Moore v Scenic Tours Pty Ltd  HCA 17
Many of us have booked holidays, dreaming of the once in a lifetime experiences and services the glossy travel brochures promote.
But what happens when your booked itinerary is substantially altered by the travel provider? Do you have any rights under Australian Consumer Law if you’ve been left distressed and disappointed by the travel experience that was vastly different to the one you had signed up for?
The case of Moore v Scenic Tours Pty Ltd addresses this very issue. Progressing all the way to the High Court, the judgment, in this case, will have repercussions for both travellers and travel service providers. Read on to find out more.
Passenger rights when a cruise ship itinerary changes
Mr Moore and his wife booked a luxury European river cruise with Scenic Tours 18 months prior to its departure in June 2013. Scenic Tours had advertised that their cruises would provide a luxurious, five-star, all-inclusive European experience.
In the months before the scheduled cruise, Europe experienced heavy rainfall and flooding. The cruise ship was impacted by high water levels and as a result, the cruise ship itinerary was modified substantially.
Instead of cruising the rivers on a luxury vessel, passengers spent hours on buses being shuttled between locations. Passengers were also required to change ships on two occasions. By the end of the trip, Mr Moore and his wife had boarded three different Scenic cruise ships.
A class action was commenced in July 2014 in the Supreme Court of New South Wales against Scenic by Mr Moore on behalf of approximately 1,500 passengers of 13 Scenic cruises.
The case alleged that it should have been apparent to Scenic Tours that the condition of the European rivers was such that the luxury river cruises could not take place, or if it was apparent, it would result in a substantial disruption to the scheduled itinerary. The case was brought on the basis of a breach of the consumer guarantees provided in Australian Consumer Law (ACL) regarding ‘fitness for purpose’ and ‘due care and skill’ as the cruise experience did not match the service that was originally promoted.
Scenic argued that the services provided were defined by the contract and its terms and conditions - not by the ACL. They claimed that they were therefore not in fact in breach of any guarantees, and the services provided were reasonable considering the circumstances.
Scenic claimed that the services it was contracted to provide were:
- A tour at a particular time, which included a river cruise to the extent that river conditions allowed it
- To use reasonable endeavours to provide the tour booked in accordance with the itinerary, and
- To use reasonable efforts to substitute where required, a motor coach for a vessel, for example.
What are the legal obligations a provider of travel services has to its customers?
The Supreme Court’s findings
In addition to the obligations Scenic Tours had under its contract with Mr Moore, the Supreme Court found that Scenic Tours also had obligations under the ACL.
As a result, the Court found that:
- Scenic Tours should have contacted passengers, informed them of the circumstances and facilitated cancellation of the cruise; and
- Scenic Tours’ substitution of a “land alternative” to replace the luxury all-inclusive cruising experience was not reasonable or appropriate.
The Court ordered in favour of Mr Moore and awarded $10,990 to for the breach of the consumer protections under the ACL (which refunded him for the holiday expense) and $2,000 for disappointment and distress suffered as a result of the breaches.
The Court of Appeal
Scenic Tours fought the Supreme Court’s decision by pursuing the case through the Court of Appeal, which resulted in a ruling in Scenic’s favour. The Court of Appeal found that based on certain provisions of the Civil Liability Act 2002 (NSW) (CLA), passengers of the luxury river cruise in Europe should not be compensated for the distress and disappointment they experienced after having their itineraries substantially altered.
As a result, Mr Moore’s claim for damages was dismissed. Mr Moore appealed this ruling, progressing the case to the High Court.
The outcome of Moore v Scenic Tours Pty Ltd
On 24 April 2020, the High Court overruled the Court of Appeal’s judgment and found in favour of Mr Moore. The Court found that:
- The CLA does not prevent a compensation claim for disappointment and distress if those damages weren’t the result of a physical or psychiatric injury; and
- That loss consisting of disappointment and distress for breach of a contract to provide a pleasurable and relaxing experience, is not related to making a personal injury claim for a physical or psychiatric injury.
This therefore meant Mr Moore was able to recover damages for disappointment and distress.
So, what does this mean for you as a traveller?
The outcome in the case of Moore v Scenic Tours Pty Ltd  HCA 17 is a win for travellers who have had their holiday itineraries substantially altered by travel providers, without being given the opportunity to obtain refunds or cancel their plans. Travellers can now be compensated for disappointment and distress if their travel experience was vastly different to the one they had signed up for.
How can Shine Lawyers help?
Shine Lawyers’ Travel Law and Class Actions teams are experts in helping consumers to protect their rights and to seek justice for a wrongdoing. Click here to find out more about our ongoing class actions and investigations, or contact us today to speak to our travel team about your claim.
Written by Shine Lawyers. Last modified: June 3, 2020.