Moore v Scenic Tours Pty Ltd

The High Court of Australia considered an appeal by Mr Moore against Scenic Tours Pty Ltd concerning damages for disappointment and distress arising from a severely disrupted holiday cruise. Mr Moore had booked an all-inclusive luxury cruise, which was significantly affected by adverse weather conditions, resulting in extensive bus travel and multiple ship changes, falling far short of the advertised experience. Mr Moore alleged breaches of consumer guarantees under the Australian Consumer Law (ACL), specifically ss 60 and 61, and sought damages for disappointment and distress.

The central legal issue before the High Court was whether s 275 of the ACL, which directs that state laws apply to limit or preclude liability for breaches of consumer guarantees where that state law is the proper law of the contract, incorporated s 16 of the *Civil Liability Act 2002* (NSW). Section 16 of the NSW Act precludes damages for non-economic loss in personal injury cases unless a minimum threshold of severity is met. The court had to determine if this NSW limitation applied to Mr Moore's claim for disappointment and distress, even if that distress was not consequential upon physical or psychiatric injury.

The High Court reasoned that s 275 of the ACL does not operate to apply the limitations in Part 2 of the *Civil Liability Act 2002* (NSW) to claims for disappointment and distress that do not arise from physical or psychiatric injury. The Court found that Part 2 of the NSW Act is confined to claims for personal injury, and the damages it limits are those for non-economic loss flowing from such injury. Therefore, s 16 of the NSW Act did not preclude Mr Moore's claim for damages for disappointment and distress, irrespective of where the loss was suffered. The appeal was allowed, with the primary judge's order for damages for disappointment and distress reinstated, and the matter of group members' recovery for such damages remitted to the primary judge.