 24–26 March 2021
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Common Law
Before:	Garling J
Decision:	See [830]
Catchwords:	CONSUMER LAW — enforcement and remedies — remedies relating to statutory guarantees — action against supplier of services — calculation of damages for reduction in value of services — calculation of damages for distress and disappointment — calculation of damages for consequential economic loss
Legislation Cited:	Civil Liability Act 2002 (NSW) s 16 Civil Procedure Act 2005 s 100 Competition and Consumer Act 2010 (Cth) Sch 2 – The Australian Consumer Law ss 61, 267, 275
Cases Cited:	Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15 Jarvis v Swan Tours Ltd [1973] QB 233 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79 Milner v Carnival plc [2010] EWCA Civ 389; [2010] 3 All ER 701 Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 Robinson v Harman (1848) 1 Ex Rep 850; 154 ER 363 Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456 Watts v Morrow [1991] 1 WLR 1421
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	David Moore (Plaintiff/Applicant) Scenic Tours Pty Ltd (Defendant/Respondent)
Representation:	Counsel: J A Hogan-Doran SC/ N Li (Plaintiff/Applicant) D S Weinberger / A Jordan (Defendant/Respondent) Solicitors: Somerville Legal Pty Ltd (Plaintiff/Applicant) SWS Lawyers (Defendant/Respondent)
File Number(s):	2014/223271
Publication restriction:	Not Applicable