Wellington v Cruiseabout - [2016] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
WELLINGTON & ANOR v CRUISEABOUT & ANOR
[2016] SADC 165
Reasons for Decision of His Honour Judge Stretton
1 November 2016
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - TERMS ESSENTIAL TO ENABLE PERFORMANCE
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT - REMOTENESS AND CAUSATION - OTHER CASES
In a minor civil action the Plaintiffs sued the Defendants Cruiseabout and Cunard for damages arising from a cruise booking they made, primarily concerning the alleged failure to provide a contracted coach transfer from Sydney airport to the cruise dock and failure to provide promised assistance at the airport to locate and board the coach transfer.
On arrival at Sydney airport the Plaintiffs could not locate, nor were they directed to a coach transfer. As a result, the Plaintiffs were left to struggle to a taxi and pay for their own ride to the ship. Mr Wellington claimed that as a result of not receiving the assured assistance at the airport and direction to the coach he and his wife had to manhandle their own luggage to a taxi such that he aggravated certain existing medical problems he had, causing him to be confined to his cabin for most of the cruise, and as a result the trip was a total loss for both Plaintiffs. They sought a refund of the full cost of the cruise.
The Magistrate found that the transfer had been provided but that the Plaintiffs through their own fault had failed to locate and board it, hence the Plaintiffs could not succeed.
Held
1.       The Minor civil action miscarried in that there was an inadequate basis for the Magistrate to conclude that the coach transfer had been provided, and accordingly the matter was re-heard.
2.       Upon re-hearing, it was established that Cunard either failed to provide the contracted transfer, or breached an implied condition in that contract to inform the Plaintiffs where the coach was located or direct them to it upon arrival at Sydney airport.
3.       The male Plaintiff did suffer moderate exacerbation of his medical condition when he walked to and manhandled his baggage to the nearby taxi rank.
4.       In all the circumstances the claimed loss of enjoyment of the cruise was too remote to found a claim for damages for breach of the contract to provide the coach transfer.
Observations as to the nature and scope of the review of a minor civil action, given that a minor civil action is an inquisitorial hearing between unrepresented parties primarily run by the presiding Magistrate. A minor civil review per s 38 of the District Court Act requires a very different approach than an appeal.
Since the primary responsibility for the issues and evidence at trial rested with the Magistrate and not the parties, the range of refinements and restrictions of scope developed by the law over the centuries to efficiently manage the modern appeal process, predicated on a lawyer-managed adversarial trial process having taken place, to conserve finite court resources, to encourage parties to competently and comprehensively address all relevant issues at first instance, and achieve finality in litigation will have much less application on a review of a minor civil action.
District Court Act 1991 s 38 (1)(6)(7), referred to.
March v E & M H Stranmere Pty Ltd (1991) 171 CLR 506; Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310; Hadley v Baxendale (1854) 156 ER 145; Koufos v C Czarnikow Ltd (1969) 1 AC 350; NAB V Nemur Varity Pty Ltd (2002) VR 252; Baltic Shipping Co v Dillon (The Mikhail Lermontiv) (1993) 176 CLR 344, applied.
Hadley V Baxendale (1854) 156 ER 145, discussed.
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; The Moorcock (1889) 14 PD 64, considered.

WELLINGTON & ANOR v CRUISEABOUT & ANOR
[2016] SADC 165

This is a review of a minor civil action between the Plaintiffs Kingsley and Annette Wellington and the defendants Cruiseabout and Cunard.
Introduction
The Plaintiffs booked a Cunard cruise through their travel agent Cruiseabout.
The minor civil action, as amended, primarily related to the alleged failure of Cruiseabout and Cunard to provide a contracted transfer from Sydney airport to the cruise dock and failure to provide promised assistance at the airport.
As a result the Plaintiffs say they were left to struggle to a taxi and pay for their own ride to the ship. Mr Wellington claims that as a result of not receiving the assured assistance at the airport and accordingly having to manhandle their own luggage to a taxi he aggravated certain existing medical problems he had. The Plaintiffs claim that as a result Mr Wellington’s medical condition worsened in various ways, that he was confined to his cabin for most of the cruise, and as a result the trip was a complete disaster for both Plaintiffs. They sought a refund of the full cost of the cruise.
There was initially also a claim by the Plaintiffs against Cruiseabout over a cabin upgrade that allegedly resulted in their receiving a less preferred cabin at an additional cost of $958, which after refunds left them out of pocket $100. The claim against Cruiseabout as amended sought the sum of $1125.
The nature of a minor civil review
The review undertaken by the District Court of a minor civil action occurs per s 38 of the District Court Act.
A minor civil action is not itself an adversarial trial. Section 38(1) contemplates that a minor civil action is an inquiry by the Magistrate into the areas of dispute between the parties. As such, it is an inquisitorial process, akin to many European systems of justice. The court must itself elicit the issues and the facts by enquiry of the parties, from evidence produced to the court, and may itself call and examine witnesses.
The ‘review’ is accordingly not of an adversarial trial, and accordingly many of the principles applicable to appeals that assume or are predicated on the adversarial process will be inappropriate. Further, the litigants will not have been legally represented at trial, and much flows from that as well.
The District Court in reviewing the matter must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. It can inform itself as it thinks fit and in doing so is not bound by the rules of evidence. It can also rehear evidence taken before the Magistrates’ Court. It can affirm the existing judgement or rescind it and substitute its own. The Supreme Court has held that a review may proceed in the same non-adversarial inquisitorial manner as the minor civil action was itself conducted.
The District Court cannot remit the matter for rehearing, unless the review is from a summary or default judgement. There is no further appeal. The legislation envisages a cheap, final, and general consideration of a minor civil action.
Concepts of an ‘appeal’, with all the historical refinements and restrictions the courts have imposed over the years based on the way the proceedings were conducted by legally qualified adversarial advocates, will not necessarily be appropriate in the case of a trial primarily managed and run by a judicial officer rather than lawyers or indeed the parties themselves, where indeed there were no legally trained advocates at all. In a minor civil action run without lawyers, it is to be expected that parties may not accurately identify all the issues arising from their dispute or all or any of the relevant legal principles, nor know how to run or prove a case. Indeed, probably for these very reasons, the Act specifically provides that the parties are not bound by their pleadings and provides that the Magistrate must elicit the relevant issues between the parties. The Act also provides that the Magistrate should elicit the facts by way of enquiry of the parties and witnesses and any other evidence, and in doing so may call and examine witnesses.
Since the primary responsibility for the issues and evidence at trial rested with the Magistrate and not the parties, the range of refinements and restrictions of scope developed by the law over the centuries to efficiently manage the modern appeal process, predicated on a lawyer-managed adversarial trial process having taken place, to conserve finite court resources, to encourage parties to competently and comprehensively address all relevant issues at first instance, and achieve finality in litigation will have much less application on a review of a minor civil action.
Sections 38(6) and (7) therefore require an examination of the inquisitorial process undertaken by the Magistrate, to determine whether the fundamentals required of a full, fair and comprehensive inquisitorial enquiry identifying all the relevant issues and addressing them with all relevant and available evidence, have been satisfied. As this court has said before, the trial of any minor civil action requires:
·A fair hearing by a competent, unbiased tribunal.
·The Magistrate identifying and addressing the real issues in dispute between the parties, whether or not they are initially pleaded.
·The Magistrate ensuring that all available evidence relevant to the real issues in dispute that the parties can and want to call should be called, whether by the parties or the Magistrate themselves.
·The identification by the Magistrate of the relevant legal principles applicable to the real issues in dispute.
·A competent fact finding approach by the Magistrate, with no apparent errors of logic or conclusion.
·A correct application of the legal principles to the found facts.
The review contemplated by s 38(7) of the Act must accordingly address itself to these matters. Upon review, the parties will not necessarily be restricted to the way ‘they’ pled their claim or ran ‘their’ case, as the primary responsibility for identifying and defining the issues between the parties and eliciting evidence lay with the Magistrate not the parties. If there has been any failure by the Magistrate to identify the real issues, or elicit all relevant evidence, then the Act is clear that failure should be remedied in this court, as there is power to call evidence and to rehear evidence, and no power to remit to the summary court for rehearing. The role of this court is to, if necessary to do justice between the parties, remedy any omission in the inquisitorial trial process in the lower court, i.e. identify any real issues between the parties that were not so identified, hear any relevant available evidence that was not heard, and resolve the issues between the parties fully and finally, in the way they should have been before the Magistrate.
The scope of the hearing before the Magistrate
The Plaintiffs filed a notice of discontinuance against Cruiseabout on 15 February 2016. At the outset of the hearing before the Magistrate on 10 June 2016 the Plaintiffs told the Magistrate that they had settled with Cruiseabout, for the sum of $1000.
They also confirmed that Cunard had refunded the money they had paid for transfers and that Cunard had refunded them the cost of the taxi fare to the ship.
Accordingly, the only issue pursued before the Magistrate was the Plaintiffs’ claim against Cunard for a full refund of the remaining monies they paid for their cruise, on the claimed basis that the failure to provide the transfer and assistance at the airport had aggravated Mr Wellington’s medical condition to such an extent that he had been confined to his cabin for most of the cruise with his wife required to care for him such that the cruise was ‘a disaster’, and in effect that they lost all of the amenity and enjoyment that they had been entitled to expect from the cruise.
The settlement with Cruiseabout
As mentioned, the Plaintiffs assert that Mr Wellington suffered in part due to having no assistance to move himself and his bags from the baggage collection point to the bus when the coach transfer was not provided.
At the hearing in this court, it became apparent from all the materials that Cruiseabout’s representative may have wrongly assured the Plaintiffs that assistance would be available at the Sydney airport between the baggage collection point and the bus, when in reality there was no guarantee that any such assistance would be available. Cruiseabout had some notice of Mr Wellington’s disabilities and notice of his consequent potential to suffer loss if the transfer or airport assistance were not provided. Further, Cunard never indicated to anyone that airport assistance could or would be provided by Cunard, nor did they fail to provide any promised assistance.
In those circumstances it seemed that Cruiseabout may be potentially liable for the extended loss and damage claimed by the Plaintiffs, and so the issue of the scope of the settlement between the Plaintiffs and Cruiseabout therefore became an issue.
The Plaintiffs submitted that they had only settled the taxi fare, cost of upgrade and a 15% tax issue with Cruiseabout, and thought they might therefore be able to pursue Cruiseabout for the remainder of their claim, i.e. their loss of amenity concerning the cruise itself.
Accordingly the documents relating to settlement were provided.[1]
[1] Tendered as P3.
Those documents revealed that there had been an exchange of emails and draft settlement agreements between 20 and 22 January 2016. As a result a settlement agreement dated 22 January 2016 was signed, pursuant to which Cruiseabout paid the Plaintiffs $1000 and the Plaintiffs filed a notice of discontinuance on 15 February 2016.
The signed settlement agreement reads as follows;
Date: January 22, 2016                  Settlement Agreement
Kingsley Rex Wellington
  Annette Wellington
(ADDRESS GIVEN)
Via email (GIVEN)
And
FLIGHT CENTRE TRAVEL GROUP
(Cruiseabout Glenelg)
3/545 Queen Street
Brisbane QLD 4000
(ACN 003 377 188)
1.   Kingsley and Annette Wellington acknowledge that a dispute exists between them in relation to all elements of a Cunard Cruise booking made by Cruiseabout Glenelg. Flight centre Travel Group Limited does not admit liability in relation to this matter and the settlement contained herein is made on a purely ex-gratia basis without prejudice.
2.   Kingsley and Annette Wellington have agreed to accept FLIGHT CENTRE TRAVEL GROUP LIMITED’s ex-gratia offer of goodwill in total: ONE THOUSAND DOLLARS (AUD$1000)
3.   This ex-gratia offer is for the issues stated in paragraph 1 of this document and no other issue.
4.   No other claim of any nature or matter whatsoever will be made by Kingsley and Annette Wellington in relation to the matter as referred to in paragraph 1.
5.   The provision of the compensation referred to in paragraph 2 is full and final settlement of any claim against FLIGHT CENTRE TRAVEL GROUP LIMITED or any employee, officer or agent, whether past of present of FLIGHT CENTRE TRAVEL GROUP LIMITED. Kingsley and Annette Wellington undertake not to make any further claims in respect to the dispute relating to the Taxi Fare, Cost of upgrade and 15% Tax as listed in the Claim currently before the Magistrates Court.
6.   Each of the parties to this deed undertakes to keep the terms of this deed confidential and not to disclose them either publicly or privately or make any public or private comment or statement in relation to them. Any such disclosure may only be made if required under compulsion of law or if made with prior consent in writing of the other party to it.
DATE:
        SIGNED by
(SIGNED)  (SIGNED)
……………………………………..         ……………………………………..
Kingsley Wellington  Annette Wellington
Signed on behalf of   (SIGNED)
FLIGHT CENTRE TRAVEL GROUP LIMITED by …………………..……
The correspondence prior to the signing of the above settlement agreement had involved the parties negotiating the sum, and the Wellingtons insisting that the words ‘Kingsley and Annette Wellington undertake not to make any further claims in respect to the dispute relating to the Taxi Fare, Cost of upgrade and 15% Tax as listed in the Claim currently before the Magistrates Court’ be inserted at the end of paragraph 5.
It is clear that Cruiseabout always intended that the settlement would be a full and final settlement of all potential claims between the parties concerning the cruise booking they had made for the Wellingtons. The Wellingtons did nothing in correspondence to overtly disabuse Cruiseabout of that idea.
Mr Wellington told the District Court in evidence and in his 31 August 2016 email[2] that by inserting the quoted sentence into the settlement agreement ‘we made certain that the signed settlement agreement only covered the products we were claiming on namely taxi fare, cabin upgrade, surcharge tax’.
[2] Included as part of P3,
A signed settlement agreement is a contract which will ordinarily bind the parties to its terms. If those terms are clear and unambiguous, and there is no fraud, misrepresentation or other basis to go behind it, then it will bind the parties in accordance with its terms. The terms of this settlement agreement are clear.
The Wellingtons undertake in the agreement not to make any further claims for ‘Cost of upgrade and 15% Tax as listed in the Claim currently before the Magistrates Court’, however they also agreed that ‘The provision of the compensation referred to in paragraph 2 is full and final settlement of any claim against FLIGHT CENTRE TRAVEL GROUP LIMITED or any employee, officer or agent, whether past of present of FLIGHT CENTRE TRAVEL GROUP LIMITED.’ If that was not clear enough, the agreement goes on to provide per paragraph 4 that ‘No other claim of any nature or matter whatsoever will be made by Kingsley and Annette Wellington in relation to the matter as referred to in paragraph 1.’ Paragraph 1 refers to the parties’ dispute as to all elements of the cruise booking made between the parties.
The unambiguous meaning of paras 1, 2, 4 and 5 is that the settlement is intended to represent a full and final settlement of all claims between the parties over the cruise booking. The addition of the words to paragraph 5 to the effect that that the Wellingtons undertook not to make any further claims ‘relating to taxi fare, cost of upgrade and … tax’ don’t semantically, logically or contractually diminish the quite separate terms agreeing that the settlement is in full and final settlement of all claims arising from the cruise booking.
The legal effect of the signed settlement agreement is to finally resolve all actual or potential claims over the cruise booking between the Wellingtons and Cruiseabout.
Parties are bound by their written agreements, and on an objective analysis the Plaintiffs agreed in writing a full settlement with Cruiseabout. Hence the Plaintiffs have no further claim against Cruiseabout.
The claim against Cunard
It is common ground that the Plaintiffs contracted with Cunard for Cunard to provide the Plaintiffs with a bus transfer from Sydney airport to their ship on 12 March 2015. It is common ground that the Plaintiffs did not board any such transfer and instead caught a taxi to the ship. It is common ground that Cunard have refunded the cost of the pre-paid transfers and indeed reimbursed the Plaintiffs the cost of the taxi.
Hence, the Plaintiffs’ remaining claim is for damages in the sum of a full refund of their cruise fare on the basis that the failure to provide the transfer and assistance at the airport aggravated Mr Wellington’s medical condition to such an extent that he had been confined to his cabin for most of the cruise, with his wife required to care for him, such that the cruise was ‘a disaster’ for both of them. The Plaintiffs claim that they both lost all of the amenity and enjoyment that they had been entitled to expect from the cruise.

To establish liability, the Plaintiffs must firstly prove that Cunard breached the contract, secondly that the Plaintiffs suffered loss on account of the breached contract beyond the value of the contract itself, and thirdly that in all the circumstances Cunard should be held liable for that loss.
Here it was the alleged failure to provide assistance from the Virgin baggage carousel to the transfer that is argued by the Plaintiffs to have caused the alleged worsening of Mr Wellington’s condition and consequent loss of amenity on the cruise. The Plaintiffs claim that they were promised that assistance by Cruiseabout on behalf of Cunard, and that in effect the contract included both the transfer and assistance to locate and get to the transfer, so that when there was either no transfer, or if there was one there was no indication of where it was or assistance to get to it, the contract was breached and the Plaintiffs had to struggle without assistance to a taxi. Mr Wellington suffered injury as a consequence of having to get to the taxi himself and manhandle baggage.
Background to the claim
The Plaintiffs flew to Sydney on a Virgin airlines flight. It is not disputed that when the Plaintiffs landed in Sydney they were then assisted by airline personnel to the Virgin luggage carousel where they collected their luggage. It is also not really in dispute that they were then unable to deduce where their transfer to the airport was departing from, nor was there the assistance that they believed they had been promised to both locate and then get to the transfer departure point. It is also common ground that they caught a taxi to the cruise port and took the cruise.
Trial before the Magistrate
Before the Magistrate Mr Wellington gave evidence that he and his wife purchased a cruise from Cunard. They were to fly from Adelaide to Sydney on Virgin airlines, then transfer to the ship from Sydney Airport. All went well to the point that the flight arrived in Sydney and Virgin staff took him by wheelchair to the luggage carousel and recovered his luggage. That is when things are said to have gone wrong.
Mr Wellington gave evidence that the travel agent (Cruiseabout) arranged with Sydney airport to supply him with luggage assistance.[3] He said that on arrival there was no sign of a Cunard representative where persons awaiting the arrival of flights with signs normally were, nor anywhere else. He waited in the wheelchair for 30 minutes while his wife and Virgin staff unsuccessfully looked for someone from Cunard. He said that on a previous Cunard trip some 12 months before, there had been a Cunard representative waiting at the airport.
[3] Magistrate transcript p4.
The Magistrate asked Mr Wellington who had undertaken to provide the assistance. Mr Wellington replied that Cunard initially undertook to provide embarkation and disembarkation assistance on and off the ship at the port, and that he assumed that included the service they needed at the airport.[4] He said he made that assumption based on the documentation they had received from Cunard that Cunard would have a representative to show them from the carousel to the bus.[5]
[4] Magistrate transcript p5.
[5] Magistrate transcript p6.
Documentation was produced to the Magistrates’ Court by Mr Wallis the Cunard representative that on December 4, some four months prior to the day in question, the travel agent Cruiseabout in the form of ‘Simon’ had called Cunard who had confirmed embarkation and disembarkation assistance would be provided. Simon had asked Cunard whether assistance was available in getting the Wellingtons to the coach transfer. Cunard had responded that they could not guarantee that from Cunard’s end, but the passenger could ask for assistance from airport staff. Mr Wallis said that Cunard did not provide assistance from the airport to the bus, they just contract a coach company for the purpose of transferring passengers to the ship. He said that the bus company’s representative will be at the bus.[6]
[6] Magistrate transcript pp7-8.
Mr Wellington gave evidence that Simon from Cruiseabout had however rung the airport and then told the Wellingtons that the Airport had arranged with Virgin to escort them to the bus if necessary.[7] An email from Simon at Cruiseabout was produced which indicated that Adelaide Airport would have people in high-vis vests to assist at the car drop off point (in Adelaide), and Cunard had said they will provide assistance at embarkation and disembarkation. There was no reference in that email to assistance being provided from the Sydney luggage carousel to the bus.[8]
[7] Magistrate transcript p11.
[8] Magistrate transcript p13.
On enquiry from the Magistrate, the Plaintiffs could not produce any documentation from either Cunard or Cruiseabout guaranteeing assistance from the carousel to the bus. Mr Wellington agreed that his evidence was that Simon had arranged that with the airport, rather than with Cunard. Mr Wellington then responded that the real issue was that there was no Cunard representative present to show the way to the bus. He said that someone had been there to show them the way to the bus on their trip 12 months before, and he posited the question how were they to find the bus unless someone was there to show them where it was.
Mr Wellington went on to say that because they had to get their own luggage to the taxi rank, with his wife pulling or dragging two cases and he the third, he exacerbated his medical condition.
He indicated he had had a hip replacement two or three months prior, which caused subsequent knee problems. As it was a pre-existing condition he said it would likely not have been covered by his travel insurance. Mr Wellington agreed they boarded and undertook the cruise, and did not seek any medical treatment during the cruise. He said they could not afford to seek medical treatment, and they knew as a pre-existing condition travel insurance would not have covered it. Mr Wellington said they boarded the cruise as at the time of boarding he did not realise the full effect of what had happened to him. He said he had difficulty standing and was virtually cabin bound, not being able to attend any of the on-board entertainment or the shore excursions. He said he was already on Panadol but his pain level increased.
The Magistrate’s decision
The Magistrate gave brief summary reasons.
He said that the Plaintiffs’ claim failed in two significant respects.
Based on the evidence of its representative Mr Wallis and supported by the tendered documentation, the Magistrate found that Cunard never agreed to or represented to anyone that they would assist people from the baggage carousel to the bus. He found on the basis of the Plaintiffs’ evidence that the only arrangements for assistance from the carousel to the bus were made via Simon from Cruiseabout with Sydney airport.
He also found that the bus had been provided and transferred other passengers, and it was the Plaintiffs’ mistake in not getting to the coach.
Part way through the ex tempore judgement Mr Wellington spoke up and submitted that the real issue was the failure of Cunard to have someone present to give directions to where the bus might be. The Magistrate told the plaintiff it was too late to vary the claim in that way.
The Magistrate indicated that even if he had found Cunard liable for the Plaintiffs having to carry their own luggage or not having a representative present to show the way to the bus, the Plaintiffs had not established a sufficient nexus between the carrying of the baggage and the injuries or exacerbation of Mr Wellington’s condition such as to ruin the trip by rendering Mr Wellington in effect cabin bound for the duration of the trip. The Magistrate concluded by noting that Mr Wellington was elderly and had had major hip surgery only recently, did not mention anything at embarkation, sought no medical help, nor did he ask to get off the cruise at any point.
Upon review of the summary trial it must be observed that the Cunard evidence upon which the Magistrate concluded that the bus was present and had transferred other passengers, and that accordingly the Wellingtons were at fault was second or third hand evidence from the Cunard representative which had little or no probative weight. The only direct evidence as to whether Cunard provided the contracted transfer was from the Wellingtons. That evidence was straightforward and the Magistrate did not explain why he did not accept it, or how it was he concluded that it was the Wellingtons’ fault they did not board the transfer, when there was no evidence that the Wellingtons were ever told where it was nor were there any directions at the airport to assist them to find it.
In those circumstances the court determined that equity, good conscience and the substantial merits of the case would best be served by a re-hearing.
Re-hearing before the District Court
The matter was re-heard in this court.
With the agreement of the parties the court has had regard to the documentation provided by the parties, the claim and the defences, the filed submissions and responses, the material and evidence called before the Magistrate, and the further evidence and documentation called before this court.
The Wellingtons repeated and amplified the evidence they had given before the Magistrate. They agreed they had received a letter from Cruiseabout on 12 August 2015 specifically concerning the transfer arrangements whereby Cruiseabout indicated that the Wellingtons would have assistance from Virgin Airlines in Adelaide from check-in to plane, and from the airline in Sydney from plane to luggage carousel. The letter went on to inform the Wellingtons;
‘I’ve also requested with Virgin that the member of staff help get you to the coach too. Please note that this is a request and is something that we cannot guarantee. Please mention this to the staff member assisting you in Sydney. I have also spoken to Cunard who have confirmed that you will have assistance for embarkation and disembarkation.’
Mr Wellington then gave evidence that Simon the Cruiseabout representative said that he had arranged for the airline staff to take him in a wheelchair to the bus, but that when they were at Sydney airport nobody knew where the bus was parked. He said other travel representatives were there with signs, but there was no-one from Cunard.
The Wellingtons told the court they expected and assumed that someone from Cunard would be there with a sign. They said Mr Wellington waited at the carousel for half an hour in the Virgin wheelchair while Virgin staff and Mrs Wellington looked around but they couldn’t find anyone who knew anything about it. When asked why he could not just be wheeled to the nearby taxi rank, Mr Wellington responded that after half an hour the Virgin staff took the wheelchair back for another arriving plane.
Mrs Wellington corroborated her husband’s evidence about what happened at the carousel. She said that no-one was there with a sign or directions to the transfer, that they could not locate anyone from Cunard, that they made enquires, asked people, enquired at the ‘information’ counter, and eventually rang the Cunard contact number they had been given but it just went to messagebank.[9]
[9] T18.
The court was shown further documentation from Cunard indicating that Cunard were told that Simon the Cruiseabout representative had ‘called Sydney airport and confirmed that Mr and Mrs Wellington will receive assistance once at the Virgin baggage carousel.’[10] Then reference was made to a further Cunard note that the Wellingtons rang on the day and missed their transfer as they were waiting in the ‘incorrect area’, although the note is not clear as to exactly who provided that information to Cunard.
[10] Tendered as part of P1.
Mr Wellington submitted that it was common sense that if they booked a transfer someone should have been there at the airport to tell them where the bus would be. Mrs Wellington told the court that when they had first made the booking they had been told that a representative from Cunard or the Queen Mary would meet them at the airport.[11]
[11] T25.
Mr Wellington said he told Simon from Cruiseabout that unless he could get assistance they would not be taking the trip. He said that Simon rang Sydney Airport and Virgin Airlines and arranged with them for Virgin to supply the wheelchair and assistance to get them to the luggage, and to escort them to the bus, and that if Cruiseabout and Simon had not given him that assurance they would have cancelled the whole holiday.[12]
[12] T30-31.
Mr Wellington gave evidence as to the exacerbation of his condition, and tendered a bundle of medical material concerning his condition.[13]
[13] P4, tendered at T42.
Mr Reidy, Cunard business development manager also gave evidence. He repeated that Cunard told the travel agent that Cunard could not guarantee any assistance for the Wellingtons to get to the transfer coach at Sydney Airport. He said the coach had been parked out the front of the terminal in the coach transfers area. He said that Cunard did not provide a person in the airport with a sign, rather the person with the bus was responsible for picking the passengers up.[14]
[14] T46-48.
Mr Wellington put to Mr Reidy a travel agent document contained in exhibit P1 containing the words ‘Due to a regrettable error the Plaintiffs were not able to have their benefit of the transfer service and on that basis Cunard have refunded the Plaintiff in full’, suggesting this amounted to an admission that the transfer service was not provided. Mr Reidy responded that it was not a Cunard document, and that according to his head office the service was provided as other passengers boarded the coach to the terminal.[15]
[15] T50-51.
Mr Wellington put to Mr Reidy a Cunard document from P1 responding to the claim, which document asserted that Cunard’s agent had said that the Wellingtons were not in the ‘designated meeting space’, but that it was immaterial as wheelchair assistance would not have been provided anyway to the coach. Mr Reidy responded that there was a generic coach area straight outside of the terminal which was what he meant by designated meeting space, however when pressed he did not seem to know where that area was. He could also not comment on the proposition that the Wellingtons had not been told in correspondence where they were to meet the coach. He repeated that Cunard do not offer to or provide a service of meeting people inside the airport and assisting them to the bus transfer. He said that as the Wellingtons booked through a travel agent he could not comment on what information was provided by the travel agent about how to locate the transport.[16]
[16] T51-56.
It is clear from all the evidence that Cunard did not provide any documentation either specific or general that would indicate where passengers who were purchasing transfers from the airport to the ship would locate those transfers, or any way of checking or finding that out. Based on the Plaintiffs’ evidence I find that whilst Cunard did purport to provide a number to ring if there were any problems, that number was either not manned or was engaged such that it went to voicemail when the Wellingtons sought assistance thereby, and they were left without assistance.
Mr Wellington argued that it was just ‘not on’ for Cunard note to have anybody to meet people arriving at the airport who had contracted for a transfer from the airport. Mrs Wellington asked how they were supposed to locate a transfer at an airport they had never been to before, if they were not told where it was or directed or assisted to find it.
The Plaintiffs argued that Cunard had failed to provide the transfer, that the Plaintiffs were not given assistance from the carousel at Sydney airport to any such transfer by Sydney Airport or Virgin as they had been promised, and even if there was a transfer waiting for them somewhere the failure of anyone from Cunard to meet them in the airport meant they were left not knowing where to go and looking for someone to tell them where to go, and as a consequence they had to manhandle their own luggage to a taxi. Due to that, Mr Wellington says he suffered increased pain and injury and lack of mobility which meant he was virtually cabin-bound and needed to be cared for throughout the cruise by his wife. As a consequence he argues that he and his wife lost all enjoyment from the cruise and that they ought to receive a full refund.
Medical evidence
Mr Wellington tendered a bundle of medical material as P4. The events the subject of this claim occurred on 12 March 2015.
The first of the four documents comprising that bundle is a document titled ‘Progress notes for Kingsley Wellington’, from a GP Carol De Bricassart dated 1 March 2016. It notes that as at 1 March 2016 Mr Wellington was going to Thailand in three weeks, and that he has right knee joint line pain and tenderness on examination and is giving way, that he had cartilage surgery at the age of 15 after playing football and needs an MRI and specialist review. He is referred for an MRI with the words ‘acute trauma? Acute meniscal tear’. Travel medication for the Thailand trip was also prescribed. No MRI or other such 2016 scan was provided.
The second of four documents is a brief medical report from Dr De Bricassart dated 12 September 2016;
‘KINGSLEY HAS ASKED ME TO REPORT IN REGARD TO HIS CURRENT MOBILITY. HIS KNEE GIVES WAY 50% OF THE TIME WHEN HE ATTEMPTS TO STAND FROM SITTING. HE NEEDS TO ROCK APPROX 3 TIMES TO HELP GET UP. HE OCCASIONALLY HAS THE KNEE LOCK AND IS WORSE WHEN GOING DOWN STAIRS OR WHEN PUSHING UP TO STAND OR WALKING DOWN A SLOPE. HE CAN WALK 10-15 METRES BEFORE NEEDS TO STOP IN PAIN.’ (Report entirely in upper case)
The third document is Mr Wellington’s disability parking permit.
The fourth document is an imaging report dated 8 May 2014 for a right knee x-ray and a thyroid biopsy. This examination was accordingly just under a year prior to the cruise in question. The right knee x-ray findings are:
‘Mild to moderate patellofemoral OA. Mild to moderate OA of the lateral compartment. Small suprapatellar joint effusion. Patchy calcifications in suprapatellar pouch. Normal alignment. No fracture.’
None of this material directly supports the proposition that Mr Wellington was injured or negatively affected in any way by the fact that he was required to assist in manhandling his own bags from the luggage carousel to the adjacent taxi rank on 12 March 2015.
There is no direct medical evidence of any such injury, exacerbation of any condition or any increase in pain or discomfort on account of those events.
There is evidence from the Plaintiffs as to Mr Wellington’s subjectively perceived exacerbation of his condition, and from Mrs Wellington as to her observations and perceptions of it.
It is to be observed that the events did not prompt Mr Wellington to seek medical assistance at the time at the airport, or prior to boarding the ship, or at any time while on the ship. The only contemporaneous treatment undertaken was for Mr Wellington to take his already-prescribed Panadol more often. Nor is there any medical evidence that after disembarkation Mr Wellington consulted a doctor reporting any exacerbation of pain on account of the events at the airport. If he had done so, a note from that medical practitioner to that effect would have been easy to obtain.
That is not to entirely discount the Plaintiffs’ evidence as to the subjective pain and exacerbation, but rather to indicate that it was not serious enough to prompt or require any medical attention at any of the times indicated.
Factual findings
The court finds that both the Plaintiffs were honest witnesses and were by and large reliable. Mr Wellington and to a lesser extent his wife came across in evidence as frustrated and to some extent angry over the events the subject of the claim. That frustration and anger did colour their evidence in some respects.

The court also finds Mr Reidy an honest and reliable witness. Much of what he related was hearsay or in reliance upon Cunard documents produced after the event, which accordingly had little if any weight.
In the final analysis the court finds proven on the balance of probabilities that:
·The Plaintiffs contracted with Cunard via their travel agent to purchase Sydney airport to passenger cruise port coach transfers, for the purpose of embarking their Cunard cruise. No specific terms of any such contract have been provided to the court, beyond that there was an agreement that for the agreed fee Cunard would provide a coach transfer between the airport and the cruise port.
·The Plaintiffs discussed with their travel agent Mr Wellington’s need for physical assistance at every stage of their holiday, including from the Sydney Airport to the passenger cruise port.
·Cunard maintained, and specifically informed the travel agent, that they would not provide any assistance from the Sydney Airport luggage carousel or terminal to the coach providing the transfer, but that such assistance could be requested from airport staff but could not be guaranteed. The travel agent passed this information on to the Plaintiffs.
·The Plaintiffs were insistent on such assistance and the travel agent gave the Plaintiffs verbal assurances that Sydney Airport staff or Virgin Airlines staff would assist them to get from the luggage carousel to the coach transfer.
·There was never any overt or implied agreement or representation between Cunard and the Plaintiffs that as a part of the contract to provide the coach transfer, they would receive any physical assistance from Cunard between the luggage carousel and any coach transfer.
·There is insufficient evidence to determine whether Cunard actually supplied a transfer service at the airport at the time of the Plaintiffs’ arrival.
·Cunard provided no information prior to the event as to where the coach transfer might be located.
·Cunard either failed to provide the transfer, or if the coach was sent to the airport to provide the transfer service, the Plaintiffs did not locate it.
·Cunard failed to adequately signpost, direct, or advise either the travel agent or the Plaintiffs as to where the coach would be, such that the Plaintiffs could locate it.
·At Sydney airport it is common and expected for bus, car and holiday transfer operators to stand at the passenger exit to the luggage area with signs to attract the attention of persons arriving. No-one from Cunard or the supposedly contracted bus company was present at that place either when the Plaintiffs came though or for the subsequent period while the Plaintiffs searched the area for assistance.
·On arrival at the luggage carousel the Plaintiffs looked for and could not locate any indication of where the coach transfer might be located. They rang the contact number which went to voicemail and was of no assistance.
·In the absence of any such advice either generally to ticketed passengers or to the Plaintiffs or the travel agent, it would be reasonably expected that there would be a direction provided at the point of exiting into the luggage area as to where the Plaintiffs’ contracted transfer would be located.
·Mr Wellington suffers poor health and was at the time recovering from a hip replacement and taking pain medication in the form of Panadol.
·Mr Wellington suffered some increase in discomfort over and above his existing levels of pain and discomfort as a result of manhandling his bags towards the taxi rank, and this discomfort persisted for the duration of the cruise.
·It was a moderate rather than severe increase in discomfort, in that it did not prompt Mr Wellington not to board the cruise, nor did it prompt Mr Wellington not to remain on the ship for the full duration of the cruise, nor did it prompt the seeking of any medical attention at any contemporaneous time, nor the seeking of further or other pain medication rather than taking already-prescribed Panadol more frequently.
The law – implied terms
In certain circumstances, the law will imply a term into a contract. Such term will only be implied where the term is:
·Reasonable and equitable,
·Necessary to provide business efficacy to the contract,
·Must be so obvious that it almost goes without saying,
·Consistent with the contract and not contradictory to any existing term, and
·Can be clearly and certainly expressed.[17]
[17] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-3, Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605-6, Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347, The Moorcock (1889) 14 PD 64 at 68.
It is in the court’s view both reasonable and necessary in a contract for the provision of an airport transfer to provide advice at to where and how the transfer could be boarded. Airports are large, busy and often confusing places, particularly where, as must naturally be contemplated, passengers have never been to the airport in question before. It almost goes without saying that without such advice, there is no certainty whatsoever that passengers would be able to find the bus. There is no evidence of any contradictory term and the term can be clearly and certainly expressed.
I find in all the circumstances that there was an implied term in the contract between the parties to provide the airport transfer that Cunard would either provide advice ahead of time to passengers notably the Wellingtons as to how and where they should locate and board the bus or that advice or direction would be given to passengers as they arrived at the airport in question.
Breach of contract
On the basis of the found facts, I find that Cunard breached their contract with the Wellingtons to supply an airport transfer by either not providing the transfer at all, or by breaching the implied condition to either provide advice ahead of time to the Wellingtons as to how and where they should locate and board the bus and if not, provide that advice or direction as they arrived at Sydney airport.
I find that as a result of the breach, the Wellingtons could not locate the transfer, if in fact it was there, and lost the entire benefit of the contract. They are entitled to the return of the contractual fee paid for the transfer.
It is common ground that the fee has been refunded, indeed Cunard also paid for the taxi transfer, which they were not legally obliged to do.
It is clear on the evidence that Cunard never promised, agreed or contracted that the Plaintiffs would be provided assistance from the carousel to the coach, and clear that the representations made by Simon on behalf of Cruiseabout were that the Plaintiffs would receive assistance from airline or airport staff. Hence there was no express or implied agreement between the Plaintiffs and Cunard that they would receive assistance. Hence there can be no liability for breach of contract by Cunard on the basis that no assistance was provided.
In summary, Cunard breached their contract to provide a transfer, but there was no contract to provide physical assistance.
The Plaintiffs submitted however that their loss flowed from the breach of the contract to supply the transfer itself.
Is Cunard liable for consequential or further loss over and above the refund of the cost of the contracted transfer?
Where a party breaches a contract with another, the primary rule is that the party not in breach is entitled to recover damages occasioned by that breach. That principle is subject to qualifications, in particular causation and remoteness of the damage that is said to have resulted from the breach.
There are two important elements to this. Firstly, to be liable for the loss the breach of contract as a matter of ordinary common sense and experience must be regarded as the cause of the loss.[18] A causal connection can usually be established where were it not for the breach in question the loss would not have been suffered. Where there is more than one cause, liability will not be avoided so long as the breach remains a material cause and more than a minimal cause for the loss.[19]
[18] March v E & M H Stranmere Pty Ltd (1991) 171 CLR 506 at 522
[19] Alexander v Cambridge Credit Corporation (1987) 9 NSWLR 310 at 352.
Secondly, the Plaintiffs will not recover for the breach of contract if notwithstanding the breach may have caused the loss, the damage that flowed was too remote. To be recoverable, the damages must have flowed ‘according to the usual course of things’,[20] and in terms of foreseeability must have been ‘not unlikely’ to result from the breach.[21]
[20] Hadley v Baxendale (1854) 156 ER 145 at 151
[21] Koufos v C Czarnikow Ltd (1969) 1 AC 350 at 388, NAB v Nemur Varity Pty Ltd (2002) VR 252 at 270, Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344 at 365-370.
The basic principle as to remoteness of damage, was stated long ago in the following terms:
Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual order of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach.[22]
[22] Hadley v Baxendale (1854) 156 ER 145 at 151.
Therefore, for the Plaintiffs to recover for losses beyond the recovery of the contracted price, they must establish that the breach of contract was a material cause of their loss and that the damage that they claim they suffered was foreseeably likely to have resulted from the breach of contract.
In this case, the contract in question was to provide a Sydney airport to passenger cruise terminal coach transfer, containing an implied term to inform the Plaintiffs at the latest upon arrival at the airport where and how to locate and board the transfer coach. The loss and damage flowed from having to make their way unassisted to a taxi.
Did the failure to provide the transfer or directions to the transfer ‘cause’ the loss?
The first issue is whether the failure to provide that transfer was at least a material cause of the loss.
The Plaintiffs argue that if the transfer had been provided and they had been given direction or advice as to how to get to the coach, Mr Wellington could have been wheeled there immediately by the Virgin Airline Staff, and he would not have had to manhandle his baggage there because he would also have been able to get assistance with his bags to the coach. As it was, after half an hour or so of not being able to find out where to go, the airline needed their wheelchair back to meet a new flight, so he had to give up the wheelchair and manhandle his bags to a taxi.
On the other side of the coin, it might be argued that there were a number of ways the Plaintiffs could have safely got to the taxi without any harm to Mr Wellington, and therefore it could be argued that it was Mr Wellington’s election to try and walk carrying his own bags rather than take a safer alternative that caused any loss to him.
For example at any time up to or at the point when the airline indicated they needed their wheelchair back, Mr Wellington could have asked the airline staff to simply wheel him to the nearby taxi rank. Another option would have been to source a luggage trolley so that the bags did not have to be carried, pushed or dragged by anyone to the taxi rank but could be easily rolled on the trolley. Another option might have been to ask whether anyone else nearby, whether Airport staff or others could carry his bags to the nearby taxi rank.
The defendants might also argue that it was not their failure to provide the transfer that caused the suggested trauma to Mr Wellington, but either the failure of Simon from Cruiseabout to organise the requested assistance from the carousel (which would have then been available either to the coach or failing the appearance of the coach to the taxi) or the failure of airport staff or airline staff to provide the assistance that Simon from Cruiseabout had promised.
Cunard are not responsible for the availability of physical assistance from the carousel to the coach (or taxi). They never offered this assistance, and the assistance that Simon from Cruiseabout purported to the Plaintiffs that would be available, was to be from airline or airport staff. The lack of assistance from the carousel to transport is a factor in the cause of the Plaintiffs’ loss. That is not Cunard’s fault. On the other hand, had directions to an available transfer been provided by Cunard in a timely way, Mr Wellington would have been wheeled there by airline staff without incident.
Cunard’s breach of contract was rather to either fail to provide the transfer or fail to provide timely directions to where the coach was.
It is in the court’s view finely balanced as to whether the failure to provide the coach transfer itself was a material ‘cause’ of the Plaintiffs’ loss. It was one of several factors that together resulted in the loss. In the final analysis, I conclude it was material.
The court now turns to the second aspect of the test, that of remoteness.
Was the Plaintiffs’ loss too remote?
The legal test of remoteness is whether the damages either arose naturally, i.e. according to the usual order of things from the failure to provide the transfer, or whether the damages were reasonably to be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach.[23]
[23] Hadley v Baxendale (1854) 156 ER 145 at 151.
As to the first of these tests, any damages primarily arose when Mr Wellington was not assisted from the carousel rather than from a failure to provide the transfer itself. Assistance from the Carousel was no part of the contracted transfer. When the transfer did not materialise, the Plaintiff waited in his wheelchair with the airline staff who were assisting him. For half an hour they all tried to find the transfer or contact Cunard. Then when the airline staff needed to reclaim their wheelchair to assist others, the Plaintiffs made their way to a taxi under their own steam and the exacerbation of Mr Wellington’s condition occurred.
There was a whole series of events that occurred, including the Plaintiffs not being assisted from the carousel to the transport as promised by Simon from Cruiseabout, including options taken by the Plaintiffs when the transfer could not be located that involved not requesting Virgin staff to wheel Mr Wellington to the taxi rank, not seeking, locating or using other potential assistance to a taxi, such as use of a trolley or asking others. It was no further and no more difficult to get to the taxi rank, and no more difficult to take a taxi from the adjacent rank to the port, than it would have been to take a coach transfer from the adjacent coach area, and the taxi would likely provide the same or better actual transfer service.
Indeed an equivalent taxi service was available directly outside the terminal which would have been just as easy to take as the bus transfer, and all the same assistance, or lack thereof, was available whether the Plaintiffs were to move from the carousel to a coach transfer or to a taxi.
In the final analysis whilst there must be sympathy for the Plaintiffs who did not receive the transfer they had booked, it cannot be said that the damages arose naturally according to the usual order of things by the failure to provide the transfer, or in other words the damages were ‘likely to result from the failure to provide the transfer’.
In the same way, in light of that factual scenario, it must be considered whether the damages suffered by the Plaintiff would have been reasonably contemplated by Cunard at the time the contract for the coach transfer was made, as a ‘probable result’ of the failure to provide a transfer.
The coach transfer was one of several easy alternative ways to travel from Sydney airport to the passenger cruise terminal. It might be contemplated that a failure to provide the transfer in question might result in some momentary confusion, consternation and perhaps a short delay while one of the several alternative methods of getting to the ship were substituted by a passenger. In particular, there is an adjacent taxi rank providing a very similar service to the coach transfer. It was not likely to be contemplated at the time of the contract that carousel-to-transport assistance, which was to be organised by the travel agent and provided by an airline or the airport, would not be available to get the passenger to a taxi if the coach transfer was not provided, and on top of that that the passenger would elect to walk to the taxi and manhandle his own baggage despite physical disabilities which he knew meant he should not be attempting to manhandle his own baggage.
In the final analysis the court concludes that Mr Wellington’s claimed worsened medical condition and claimed reduction of the enjoyment of his cruise was too remote from the failure of Cunard to provide the transfer, to allow recovery of further damages.
Conclusion – Cunard breached their contract with the Plaintiffs to provide a coach transfer but the further damages claimed are too remote
Although the Plaintiffs have been successful in establishing that Cunard breached their contract to supply a transfer from Sydney Airport to the passenger cruise terminal, and were entitled to a full refund of the costs of such transfers (which they received prior to trial), the further damages they have claimed for an exacerbation of Mr Wellington’s medical condition affecting the Plaintiffs’ enjoyment of the cruise as a result of manhandling luggage and receiving no assistance to catch a taxi, are too legally remote from the breach of contract to be recoverable.