Moore v Scenic Tours Pty Limited

Catchwords

(2009) 239 CLR 420 Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Baltic Shipping Co v Dillon [1993] HCA 4(1993) 113 ALR 677 CPA Australia Ltd v Storai [2015] VSC 442(2011) 243 CLR 149 IW v City of Perth [1997] HCA 30(1997) 191 CLR 1 Jarvis v Swan Tours Ltd [1972] EWCA Civ 8[1973] QB 233 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36(1999) 90 FCR 274 Lipohar v The Queen [1999] HCA 65(1999) 200 CLR 485 Moran v McMahon (1985) 3 NSWLR 700 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361(2013) 86 NSWLR 55 National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15(1961) 105 CLR 569 Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155(2014) 226 FCR 471 Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62(1968) 119 CLR 118 Redding v Lee [1983] HCA 16(1983) 151 CLR 117 Regie National des Usines Renault SA v Zhang [2002] HCA 10(2002) 210 CLR 491 Rogers v Nationwide News Ltd [2003] HCA 52(1978) 35 FLR 372 Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55

Judgment (90 paragraphs)

[1]

Pty Ltd v Kelly [2013] NSWCA 361; (2013) 86 NSWLR 55 National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; (2014) 226 FCR 471 Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 Redding v Lee [1983] HCA 16; (1983) 151 CLR 117 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Rogers v Nationwide News Ltd [2003] HCA 52; (2003) 216 CLR 327 Shoalhaven City Council v Pender [2013] NSWCA 210 Trade Practices Commission v Legion Cabs (Trading) Co-Operative Society Ltd [1978] FCA 47; (1978) 35 FLR 372 Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 Uniting Church in Australia Property Trust v Miller [2015] NSWCA 320; (2015) 91 NSWLR 752 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Young v Insight Vacations Pty Ltd [2009] NSWDC 122 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: David Moore (P) Scenic Tours Pty Limited (D) Representation: Counsel: A Abadee (P) G McNally SC (26, 27 April 2016) / D S Weinberger / A Jordan (11, 12 May 2016) (D)

[2]

Solicitors: Somerville Legal Pty Ltd (P) McCabes Lawyers (D) File Number(s): 2014/223271 Publication restriction: Not Applicable

[3]

TABLE OF CONTENTS Judgment Table of Cruises The Scenic Group Senior Members of Scenic and Associated Companies Plaintiff's Claim The Case for the Defendant Shape of the Hearing A Late Amendment Mr Moore's Experience Mr Moore's Agreement with Scenic Scenic's Knowledge of River Levels Amsterdam to Budapest Intended Itinerary Budapest to Amsterdam Cruise Consumer Guarantees Scenic's Brochure Terms and Conditions Services The Guarantees The Purpose Guarantee: s 61(1) of the ACL The Result Guarantee: s 61(2) of the ACL Due Care and Skill Guarantee: s 60 of the ACL Defences to the Guarantees Application of Purpose and Due Care and Skill Guarantees to the Cruises Cruise 1: South of France River Cruise commencing 19 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 2: Budapest to Amsterdam departing 20 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 3: Amsterdam to Budapest departing 25 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 4: Amsterdam to Budapest departing 27 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 5: Budapest to Amsterdam departing 27 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 6: Amsterdam to Budapest departing 29 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 7: Budapest to Amsterdam departing 29 May 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 8: Amsterdam to Budapest departing 3 June 2013 The Cruise Purpose Guarantee Analysis Due Care and Skill Guarantee Cruise 9: Budapest to Amsterdam departing 8 June 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 10: Amsterdam to Budapest departing 10 June 2013 The Cruise Purpose Guarantee Analysis Due Care and Skill Guarantee Cruise 11: Budapest to Amsterdam departing 10 June 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 12: Amsterdam to Budapest departing 12 June 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Cruise 13: Budapest to Amsterdam departing 12 June 2013 The Cruise Purpose Guarantee Due Care and Skill Guarantee Application of the Result Guarantee to the Cruises Damages Compensation for Reduction in Value Claim for Damages Pursuant to s 267(4) of the ACL Extra-territoriality Statutory Context Assessment of Damages Restitutionary Judgment for Money Had and Received Summary Common Questions Orders

[4]

Judgment

The plaintiff, Mr David Moore, a school teacher, brings proceedings claiming compensation and damages, together with alternative relief arising out of a European river cruise that he and his wife (Janet Howell) took during June 2013.
Mr Moore's tour, which included an initial stay in Paris for a few nights, was booked 18 months prior to its departure date and paid for, in full, about 12 months before the cruise commenced. It was timed to take place during a period of long service leave taken by Mr Moore and was much anticipated. The long awaited cruise was intended to depart from Amsterdam, travel along the Rhine River, the Main River, the Main/Danube Canal and the Danube River to Budapest.
The defendant, Scenic Tours Pty Ltd ("Scenic") provided this tour, either by itself or its associated entities. In its brochure, which Mr Moore read, the founder and managing director of Scenic, Mr Glen Moroney, invited Mr Moore and other guests to join Scenic for "… a once in a lifetime cruise along the grand waterways of Europe" during which, whilst on board a Scenic ship, they would " … be immersed in all inclusive luxury". Mr Moroney assured readers of Scenic's brochure that their entire journey would be "truly unforgettable".
Mr Moore claims that his journey was, on the contrary, one which he would rather forget.
In the events which happened, Mr Moore claims that rather than experiencing a once-in-a-lifetime luxury river cruise along the promised waterways on a Scenic ship, his experience was one of being shuffled around Europe, largely by coach, for a great part of the trip and changing ships on two occasions so that by the time he disembarked in Budapest, he had experienced three different Scenic ships and that far from his cruise being one where he was immersed in all-inclusive luxury, he experienced something entirely different.
The disruptions to the planned itinerary of Mr Moore's cruise were caused by the decisions made by Scenic when confronted with high water levels on the rivers and extensive rainfall which occurred in Europe during May and June 2013. Many towns and cities in Europe, particularly those along the identified waterways, were flooded. Locks along the rivers were either damaged or inoperative. Ships were unable to pass under bridges crossing the rivers and some docking facilities could not be used and had been washed away.

[5]

Table of Cruises Cruise Number Departure Date Route Scenic Code

        19 May 2013     Saone/Rhone Rivers, France  FRCR 190513.1

        20 May 2013     Budapest to Amsterdam       STC 200513.2

        25 May 2013     Amsterdam to Budapest       EGFC 250513.1

        27 May 2013     Amsterdam to Budapest       STC 270513.1

        27 May 2013     Budapest to Amsterdam       STC 270513.2

        29 May 2013     Amsterdam to Budapest       STC 290513.1

        29 May 2013     Budapest to Amsterdam       STC 290513.2

        3 June 2013     Amsterdam to Budapest       STC 030613.1

        8 June 2013     Budapest to Amsterdam       EGRC 080613.2

       10 June 2013    Amsterdam to Budapest       STC 100613.1

       10 June 2013    Budapest to Amsterdam       STC 100613.2

       12 June 2013    Amsterdam to Budapest       STC 120613.1

       12 June 2013    Budapest to Amsterdam       STC 120613.2

[6]

As can be seen from the Table of Cruises, for the ships sailing from Amsterdam to Budapest the numerical extension ".1" was used. For ships sailing in the opposite direction, the numerical extension ".2" was used. Cruises 3 and 9 were conducted by Evergreen Tours Pty Ltd ("Evergreen") which is part of the Scenic Group.
In this judgment it will be convenient to refer to the cruises by their allocated cruise number, which is chronologically sequenced by departure date.

[7]

The Scenic Group

The evidence and documents which were tendered identified a number of individuals and corporate entities which were closely associated in the provision of services by Scenic to the plaintiff and group members. They can all be loosely and for convenience described as forming part of the "Scenic Group".
As just mentioned, Evergreen was one such corporate entity. It published promotional material which was very similar in composition and style, and content, to that published by Scenic. It operated its tours on ships, the names of which all commenced with the title "Amadeus" rather than the title "Scenic". Evergreen operated from the same offices in Newcastle as did Scenic. As the internal correspondence showed, Scenic and Evergreen shared an Operations Manager, Ms Scoular, and were in all respects regarded as the same organisation. On the back page of its brochure, Evergreen described itself as "…a division of Scenic Tours". No submission was made to the Court that Scenic and Evergreen should be regarded as separate or distinct entities for any purpose.
Scenic Tours Europe AG ("Scenic Europe") is another company identified in the documentary evidence. Mr Lucas Sandmeier was its Managing Director. It appears that Scenic Europe was based in Zug in Switzerland. It seems that it was responsible for managing all aspects of Scenic cruises in Europe. There were considerable internal emails and correspondence between Scenic Europe and Scenic. Employees of both Scenic and Scenic Europe used the same email addresses. After their individual names, their email addresses were all "…@scenictours.com". Clearly, they were both closely associated and worked jointly in the provision of services to booked passengers both before they embarked in their cruise and during their cruise.
Although there was tendered in evidence a formal Services Agreement between Scenic and Scenic Europe, and Scenic pleaded that Scenic Europe was an "independent contractor" Scenic did not ever suggest or submit that it could not be held liable for the conduct of Scenic Europe. There was no evidence as to whether these companies were in common ownership, or what their respective governance structures were. However, the plainest inference arises from all of the evidence in the case that these companies were operating jointly and were closely associated. Counsel for Scenic did not submit otherwise.

[8]

Senior Members of Scenic and Associated Companies Name Role\Position Mr Glen Moroney Founder and Managing Director of Scenic Tours Mr Justin Brown General Manager Operations and Administration of Scenic Tours Ms Donna Willis Customer Liaison Manager for Scenic Tours Ms Kim Scoular Operations Manager, Scenic and Evergreen Tours Mr Angus Crichton General Manager of Evergreen Mr Lucas Sandmeier Managing Director of Scenic Tours Europe AG Ms Melanie Koch Operations Supervisor Cruises and Extensions Scenic Europe Ms Alexandra Graeff Operations Manager of Scenic Europe Ms Emma Lindsay Operations Manager - UK Scenic Tours Mr Leo Beilmann Operations Manager of AGIS, a French-based Nautical Agency

[9]

Plaintiff's Claim

The plaintiff's claim is contained in the Third Further Amended Statement of Claim ("3rd FASC"), ultimately filed in Court on 12 May 2016.
The first and principal claim is an order for compensation pursuant to s 267(3) and/or s 267(4) of the Australian Consumer Law ("ACL"). A second and alternative claim is for an order for personal injury damages pursuant to Part VI B of the Competition and Consumer Act 2010 (Cth) ("Competition Act"). This second claim was ultimately not pursued. In the alternative to both of those claims, the plaintiff makes a claim for restitution.
There are six other prayers for relief in the 3rd FASC which deal with the capacity of the defendant to enforce various terms and conditions of the contract entered into between Scenic and the plaintiff. These claims in part depend upon the matters pleaded by Scenic in its defence. It will be convenient to discuss these claims in due course.
It is clear from the pleading and submissions that the plaintiff's case is a narrow one. He does not sue for damages for the tort of negligence, nor for damages for breach of contract. His claim does not rely upon a breach of the statutory prohibition on conduct which is misleading or deceptive, or likely to mislead or deceive: s 18 of the ACL. Rather, he sues only on the basis of a breach of one or more of the statutory guarantees provided in ss 60, 61(1) and 61(2) of the ACL.
The plaintiff's claim for damages seems, together with the other group members, to have these elements: 1. the plaintiff and group members were consumers within the meaning of the ACL and acquired "services" from Scenic in that capacity; 2. the services that were acquired, and which were provided in trade or commerce, were that Scenic would arrange for and provide luxury cruises along European rivers for the use, amusement, entertainment, recreation or instruction of the plaintiff and group members; 3. included in those services was an obligation on the defendant in arranging the cruises to monitor and assess, prior to and after the dates for departure of the cruises, whether the planned tour itineraries could proceed in accordance with existing arrangements, or whether the tours should be varied, cancelled or delayed. Necessarily part of these services was a requirement reasonably to communicate that information to the plaintiff and group members.

[10]

The Case for the Defendant

Scenic contends that the poor weather, the very high river levels and flooding with the consequent adverse impact on navigation and on the timely operation of locks and the provision of docking facilities, amounted to circumstances entirely beyond its control and for any consequences of which it ought not be held liable. It contended that changing weather and variable river heights were an ordinary incident of river cruising which ought to be anticipated by its passengers. Speaking generally, it contended that these were risks for passengers to have regard to in considering whether to book a river cruise, when it should be booked for and what travel insurance should be arranged to enable the passengers to deal with those risks. As well, Scenic submits that such was the extent of the flooding and high water that it could not have been expected to predict or anticipate it.
The central contention in the defendant's case, but not the only contention, is that the services which it provided are not defined in the same way as that contended for by the plaintiff. Rather, the defendant defines the services which it provided in this way: "… the services which Scenic was contracted to provide was a tour at a particular time, which included a river cruise to the extent that river conditions allowed it; to provide 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."
The defendant's case is that such a definition of services is the only one which sits consistently with the key provisions and fundamental terms and conditions of the contract entered into by the plaintiff and each group member.
Scenic points, in support of its definition, to terms which required it to use reasonable endeavours to provide the booked tour but, where Scenic was unable to provide the booked tour in accordance with the itinerary, its only obligation was to use reasonable endeavours to provide or arrange appropriate alternatives. In particular, Scenic points to the clause which entitles it to vary a tour and to substitute another vessel or motor coach for all or part of the itinerary, subject only to the fact that such alternative vessel or motor coach was "at the nearest reasonable standard".
Scenic accepts that it was providing each of the tours at a particular identified time. It also accepts that monitoring and managing the tour were necessary requirements of the terms and conditions of the contract. It follows that they are a part of the services which it provided. The defendant's submissions highlight the difference in this way, namely that Scenic seeks to argue that the nature of the services which it provides cannot be defined by the provisions of the consumer guarantees, but rather only by the contract, and all of its terms and conditions.

[11]

Shape of the Hearing

The Court embarked upon a hearing of evidence. It indicated to the parties that the matters to be determined by the evidence led during the course of that hearing would be the whole of the plaintiff's claim and the common issues insofar as they affected the group members' claims, and insofar as they were common to the whole or an identifiable part of the group. Those common issues were identified, in their final form, in a document filed in Court on 13 May 2016.
In light of the any in which this judgment deals with the extensive matters of fact which were in issue, it will be appropriate for the parties to have the opportunity to consider, and make submissions on, the findings relevant to these common issues and the precise answers which ought be recorded after they have had the opportunity to consider these reasons.
In those circumstances, identification of those common issues and possible findings can appropriately await a further judgment. This is not atypical in representative actions: see Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180.

[12]

A Late Amendment

When the hearing commenced, the plaintiff was proceeding on the basis of the Second Further Amended Statement of Claim, which had been filed on 26 April 2016.
When the plaintiff's final written submissions were provided to the defendant, the defendant submitted that some of those submissions travelled outside of the existing pleadings and ought not be permitted by the Court to be considered. In particular, the defendant was concerned with a number of allegations about how Scenic was in breach of the due care and skill guarantee in failing to offer passengers on some cruises an opportunity to cancel those cruises either prior to embarkation, or at a time during the course of the cruise.
During final oral submissions, counsel for the plaintiff sought leave to amend the existing pleading. In so doing, he submitted that such an amendment was not strictly necessary in light of the way he had opened and conducted the plaintiff's case. The defendant consented to some of the amendments, namely those in paragraph 12(e) of the existing pleading, but opposed the addition of paragraphs 12(ea) and 12(eb) together with consequential amendments to paragraphs 13 and 14 of the proposed pleading.
When the application for amendment was made, and after the plaintiff completed his submissions, counsel for the defendant opposed the application on a number of grounds. One was the self-evident lateness of the application. The second was the absence of any affidavit of explanation as to the reason why the application was being so late. Another was that had the defendant been aware earlier of the amendment, then it may have conducted its case differently.
The defendant was given a short adjournment to enable it to consider this submission, to identify with some precision whether it would have taken a different approach and, if so, what that may be. The time was also given to enable it to further consider its position generally. That was obviously an important matter on the question of the possible prejudice which Scenic may suffer if the late amendment were allowed.
Upon resumption, counsel for the defendant, whilst maintaining its opposition to the amendment, informed the Court that the time allowed had been adequate and that Scenic did not wish to call any further evidence, nor did it wish an opportunity to further consider whether to adduce further evidence. Counsel confined his submissions on prejudice to the existence of corporate stress brought by reason of the litigation and Scenic's desire to have the litigation conclude as soon reasonably possible.

[13]

Mr Moore's Experience

In October 2011, Mr Moore, who was then teaching science at a senior college on the Central Coast, decided with his wife, Janet Howell, to book a holiday with Scenic. Before doing so, he obtained a number of brochures including one about a wide range of Scenic cruises including those along the waterways between Amsterdam and Budapest. In addition, Mr and Mrs Moore were attracted to the tour being operated by Scenic because they had seen an ad on television.
Mr and Mrs Moore went to Harvey World Travel, a retail travel agent in Warners Bay. They did so to collect a large brochure of the kind which is in evidence, and which I have described elsewhere in the judgment. They had not been to the travel agent before, and did not ask any questions at the time of collecting the large brochure.
Although there is no direct evidence on the topic, I would readily infer from the evidence of other passengers who obtained a similar brochure, and the terms of it, that the brochures were prepared and printed by, or at the behest of, Scenic and distributed to a large number of travel agents around Australia by Scenic, to promote its cruise program.
Mr Moore had not travelled overseas extensively prior to this occasion. He had undertaken one previous trip about 20 years before visiting Harvey World Travel, which was to China as part of a sporting team visit to that country. He did not attend to any of the booking arrangements, and travelled as one of the group on that trip. He relied upon the organisers of that sporting event to undertake all of the appropriate arrangements.
Mr Moore said, and I accept, that he and his wife were interested in the Scenic cruise because they liked the idea of having to unpack their belongings once only, and then still be able to see a number of locations in Europe by cruising along the waterways. This was of particular significance to Mr Moore who had had spinal surgery in 1993 and found it difficult to spend extended periods of time sitting down, particularly in confined spaces.
Having considered the matter with his wife, Mr Moore decided to book a cruise with Scenic, in particular the one which departed Amsterdam for Budapest on 3 June 2013, namely Cruise 8. Mr Moore in fact booked a package described in the Booking Advice issued on 6 September 2012, as "Paris and Jewels of Europe (PACR 310513.1) from Paris to Bud". In essence, Mr Moore and his wife flew to Paris, arriving on 1 June 2013, staying for two nights in a Paris hotel, before travelling by train to Amsterdam to embark on Cruise 8. There is no suggestion that the time spent in Paris was as a part of a designated group tour. The specific package (if it was one) was not mentioned in the brochure or separately identified.

[14]

Mr Moore's Agreement with Scenic

As noted earlier, the plaintiff had collected the large brochure which was 225 pages long, published and distributed by Scenic, from Harvey World Travel and, after a period of about four weeks, returned and paid a $500 deposit for the cruise. Other passengers obtained an identical brochure. It was tendered in evidence. It is that brochure which will be referred to as "the Brochure". There may have been other versions of a brochure printed and distributed, but none were relied upon in submissions.
In the course of cross-examination, the plaintiff was taken to various parts of the paperwork that he had entered into. When he was taken to the Brochure he was shown various references in it to the existence of terms and conditions. He gave evidence that he did not see, or notice, those terms and conditions. In particular, he said, and I accept, that he did not see the two pages of terms and conditions in a small font printed towards the back of the Brochure. He said, and I accept, that whilst he was taken to the page of the Brochure showing the deck plan by the agent at Harvey World Travel, he was not taken to the two pages showing the terms and conditions.
According to his statement, Mr Moore and his wife paid the full amount for their cruise during the period 21 May 2012 and 14 January 2013. After making his final payment, he received a personalised booklet from Scenic which provided an itinerary and a map of the cruise. It also included Scenic's terms and conditions. That was the first occasion upon which he received a copy of the terms and conditions (other than as part of the Brochure).
At some stage, although he did not recall when, Mr Moore signed a copy of a document received from Scenic which included terms and conditions. This must have occurred after his final payment in January 2013. He glanced over the document before he signed it, and was taken through it by the travel agent who pointed out some parts of it to him.
Counsel for Scenic in cross-examination proceeded from a document consisting of eight pages and headed "Terms and Conditions for booking 294713". That booking number was the one provided by Scenic relating to Mr Moore and his wife in its booking advice of 6 September 2012.
The final page of the terms and conditions for the booking document had the typed names "Mr David Moore and Ms Janet Howell", but no signatures. It was apparent from the footer on the document that it had been printed out on 23 September 2014. There is no date in the body of the document itself.

[15]

Scenic's Knowledge of River Levels

Scenic's knowledge about the extent of the flooding and of the river levels in Europe is to be gleaned from the various documents including emails that are in evidence and the comments made by Cruise Directors to passengers. As well, Scenic tendered a series of contemporaneous, or else reasonably contemporaneous, reports compiled by the Cruise Directors as to what was happening on individual cruises as that cruise unfolded. No witness was called by Scenic to give evidence about the extent of Scenic's knowledge of these matters.
As well, other documents were tendered from which knowledge by Scenic of the situation can be inferred. I accept the plaintiff's submission that if there were reports in the newspapers or available from media sources such as television news, about the extent of flooding in the relevant areas, it could be reasonably expected that Scenic would have known about those reports and the material contained in them. Indeed, the Cruise Director on Mr Moore's cruise knew of these reports because he discounted them saying that they were inaccurate. I do not think that he would have done so unless he had read, watched or heard them.
I have attempted, where possible, to trace Scenic's knowledge of the situation in chronological form. In tracing this factual information it is important to recognise first, the length of the river system being traversed between Amsterdam and Budapest (about 1,790km), and the fact that over that length there are many different catchment areas feeding into the rivers and that the flows of water from one part of those catchment areas would not always be identical with other parts. Secondly, it is important to recognise that reports of changes in river heights on the Saône/Rhône river cruises were not directly applicable to the cruises on the Rhine, Main and Danube Rivers.
Nevertheless, a report of severe weather conditions and rising river levels in one region in Europe is relevant in determining whether a company such as Scenic was or ought to have been alert to, taken notice of and, where appropriate, reacted to weather conditions in the areas along which their cruises were intended to travel.
As will be apparent from this chronological overview, Scenic's knowledge of weather and river conditions was first identified with respect to the cruises which were, or else were to be, taking place in France on the Rhône River and the Saône River. It seems from the evidence that these rivers experienced high water levels and flooding at an earlier point in time than the rivers further north in Europe.

[16]

Amsterdam to Budapest Intended Itinerary

According to the brochure which was published by Scenic, the Amsterdam to Budapest cruise involved 15 days and 14 nights. In addition, five trips were identified and described as "Scenic Free Choice" or "SFC" which involved travel away from the river by road transport. The brochure noted a number of city tours of those cities along the rivers at which stops would be made. In some cases, the mode of transport for those city tours was identified e.g. "walking tour, guided bicycle tour or canal cruise". In other cases, the mode of touring of those cities was not identified. No doubt, in the larger cities such as Vienna and Budapest, it would not be unreasonable to have assumed that the city tour involved some travel by coach and some by walking. The brochure did not suggest that any road or coach transfer would be required between the place at which it was intended the ship would dock and the city or town adjacent to the dock. The brochure made it clear that independent sightseeing was available in almost all of the cities and towns which would be visited along the route.
The standard itinerary provided for two nights of accommodation on board whilst the ship remained berthed in Amsterdam although it does appear that the ship would sail from Amsterdam late on the second evening. At the end of the tour, on day 14, the ship would arrive, apparently quite early in Budapest, where the ship was to remain all day, including providing accommodation overnight and from which the passengers would depart on day 15. Thus the first two days and the last two days did not involve any cruising other than during the late evening or early morning.
It also appears that the ship would be docked in Vienna over two days, which included a night whilst docked in the city. By deduction, from the itinerary it would appear that the ship was due to arrive in Vienna sometime on the evening of day 11. Thereafter, although there would be four nights' accommodation on the ship in the cities of Vienna and Budapest, there would be limited cruising from Vienna to Budapest on the afternoon and evening of day 13 and perhaps the early morning of day 14.
The brochure noted the following Scenic Free Choice tours which must have involved transport by coach. The first was a visit from Cologne to Dusseldorf whilst the ship was stopped in Cologne. That is a distance of about 40km by road. An alternative guided walking tour of Cologne was offered. The second Free Choice tour was by road was from Würzburg to Rothenburg, a distance of about 65km. An alternative was offered to that journey of a walking tour of Würzburg including a private wine tasting.

[17]

Budapest to Amsterdam Cruise

The same conclusions can be readily reached with respect to this cruise because the itinerary is the reverse of the previous one. It is also described as a 15 day/14 night cruise from Budapest to Amsterdam.
The first two days of the cruise are spent in Budapest and the last two days of the cruise are spent in Amsterdam. The ship would seem to leave Budapest late on the evening of the second day of the cruise and arrive in Vienna on the morning of the third day. It was planned for the ship to spend most of two days and one night in Vienna, and then cruise to Durnstein and Melk on day 5, arriving in Durnstein in the morning. The final night of cruising between Dusseldorf and Amsterdam is on the evening of day 13. The ship arrives in Amsterdam, according to the itinerary, on the morning of day 14 and then remains there overnight until day 15.
The same free choice tours as for the itinerary from Amsterdam to Budapest are also offered and, essentially the same description of events is provided.
Again, I conclude that of the 15 day cruise, at least 10 days were intended to be spent with daylight or early evening cruising for substantial parts of those days.
As there is only one cruise to be dealt with in these proceedings involving rivers in France, the planned itinerary will be dealt with in detail when considering what happened on that cruise.
Against that background, it is necessary to examine what happened on each cruise, but it is convenient first to consider the obligations of Scenic under the ACL to the passengers on each of the cruises so that appropriate findings can be made at the end of the consideration of the facts of each cruise.

[18]

Consumer Guarantees

The plaintiff seeks to rely upon three statutory guarantees set out in the ACL.
The first is contained in s 60, which is in the following terms: "60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill."
The next two statutory guarantees are those contained in s 61 of the ACL, which is in the following form: "61 Guarantees as to fitness for a particular purpose etc. (1) [Services reasonably fit for particular purpose] if: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer; there is a guarantee that the services, and any product resulting from the services will be reasonably fit for that purpose. (2) [Guarantee that services will achieve desired result] if: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieved that result."
Section 61(3) of the ACL provides an exception to the guarantee of fitness for a particular purpose. It provides: "This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier."
Scenic did not rely on this exception.
"Services" as a term is described by an inclusive definition in s 2 of the ACL in the following way: "Services includes: (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that, or are to be, provided, granted or conferred under: (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or … but does not include rights or benefits being the supply of goods or the performance of work under a contract of service."

[19]

Scenic's Brochure

The commencement point of that identification is the Brochure which it seems was distributed broadly. This Brochure precedes any agreement between Scenic and a prospective customer. It is the source of the description of the services which are to be provided, and forms the principal basis by which consumers are informed of the available services.
The Brochure is large, printed on glossy paper with many photos. It is an enticing document, no doubt designedly so, which promises in many different ways a luxurious and all-inclusive river cruise. The cover of the Brochure is entitled: "EUROPE RIVER CRUISES AND TOURS"
Underneath the title is a large photo which occupies most of the cover. It depicts a Scenic "Space-Ship" which has balcony suites cruising along an unidentified river with a panoramic view of the adjacent landscape dominated by a large castle located on a hill top.
On the first page of the Brochure, there is a letter of welcome written by Mr Glen Moroney who describes himself as the Founder and Managing Director of Scenic Tours. Amongst other things, Mr Moroney writes: "It's my pleasure to invite you to join Scenic Tours for a once-in-a-lifetime cruise along the grand waterways of Europe. … the minute you step on board a Scenic 'Space-Ship' you will be immersed in all-inclusive luxury. Meticulous attention to detail, first-class service and intimate personal touches ensure your entire journey is truly unforgettable. .. All Scenic 'Space-Ships' … Providing the most comfortable river cruising experience on the market no matter the weather. … Our relaxing River Café is open for all day grazing including barista coffee and gelato … … Scenic Tours is the leading operator of All-Inclusive and fully escorted luxury river cruising tours in Europe."
Passengers are promised impeccable hospitality and unforgettable experiences.
Immediately after the letter of welcome is a page which extends three pages in width. It features the phrase "All-Inclusive Luxury" in large font. In an extended photo across all three pages, a ship called "Scenic Sapphire" is featured on a river in Europe. It describes what is offered in a variety of ways, including the following descriptions: "INCLUDED Three viewing decks. Be spoilt for choice with three outdoor viewing areas. Observation deck, observation lounge and the sundeck. INCLUDED Complimentary beverages, all day every day. Enjoy complimentary drinks at any time of the day from fine regional wines and boutique beers to barista coffee."

[20]

Terms and Conditions

The defendant contends that the terms and conditions contained in the Brochure are of significance in these proceedings. Scenic submitted that the terms and conditions play two separate roles. First, they fall to be considered in understanding what services are to be provided, and, secondly they are to be considered when evaluating any claim under the statutory guarantees against Scenic. It is convenient at this point to set out the relevant terms and conditions and describe the context in which they appear in the Brochure. I should note that the Terms and Conditions in the Evergreen brochure are in identical terms. There is no need to refer to these terms and conditions separately.
As I have earlier noted, the Brochure is a glossy colour brochure of 225 pages. The first 39 pages are devoted to describing the benefits of all‑inclusive luxury European river cruising containing the material referred to above. On pages 40 and following, the Brochure describes individual itineraries for a large number of cruises. At page 122, the Brochure commences describing the experience of river cruising in Southern France. This description is followed by a further series of individual cruises, cruises and tour indexes.
The Terms and Conditions are contained on pages 218 and 219 (namely, almost at the very end of the document). Each of these pages is divided into three vertical columns full of very small print. It would not be an exaggeration to say that the ordinary reader who wished to read these terms and conditions carefully would need a magnifying glass to do so.
When readers of the Brochure are examining the itineraries for each cruise, there is a note in the top part of the page where the map is contained in these words "Please refer to terms and conditions", and also a note that the map is provided as a guide only. There is no other reference in the Brochure to the terms and conditions which is at all obvious. Other references do occur, but they are in very small type and hard to read. In particular, these occur at the bottom of the pages describing each individual cruise itinerary where the following words appear: "Disruptions to cruising and itinerary arrangements may occur. For full terms and conditions please refer to pages 218 and 219."
It is not at all unfair to note that the Terms and Conditions either when referred to, or else when their actual content is printed, are not emphasised in any way throughout this Brochure. References to them are in small type and they are not prominently placed. The two pages describing the Terms and Conditions appear at the back of the Brochure. They are very hard to read, not only because of the size of the font and because of the page layout of three vertical columns, but also because of the complexity of the wording used, particularly in contrast with the plain, effusive language in which the luxury river cruising benefits are described in the Brochure.

[21]

Services

It is of central relevance to these proceedings to first establish what the services were that were provided by Scenic to the plaintiff and group members.
The plaintiff submitted that in the circumstances here, Scenic was 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.
Scenic submitted that the services which it was contracted to provide comprised "a tour at a particular time which included a river cruise to the extent that river conditions allowed it; to provide reasonable endeavours to provide the tour booked in accordance with the itinerary and to use reasonable efforts to substitute, where required, a motorcoach for a vessel, for example".
There is little point in analysing the legal causes of action alleged by the plaintiff unless and until one resolves the issue of what services were supplied and, therefore, what were the services upon which the consumer guarantees fastened.
It is convenient, in considering the question of what the services were, to commence with some authorities about the term and its definition.
The term "services" and the meaning attributed to it in s 2 of the ACL, is not an exhaustive definition. Rather, the statutory definition includes services that would not fall within the ordinary meaning of that term e.g. rights relating to real property. In interpreting the term "services", unless a contrary intention appears in the substantive provisions, ss 60, 61 and 62 of the ACL, the ordinary meaning of "services" is to be adopted along with the specified services in the definition itself: Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; (2014) 226 FCR 471 at [52]-[53].
In considering the word "services", as Wilcox J observed in Adamson v NSW Rugby League Ltd (1991) 31 FCR 242 at 262: "As a reference to any standard dictionary will show, although the word 'services' has a wide application, it imports always the notion of some assistance or accommodation being made available by one person to another."
This passage was approved by the Full Court of the Federal Court in Obeid at [54].
In CPA Australia Ltd v Storai [2015] VSC 442; (2015) 299 FLR 288, Bell J said, having reviewed a series of decision of various courts dealing with the word "services" in various legislation this, at 295 [20]: "True, IW was an anti-discrimination case in which (among other things) government-provided services were included in the definition of 'services'. But the emphasis in all of the judgments upon the wide ordinary and natural meaning of the word 'services' and the emphasis in the majority judgments upon whether a benefit was supplied to the recipient (however else the relevant activity may also be characterised) is equally applicable to the meaning of the word in s 21(1) of the Australian Consumer Law. It is also true that in Obeid, the statutory mining approval found to constitute a commercial benefit was different to the operation of a complaints and discipline system. But the conclusion reached in Obeid was the product of the kind of benefit-focussed characterisation that must be undertaken in this case. IW and also Obeid show that it is not that the provider is government or private, or that the legal framework is public or civil, that is critical, but rather whether some assistance or accommodation is provided to the recipient upon a proper characterising thereof."

[22]

The Purpose Guarantee: s 61(1) of the ACL

There was no direct dealing between Mr Moore, and any employee of Scenic at the time the booking was made, or prior to the commencement of the cruise. The evidence did not support a finding that Mr Moore made known, expressly to Scenic, any particular purpose for which he acquired the Services. However, in the factual context of what occurred, that is hardly surprising. Scenic is in the business of providing river cruises and tours in Europe and elsewhere in the northern hemisphere. Some of the provided cruises travel on the Mediterranean Sea and also the Baltic Sea. Scenic holds itself out as a specialist in the field of the provisions of travel and recreational services, in particular, cruises. Each year, well in advance of when particular cruises are intended to embark, having made the arrangements for and designed or else fixed particular itineraries, Scenic publishes a large brochure advertising the cruises which it offers. As is apparent, the brochure also concentrates not just on the particular cruise itinerary, but on the provision of a luxury all inclusive experience enhanced by features available for passengers on Scenic's "Space Ships".
The brochure is distributed to travel agents such as Harvey World Travel at Warners Bay, where Mr Moore obtained it, RACQ Travel in Bundaberg in the case of Mr Childs, Wherever Travel in Sydney in the case of Mr Cairncross, Flight Centre at Pinewood Shopping Centre in Victoria in the case of Mr Holgye and Jayes Travel in Newcastle in the case of Mr Peattie.
As well, it advertises its cruises on television and in other forms of the media. It also directly mails promotional material to individuals who have been passengers on cruises in the past, or else who are members of one or other of the Scenic reward programs. No doubt it undertakes other promotional activities.
By these activities Scenic was inviting intended travellers to make bookings on one or more cruises of their choice. That is, Scenic was enticing passengers to book for an all-inclusive five-star luxury cruise. As Scenic itself put it, in one of its many letters to guests explaining disruptions: "… We are making arrangements to ensure the best possible European river cruising experience for you, and we are certain you will enjoy the 5-star all‑inclusive experience our Spaceships (sic) … … Our Cruise Director will advise all final arrangements and river conditions as you relax and enjoy their ultimate European cruising experience."

[23]

The Result Guarantee: s 61(2) of the ACL

In its application to these proceedings, the result guarantee contained within s 61(2) of the ACL requires the plaintiff to establish that Scenic supplied the Services to him as a consumer and that he had made known to Scenic, either expressly or impliedly, the result which he wished the Services to achieve.
If a supply then occurred, s 61(2) of the ACL imposes a guarantee that the Services supplied by Scenic will be of such a nature and quality that they might reasonably be expected to achieve that result.
The Services being supplied by Scenic were intended by it to provide the luxury all-inclusive experience which it promised to passengers who were the consumers of the Services. Amongst other things, as Mr Moroney's letter of welcome at the start of the Brochure made clear, Scenic was keen to welcome back people who had travelled previously with it, who had the benefit "… of the wonderful travel experience [Scenic] have shared with so many guests". He also encouraged first time travellers to consider booking again with Scenic.
The Brochure informed intending passengers of the experience which Scenic said that they would have and enjoy: • "… you will experience a standard of luxury and service that you would expect in a five-star hotel"; • "… you will enjoy a level of inclusive luxury and service that is unsurpassed on the waterways of Europe"; • "… you will experience Europe in all its glory as you relax with refreshment in hand on your private outdoor balcony"; and • "At Scenic tours we make every effort to ensure that your European river cruise is a unique and special experience that you will always remember."
Whilst Mr Moore certainly articulated, in correspondence written after he returned to Australia, the result which he had hoped for when he booked his cruise there is no evidence that he had expressly made known to Scenic the result which he wished the services to achieve.
However, I am well satisfied, as with the implication of the "Particular purpose" to which I have earlier referred, that Mr Moore, by receiving the assurances and enticements of Scenic in its Brochure, selecting a particular identified cruise, and then paying for the cruise, was impliedly making known to Scenic the result which he wished the Services to achieve.
It seems to me to be a matter, largely, of common sense that passengers who booked on the cruises which Scenic promoted and would provide, were impliedly communicating that they expected the result from the Services which Scenic assured them they would get.

[24]

Due Care and Skill Guarantee: s 60 of the ACL

This provision requires that the supplier of services to a consumer guarantees that the services will be rendered with due care and skill. The ultimate effect of this guarantee is that it precludes, in a consumer agreement, the capacity of the supplier of services to contract out of negligent conduct with respect to the supply of services.
The use of the phrase "due care and skill" is a direct reference to the common law standard of negligence.
The section assumes that the supplier owes to the consumer a duty to use due care and skill in the supply of services. Compliance with that duty is guaranteed and, accordingly, if the supplier acts without due care and skill, and a consumer suffers loss or damage, then compensation may be awarded.
This guarantee replaces the implied term under s 74(1) of the Trade Practices Act 1971.
The plaintiff's case with respect to the due care and skill guarantee, is that had Scenic conducted its operations by which the Services were provided with due care and skill, and having regard to the facts of which it was aware, or ought reasonably been aware, it would have concluded that for all of the subject cruises, except Cruises 2 and 3, there was a real and substantial risk or prospect which existed prior to the commencement of the cruises, that the cruises would be substantially disrupted and that the cruise itinerary would not be supplied in accordance with the promised Services.
The plaintiff submitted that having regard to such a conclusion, to proceed with the supply of the Services as Scenic did, without either: 1. unilaterally cancelling Cruises 1 and 6 to 11 inclusive; 2. giving to the passengers the option prior to embarkation of voluntary cancellation for all cruises other than Cruises 2 and 3; and 3. for Cruises 2 to 5 inclusive, the option of cancellation and a partial refund or rescheduling, meant that the Services were provided without due care and skill.
The plaintiff submitted that a review of Scenic's attitude as can be ascertained from written emails and other internal communications, demonstrated that differently from other cruise companies providing similar cruises on the same rivers, and contrary to prudent practice, Scenic determined to go ahead and provide the Services knowing that there would be significant disruptions, without providing any accurate information or indication to the passengers of any sense of the extent of that substantial disruption.

[25]

Defences to the Guarantees

Scenic raised two matters by way of defence to the consumer guarantee claims. The first is the provisions of s 61(3) of the ACL which provides that s 61 does not apply: "… if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier."
The onus of demonstrating that any particular claim falls within s 61(3) falls onto the defendant. It must be established that a consumer did not rely on its skill or judgment. Mr Moore's evidence was to the effect that he relied entirely on Scenic's skill and judgment in the provision to him (and his wife) of the Services. Having regard to the background of Mr Moore and Ms Howell, the circumstances of their booking and the type and nature of the Services being provided, I am satisfied that he did rely (as did his wife) on the skill and judgment of Scenic.
Scenic did not make any submission which challenged this conclusion. It did not submit that it was unreasonable for Mr Moore (and his wife) to rely on its skill and judgment.
Accordingly, I am satisfied that this defence is not made out in respect of the claim by Mr Moore (and his wife).
Scenic did however submit that the Court should not make a similar finding with respect to any other group members including those who had given evidence, because the Court was not determining their claims. Notwithstanding the fact that evidence was given by some group members, it would be inappropriate to reach a concluded view on this aspect with respect to these claims.
However, it is appropriate to remark that given the nature of the Services being supplied by Scenic, its corporate structure and the extensive resources both human and ship-borne, it would be most surprising to find a group member who, like Mr Moore, was a person looking to enjoy the experience of a cruise, who would have such a level of skill and judgment that, assuming the group member was not reckless, would enable him or her not to rely on the skill and judgment of Scenic. As it seems to me, at present, it would be surprising if Scenic was able to point to any unreasonableness in the conduct of a group member in relying on Scenic's skill and judgment. However, any decision on such matters (other than for Mr Moore and his wife) must await further evidence.

[26]

Application of Purpose and Due Care and Skill Guarantees to the Cruises

[27]

Cruise 1: South of France River Cruise commencing 19 May 2013

[28]

The Cruise

The South of France River cruise was a 14 day cruise which 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.
Some guests, prior to arriving in Paris, received advice from Scenic that there would be a change to the itinerary. That advice included the following: "We have now been advised that we are unable to dock in Arles at the end of your cruise. We will be sailing as far south as Tarascon on your itinerary … which is only 17kms from Arles. Your final docking for disembarkation will be in Avignon."
An itinerary was provided which included some amendments to reflect what is set out above, and also some changes to the order of the touring itinerary.
On 20 May 2013, passengers boarded the Scenic Emerald in Chalon-sur-Saône. Upon arrival on board the ship, the Cruise Director informed passengers that the ship would not cruise to Tournus the following day as the dock at Tournus was "under water". Instead, they were told that the ship would cruise directly to Macon on 22 May 2013. Passengers embarked whilst the ship was "… docked in ugly industrial harbour" which apparently gave "… not the best first impression" according to the Cruise Director's diary.
On 21 May 2013, the ship remained docked in Chalon-sur-Saône but at a different berth in the city centre. Passengers travelled by coach to Beaune and undertook sightseeing around Chalon-sur-Saône.
On the morning of 22 May 2013, the ship cruised about 50km from Chalon-sur-Saône to Macon while passengers participated in various coach tours around Chalon-sur-Saône. Passengers were not permitted to remain on the ship during this cruising component. The ship arrived in Macon at about 1pm. In the afternoon, passengers travelled by coach for approximately two hours from Chateau de Cormatin to Macon, where they boarded the ship.

[29]

Purpose Guarantee

Passengers on this cruise only had one day cruising between Viviers and Avignon, a distance of about 80km. On no other occasion were the passengers on board the ship whilst it cruised anywhere. In addition to travelling by coach on each day of the tour (including the morning when the ship did finally cruise), the passengers changed ship and stayed for three nights in hotels. Instead of unpacking upon arrival on a ship and then not having to repack their bags until the end of the tour, the passengers actually had to attend to this tedious process on four occasions. Simply put, this was a bus tour around southern France with accommodation on two different ships and at two different hotels with only one afternoon of cruising during which the passengers had the opportunity of relaxing on board the Scenic provided ship, watching the countryside drift past.
The services provided were wholly unfit for the Particular Purpose. Scenic was in breach of this consumer guarantee with respect to this cruise.

[30]

Due Care and Skill Guarantee

It is clear that the waters on the Saône and Rhone Rivers had been very high for most of the month of May 2013. Cruises had been significantly disrupted. The rivers were closed to navigation with passengers from time to time. The cause of this was a rapid melting of snow build-up during the last European winter. A number of UK passengers had chosen not to fly to France to take up these cruises, and had cancelled. At least as late as 11 May 2013, cruising with passengers on board was simply not possible.
The French rivers cruise was due to start on 19 May 2013. The passengers were due to board the Scenic Emerald on 20 May 2013 and disembark on 1 June 2013.
On 16 May 2013, namely, three days before the start of the cruise and four days before guests were due to embark, it was clear to Ms Scoular that the water levels on the rivers remained high. At that stage, the cruise which was sailing north could not establish a final disembarkation point because it was not clear where it could navigate to, or where it could dock.
On any view, at this point in time, and having regard to the history of what had preceded during the earlier weeks in the month, any responsible provider of travel services would have realised that there was a significant likelihood that the cruise due to commence when passengers embarked on 20 May 2013, would not be able to proceed smoothly and without interruption. Particularly is this so because Scenic had no information at that time which enabled it to conclude that there was likely to be a drop in the height of either river sufficient to permit navigation.
It was incumbent in my view for a supplier of services, such as Scenic, acting reasonably and in the application of due care and skill, to have taken reasonable steps to inform its passengers of the state of affairs. There is no evidence that Scenic took any steps to inform the passengers who were booked on that cruise, that this was so. In fact, the letter provided by Scenic, concealed rather than revealed these facts.
My conclusion with respect to the reasonable expected knowledge of Scenic prior to the commencement of this cruise is strengthened by the fact that as soon as the passengers boarded the ship, they were informed that the ship could not cruise as planned because the dock was underwater.

[31]

Cruise 2: Budapest to Amsterdam departing 20 May 2013

[32]

The Cruise

This cruise was to proceed along the route from Budapest to Amsterdam, passing through Vienna, Durnstein, 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 May 2013 to 28 May 2013, the cruise proceeded as scheduled. However, on 26 May 2013, the Cruise Director recorded that "high water is threatening program. River Main is now closed". On 27 May 2013, the Cruise Director recorded that the "cruise is being weather affected".
On 28 May 2013, the Cruise Director recorded that the ship was to have an "enforced stay" in Bamberg. On 29 May 2013, instead of cruising to Würzberg, the ship remained docked in Bamberg and passengers travelled by coach to Würzburg and Rothenburg. On 30 May 2013, the Cruise Director recorded that the ship was "immobilised by high water at Bamberg". Passengers either remained on the ship for the day or participated in a village event.
There was no specific evidence about the features of the dock in Bamberg during this cruise. But as is apparent from evidence about the later cruises, the Scenic Jewel was docked in an unattractive industrial harbour which had a foul smell. It was also docked between other ships, so that it had no outlook from cabin verandas. Equally, guests had little privacy in their cabins.
On 31 May 2013, passengers disembarked the Scenic Jewel in Bamberg and travelled for four hours by coach to Rudesheim, where they boarded another ship, the Scenic Ruby. Mr Doyle, the Cruise Director, recorded that the coach trip was "long" and "not helped" by the fact that the coaches stopped at the same resting points, causing delays for passengers needing to use toilet facilities. After boarding the Scenic Ruby, passengers cruised to Cologne. The coach trip covered the length of the Main River, and a section of the Rhine River.
On 1 June 2013, the ship cruised to Dusseldorf and then to Amsterdam as scheduled, with the Cruise Director recording that the cruise was "back to normal". On 2 June 2013, passengers undertook sightseeing around Amsterdam. On 3 June 2013, passengers disembarked the Scenic Ruby in Amsterdam and the tour concluded.
Overall, 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.

[33]

Purpose Guarantee

In this cruise, the disruption from cruising which, in all, included four days, occupied about one third of the days set aside for cruising on the itinerary and, I am satisfied that this constituted a significant disruption for the passengers on this tour of their cruise experience. This disruption was not a passing one. It did not last only a few hours, nor could it be described as a temporary interruption. On the contrary, for a cruise itinerary which was intended to provide a continuous cruising experience (except for spending two nights in Vienna) this was a most significant disruption to that cruising experience.
I am satisfied that a cruise, disrupted to this extent, and substituted by four days of motor coach tours including at least one which was described as "long" did not provide services which were reasonably fit for the Particular Purpose.
It would not have been a pleasant experience, nor particularly relaxing, nor would it have been interesting to be presented with a choice of travelling on coaches for many hours to visit places described on an itinerary or else to remain staring, essentially, at concrete walls or other ships whilst docked in an industrial area which was not close anywhere attractive.
I am satisfied that the services provided to the passengers on this cruise were not reasonably fit for the Particular Purpose, and that a breach of the purpose guarantee has been proved.

[34]

Due Care and Skill Guarantee

Cruise 2 is not the subject of any claim for a breach of the due care and skill guarantee in s 60 of the ACL.

[35]

Cruise 3: Amsterdam to Budapest departing 25 May 2013

[36]

The Cruise

This cruise was to proceed along a route from Amsterdam to Budapest, passing through Cologne, Marksburg, Rudesheim, Miltenberg, Würzburg, Bamberg, Nuremberg, Regensburg, Passau, Linz, Melk, Durnstein and Vienna (the Amsterdam to Budapest Route). The Cruise was scheduled to commence on 25 May 2013 on the Amadeus Silver.
From 25 May 2013 to 28 May 2013, the cruise proceeded as scheduled.
However, on 28 May 2013, the Cruise Director recorded that ships would soon be unable to pass under a bridge near Frankfurt due to high water levels. On that day, in the afternoon, the ship cruised through the Rhine Gorge to Rudesheim. From there the passengers travelled by coach to Mainz, re-joined the ship and cruised to Miltenberg.
On 29 May 2013, the ship was due to cruise from Miltenberg to Wertheim, which is a distance of about 40km along the river. That passage took six hours to complete (according to the Cruise Director's diary) with the result that many guests, who had chosen to transfer from Miltenberg by coach to undertake a walking tour in Wertheim, were left waiting for the ship to arrive. The weather was rainy and cold. The temperature was about 14°.
When the ship docked, it was coupled with a cruise ship being operated by APT. This docking arrangement meant that disabled guests could not leave the Scenic ship because disabled access was not available through the APT ship.
On 29 May 2013, the Cruise Director recorded that by 8pm Würzburg had "closed due to high water". Instead of sailing to Würzburg, the ship docked at Neustadt, which was not far from Wertheim and which was about a five hour cruise from Würzburg.
On 30 May 2013, the ship remained docked in Neustadt. The ship attempted to cruise to Würzburg later in the evening. However, the ship could not pass under the last bridge before Würzburg. On 31 May 2013, the Cruise Director recorded that the ship was "stuck just before Wurzenburg" (sic) and that the "forecast does not look good at all". He recorded that the Main River was closed and one section of the Danube River was also closed. He correctly predicted that the river and weather conditions could influence the next trip as well.
There was to be no cruising for the rest of the tour.
On 1 June 2013, passengers travelled for approximately four hours by coach to Nuremberg from Neustadt and about the same time for the return trip. The Cruise Director recorded that it was "raining all the time, very grim". The coach tour to Nuremberg occupied the whole day.

[37]

Purpose Guarantee

This cruise, not without difficulty, proceeded until it reached Wurzburg, i.e. it proceeded about 500km along the Rhine River, and about 240km along the Main River. That cruising took about four days. The passengers on this cruise did not travel again along the rivers of the Europe. They did not cruise on the balance of the Main River, the Main/Danube Canal or the Danube River i.e. they did not cruise for about 1,000km of the planned itinerary.
When docked in Wertheim, disabled or mobility restricted passengers could not leave the ship. That is because there was no disabled access through an adjoining ship to which the cruise ship was moored.
After Neustadt, where the ship remained, the balance of the trip was conducted on coaches. As the review of this cruise above demonstrates, the services provided to the passengers were badly organised, significantly disrupted and guests who did not have the capacity for walking and travelling on coaches, were obliged so to do. When the passengers were transferred to be accommodated on the Scenic Rhapsody, which was docked in Vienna, there were insufficient seats in the dining room to cater for the number of passengers. The hotel in which the passengers were accommodated in Budapest, was inadequate in all respects. The Cruise Director described it as the worst hotel he had ever been in. The passengers were accommodated there for two nights.
In all, the passengers were accommodated on two ships, in a number of different hotels and were transported on coaches for over half of the trip. Instead of having 10 days during which the passengers could experience the promised cruising, they only experienced two days.
The services provided to the passengers on this trip were not reasonably fit for the Particular Purpose. A clear breach of the purpose guarantee has been established for this cruise.

[38]

Due Care and Skill Guarantee

Cruise 3 is not the subject of any claim for a breach of the due care and skill guarantee in s 60 of the ACL.

[39]

Cruise 4: Amsterdam to Budapest departing 27 May 2013

[40]

The Cruise

This cruise was to proceed along the Amsterdam to Budapest route. The cruise was scheduled to commence on 27 May 2013 upon the Scenic Ruby.
From 27 May 2013 to 29 May 2013, the cruise proceeded as scheduled. However, Frank Holgye, a passenger who gave evidence about this cruise, recalled that as the ship was cruising on its first planned day of cruising from Amsterdam to Dusseldorf on 28 May 2013, he observed a number of large, mature trees submerged in the water. According to Mr Holgye, the Cruise Director announced that evening that there were "problems with the rising river levels" and consequently some revisions needed to be made to the itinerary.
On 29 May 2013, the ship cruised from Dusseldorf to Cologne as scheduled. However, on 30 May 2013, instead of cruising to Rudesheim and then Miltenberg, the ship was forced to dock in Mainz. That evening, the Cruise Director announced that some of the rivers had been closed due to rising water levels and that passengers would have to disembark the Scenic Ruby and travel to Bamberg by coach to board another ship, the Scenic Jewel.
On the morning 31 May 2013, passengers disembarked the Scenic Ruby and boarded coaches to take them to Bamberg. Mr Holgye recalled that passengers had to walk approximately 1km up a hill to board the coaches. The Cruise Director's notes recorded that the passengers "… had to walk through pouring rain and heavy wind upon the departure 500m to the coaches". Passengers then travelled by coach from Mainz to Miltenberg and Marktheidenfeld village, where they undertook sightseeing, before arriving in Bamberg at approximately 6pm. Mr Holgye, who was on crutches, recalled that he was "extremely tired" from the lengthy coach trip. He recalled that passengers spent many hours on coaches that day. Andrew Cairncross, another group member, recalled that conditions in Bamberg were "extremely unpleasant" and that there was a "foul smell" at the industrial port where the Scenic Jewel was docked. The Scenic Jewel remained docked in that port with the passengers on board for a total of four nights.
On 1 June 2013, the ship remained docked in Bamberg. Passengers travelled by coach to Würzburg and Rothenburg.
On 2 June 2013, the ship remained docked in Bamberg. Passengers undertook a city tour of Bamberg. Mr Cairncross recorded in his travel diary that "we are stranded, have been for two days".

[41]

Purpose Guarantee

This cruise struck trouble early on. On 30 May 2013, which was the third possible day of cruising, the ship was unable to continue past Mainz, a town essentially near the junction of the Rhine River and the Main River. From that day onwards, the passengers travelled by coach for the whole of the distance between Mainz and Budapest. They were accommodated on the Scenic Jewel in Bamberg in a dock described by the passengers as extremely unpleasant, having the foul smell of an industrial port. They were then accommodated on another ship in Krems in an abandoned industrial area for five nights, and then they were transferred by coach to a hotel in Budapest.
The passengers on this cruise had only three days of cruising, one of which was incomplete, and from the fourth day onwards all touring was done by coach. They stayed on three separate ships and at a hotel. They missed out on about 1,200km of the 1790km waterway route.
The passengers on this cruise were not provided with an all-inclusive five-star luxury cruise on their intended itinerary from Amsterdam to Budapest. They cruised only to Mainz and thereafter were provided with a bus tour to Budapest whilst accommodated on stationery ships. This was a far cry from receiving the Services which Scenic promised. I am satisfied that the services provided by Scenic were not reasonably fit for their Particular Purpose. A breach of the purpose guarantee has been established.

[42]

Due Care and Skill Guarantee

As just noted above, Cruise 4 was the one upon which Mr Holgye and Mr Cairncross travelled, and about which they gave evidence.
The plaintiff submitted that if Scenic had been acting with due care and skill, it would have provided to passengers on Cruise 4, by 25 May 2013, an option to cancel the cruise and not proceed with it. That is, cancellation should have been offered two days before the passengers were due to embark on this cruise.
Cruises 2 and 3 which were at that time on the rivers between Budapest and Amsterdam proceeded as scheduled on 25 May 2013. Neither had encountered any difficulties on that day although, no doubt, some could have been anticipated.
Mr Holgye observed signs of what he thought was a high water level and had a conversation with a crewmember on board the ship which referred to rising water levels. However, without more, this material was not sufficient to suggest that a decision to proceed with the commencement of Cruise 4 and the provision of services supporting that decision occurred without due care and skill.
On 28 May 2013, the Scenic Jewel reached Bamberg and could not proceed further towards Amsterdam i.e. towards where Cruise 4 was about to commence sailing.
Unsurprisingly, Cruise 4 was significantly interrupted on 30 May 2013, when the ship was forced to dock in Mainz due to rising water levels. At that time, the rain was particularly heavy and there was significant bad weather in Mainz. Bad weather in Bamberg was also recorded on 27, 29 and 31 May 2013. On 30 May 2013, there was heavy rain all day in Budapest, which continued on 1 June 2013 to some extent and substantially on 2 June 2013 in the areas between Budapest and up to and including Vienna.
No doubt weather forecasts, which were easily accessible to Scenic, would have provided an indication of the weather over the next seven or 14 days. There is no evidence as to what those forecasts were, and there is no evidence as to what enquiries, if any, Scenic made about the likely weather along the rivers over the period from 28 May 2013, when the Scenic Jewell became stuck in Bamberg.
Providing the Services with due care and skill would, in my view, as a minimum have obliged the relevant operations staff at Scenic to have informed themselves as to what the weather forecast was and as to the predicted weather. As well, providing these Services with due care and skill would have required the operations staff of Scenic to inform themselves of the existing river heights, and the predicted heights of the rivers throughout the time of the cruise. In particular, the context in which that information should have been obtained, in the exercise of due care and skill, would include the maximum river heights at which the cruises could safely operate. These river heights would need to be ascertained at the relevant locations where the height clearance for ships passing under bridges was a critical, safe navigation issue.

[43]

Cruise 5: Budapest to Amsterdam departing 27 May 2013

[44]

The Cruise

This cruise was to proceed along the Budapest to Amsterdam route. The cruise was scheduled to commence on 27 May 2013 upon the Scenic Sapphire.
From 27 May 2013 to 30 May 2013, the cruise proceeded as scheduled. However, on 31 May 2013, when the ship was in Melk, the Cruise Director recorded that the "ship cannot sail onwards" because of high water levels on the Danube River and the closure of the lock in Melk. The Cruise Director noted that it was "… questionable on when the ship will sail again!".
The opinion of the Cruise Director was prescient. Although he may not have known it, Scenic certainly knew that by 31 May 2013, the waterways to the west of Melk towards Amsterdam were not then navigable. Ships were stuck in Mainz and Bamberg. The Main River was closed. The Rhine River had high water levels with more rain both occurring and predicted. The situation was such that it was highly likely that the Services were going to be significantly disrupted.
On 1 June 2013, the ship remained docked in Melk and was unable to cruise to Passau as scheduled. Passengers participated in tours to Salzburg and Český Krumlov by coach. At 7:10 pm, the ship commenced cruising to Krems, a distance of about 40kms where it docked for the evening. Both coach tours involved a drive of about three hours in each direction.
On 2 June 2013, the ship remained docked in Krems and the Cruise Director recorded that the "ship cannot sail due to high waters". Passengers in cabins on one side of the ship only had a view of the "wall in the industrial harbour". Passengers travelled to Regensburg, Passau and Linz by coach. The Cruise Director recorded that these locations were far away and that the drive to Regensburg was "very long". There was heavy rain and traffic which contributed to the circumstances.
On 3 June 2013, the ship remained docked in Krems. Passengers travelled by coach either to Vienna or into Krems. That day, the Cruise Director informed passengers that they would disembark the Scenic Sapphire the next morning and travel to Bamberg to board another ship, the Scenic Jewel.
On the morning of 4 June 2013, passengers disembarked the Scenic Sapphire and travelled by coach to Nuremberg and then to Bamberg, where they boarded the Scenic Jewel. Passengers were required to board the coaches by 7.30am. The coaches did not arrive in Nuremberg until 2pm - a total of about 6½ hours of travelling. After lunch and a short time to explore Nuremberg, passengers returned to the coach for a tour of Nuremberg, after which they travelled for another hour on coaches to reach the Scenic Jewel at Bamberg. The Cruise Director recorded that passengers had commented that it had been "… a very long day".

[45]

Purpose Guarantee

This cruise proceeded as far as Melk, which it reached on the fourth day of the cruising component. There it remained, except for a short trip, without passengers, to Krems. The passengers disembarked the Scenic Sapphire in Krems and travelled by coach to Bamberg to the Scenic Jewel which was moored there.
After a number of nights moored in Bamberg, the passengers disembarked the Scenic Jewel and were transported by coach to Mainz where they boarded the Scenic Diamond.
On eight days of this itinerary that were described as cruising days, there was no cruising at all. All touring on those days was carried out by coach. The passengers were obliged to change ships on two occasions during the cruise, with lengthy coach trips undertaken to effect the changes of ship.
The number of days during which this cruise was interrupted was in, in my view, very substantial.
Having regard to the description of this cruise earlier set out, and the matters to which I have just referred, I am satisfied that the services provided by Scenic to the passengers on this cruise were not reasonably fit for the Particular Purpose.
I am satisfied that the plaintiff has established a breach of the purpose guarantee.

[46]

Due Care and Skill Guarantee

The plaintiff submitted that if Scenic had been acting with due care and skill, it would have provided to passengers on Cruise 5, by 26 May 2013, an option to cancel the cruise and not proceed with it. That is, the day before the cruise was due to depart.
The ship arrived in Melk on 31 May 2013 and could not sail onwards because of high water levels on the Danube River and the closure of the lock in Melk. It did not move again except for a short distance cruise without passengers to Krems where it docked and where it remained.
The effects of weather and high water levels with respect to this cruise were the same as those with respect to Cruise 4. After all, the cruises were being conducted at the same time, simply in opposite directions. Scenic's knowledge, or knowledge which, acting reasonably, it would be expected to acquire, was the same as for Cruise 4.
The one difference was that a successful passage at the western end of the Rhine River was always likely to be a more feasible option than the passage in an easterly direction between Krems and Budapest.
By the time the ship was docked in Melk and likely to move the following day only to Krems on 30 May 2013, it was apparent that the other ships on the river at that time were also docked and unlikely to move in Bamberg and Mainz. If the Services had been provided to passengers on this cruise with due care and skill, by 30 May 2013 the passengers would have been informed of the fact that cruising on the river was unlikely between Krems and Mainz, that what was intended to be undertaken was a motor coach tour with intermediate accommodation being provided on the stationary ships, docked as they were, and subject to improvement in the weather, with the prospect that another ship would be able to sail west from Mainz to complete the cruise to Amsterdam.
The provision of the Services with due care and skill required that information to be provided to the passengers with a reasonable indication of what was entailed in the motor coach trips, by way of length, and any reasonably available alternative options for the passengers such as a shorter tour or remaining on board the ship.
Upon the basis of that information, passengers could then make a decision as to whether they wished to remain on the tour or cancel it.

[47]

Cruise 6: Amsterdam to Budapest departing 29 May 2013

[48]

The Cruise

This cruise was to proceed along the Amsterdam to Budapest route. The cruise was scheduled to commence on 29 May 2013 upon the Scenic Diamond.
On the evening of 30 May 2013, before the ship sailed from Amsterdam, the passengers were given an update by the Cruise Director "…regarding [the] high water situation".
From 29 May 2013 to 31 May 2013, the cruise proceeded as scheduled. However, on 1 June 2013, the Cruise Director recorded that the Main River was closed due to "high water" and consequently the ship was forced to dock in Mainz. At Mainz, he recorded that there was "extreme high water". This accorded with the knowledge of Mr Sandmeier at that time.
From 2 June 2013 to 5 June 2013, the ship remained docked in Mainz. During this time, passengers travelled by coach to Miltenberg, Rothenburg, Würzburg, Frankfurt and Heidelberg. Passengers were obliged on 6 June 2013 to disembark from the Scenic Diamond and to travel by coach to Vienna and there board the Scenic Pearl.
At approximately 8am on 6 June 2013, passengers travelled from Mainz to Regensburg by coach, where they had lunch and participated in a walking tour, before travelling by coach to Vienna, where they arrived in the early hours of the morning on 7 June 2013. In order to facilitate this particular ship swap, the passengers' luggage, according to the Cruise Director's report, was loaded onto a truck at 7am. Necessarily, passengers would have had to have packed up their luggage and given it to the crew sometime before then so that it could be transferred onto the luggage truck. The first part of the trip from Mainz to Regensburg, a distance of 360km, took 4½ hours. The buses left Regensburg after lunch at 3pm. The trip from Regensburg to Vienna was a distance of about 450km. The trip was long and somewhat unorganised. The four buses arrived in Vienna at the Scenic Pearl between 12.15am and 1.30am. There, passengers boarded their second ship, the Scenic Pearl. The Cruise Director recorded that the passengers were "tired, stressed, exhausted and finally 'happy' to arrive on the ship". The Cruise Director also recorded that the coach drivers were "stressed, tired and not prepared", drove carelessly at times, and had poor communication skills.
The passengers would need to have woken up at about 6am to ensure that their luggage was available to be loaded at 7am. Then, with the exception of lunch and rest breaks, they were on buses for about 16 hours, and had been awake for up to 20 hours before accessing their new cabins. This sort of day falls well short of the Services which Scenic offered to provide.

[49]

Purpose Guarantee

This cruise commenced in Amsterdam on the requisite date and travelled as far as Mainz. After reaching Mainz, on 1 June 2013, no further cruising was undertaking. The passengers completed the itinerary between Mainz and Budapest by coach travel. The coach travel involved many hours and involved passengers staying on two separate ships and in a hotel.
As the descriptions earlier indicate, the lengthy coach travel was not relaxing nor was it an enjoyable experience. A number of the coaches did not fit a description compatible with a luxury 5 start all-inclusive cruising experience.
I am satisfied that the services supplied to passengers on this cruise were not reasonably fit for Particular Purpose. Scenic was in breach of the purpose guarantee.

[50]

Due Care and Skill Guarantee

Cruises 6 and 7 were due to depart Amsterdam and Budapest respectively on 29 May 2013.
By that stage the weather was looking poor, and although the ships had not yet become stuck, it seems to me realistically, that enquiries of the kind which I have earlier explained were necessary would have been likely to demonstrate that there was a prospect that the cruises would not be able to be completed without significant interruption.
The plaintiff submits with respect to these two cruises, that by 28 May 2013, Scenic should either have cancelled the cruises or, alternatively, prior to their embarkation, have informed their intending guests of the prospect of significant interruptions.
On the evidence, there is insufficient material to enable a conclusion to be drawn that a failure to cancel these tours was a decision made without the application of due care and skill.
However, the position is different on 31 May 2013. As is apparent from an earlier accounting of what was known to Scenic by this time, the provision of the Services with due care and skill required Scenic to inform its passengers on these cruises that there was a significant prospect that the cruises would not be able to proceed in accordance with the itinerary, and, in effect, what was in prospect was a motor coach trip through the balance of the planned itinerary, with accommodation being provided on stationary, docked ships. Passengers should have been given that information to enable them to make a decision as to whether or not to cancel their tour.
Such information was not provided in any way which approached a description of the reality of the circumstances. In my view, the services provided from that date onwards for either of these two cruises were not provided with due care and skill.

[51]

Cruise 7: Budapest to Amsterdam departing 29 May 2013

[52]

The Cruise

This cruise was to proceed along the Budapest to Amsterdam route. The cruise was scheduled to commence on 29 May 2013 upon the Scenic Sapphire.
From 29 May 2013 to 1 June 2013, the cruise proceeded as scheduled. That is, the ship remained in Budapest until later on the evening of 30 May 2013, when it commenced to sail towards Vienna. Sailing continued on 31 May 2013 until it arrived in Vienna in the afternoon. On 1 July 2013, the passengers engaged in a series of tours around Vienna. In the evening they were warned by the Cruise Director "… about the coming high water". However, from 2 June 2013 to 5 June 2013, the ship remained docked in Vienna. During this time, passengers travelled by coach to Melk and Krems. Those trips were not without difficulty. It was not possible to go to Durnstein because the road was closed due to flooding. The lower town in Melk was flooded, causing some change in arrangements. There was heavy rain all day. The ship remained docked in Vienna instead of sailing from Durnstein to Aschach.
On 3 June 2013, the ship was intended to sail to Passau where there would be excursions to Salzburg or Český Krumlov. On the evening of 3 June 2013, the ship ought to have sailed overnight to Regensburg. Instead, the ship remained docked in Vienna, and passengers were taken on coach excursions in Vienna and to Baden. These excursions were not on the original itinerary.
On 4 June 2013, the ship was intended to sail overnight to Nuremberg, after passengers had spent the day in Regensburg. Instead, the passengers remained on the ship which was still docked in Vienna. A number of excursions were arranged for, in and around Vienna and a coach was provided to shuttle the passengers into Vienna from the ship and back again.
On 5 June 2013, which was the eighth day of the cruise, that is just over halfway through the cruise, the ship and the passengers had not proceeded past Vienna and its environs. Their itinerary would have had them spending the day in Nuremberg on the various intended excursions, and then to cruise overnight to Bamberg. The passengers spent the day in and around Vienna. No excursions were provided although a shuttle bus was provided to take the passengers in and out of Vienna.
On the morning of 6 June 2013, passengers disembarked the Scenic Sapphire in Vienna and travelled by coach to Regensburg and then to Bamberg, where they boarded the Scenic Jewel. The Cruise Director recorded that because the motorways were closed, it took almost 9 hours to reach Regensburg. The passengers had "lunch" at about 4pm. The coaches left Regensburg at 6.15pm. It then took a further three hours to reach the Scenic Jewel which was docked in Bamberg. The Cruise Director recorded, in somewhat of an understatement, that it had been a "tiring day" for the passengers. Ten passengers declined to transfer from Vienna to Bamberg by coach. They made arrangements at their own expense to travel by train instead. I infer that they did so because they regarded that mode of transport as being preferable to spending a long day on a coach. Dinner was provided to passengers on the Scenic Jewel commencing at 9.15pm.

[53]

Purpose Guarantee

The ship was able to cruise to Vienna from Budapest. By halfway through the cruise, namely 5 June 2013, the ship had still not proceeded past Vienna where it remained docked - having arrived there on the afternoon of 31 May 2013. The passengers had been engaged in travelling from the ship in Vienna to a variety of locations by coach. They had not had the pleasure of any real or sustained cruising experience at that point.
On the morning of the ninth day of the cruise, the passengers were transported by bus for a very long day to the Scenic Jewel, which was docked in Bamberg. The passengers remained on that ship, as it remained docked in Bamberg, for a number of nights and were transported to various places by coach. The passengers were then transported by coach for many hours to Wiesbaden where they boarded the final ship. The passengers had two days' cruising after that.
Passengers experienced only three days of cruising out of the 10 days upon which cruising was to occur. Put differently, there were relatively short periods of cruising at the start and the end of the planned itinerary. The balance was a motor coach tour through flooded parts of Europe.
The coach trips were very long, the days were tiring. They could not be described as being relaxing. On one occasion, the passengers were fed lunch at 4pm. Such was the extent of the coach travel that a number of passengers declined one of the coach tour transfers, between Vienna and Bamberg, and made their own arrangements to travel by train. Because of the length of time travelling on coaches, meals were served late into the evening.
Having regard to what occurred, I am firmly persuaded that the services provided to the passengers on this cruise were not reasonably fit for the Particular Purpose. The purpose guarantee was breached.

[54]

Due Care and Skill Guarantee

For the reasons expressed with respect to Cruise 6, I am satisfied that the due care and skill guarantee was breached by Scenic, by it failing to provide the appropriate information by 31 May 2013. .

[55]

Cruise 8: Amsterdam to Budapest departing 3 June 2013

[56]

The Cruise

This cruise was to proceed along the Amsterdam to Budapest route. The cruise was scheduled to commence on 3 June 2013 upon the Scenic Jewel. The cruise was to last 15 days. This was the cruise that the plaintiff, Mr Moore, and his wife were booked on. I earlier recounted his evidence about his experience. What follows supplements his account and is derived largely from the Cruise Director's report and other documents.
On 1 June 2013, two days before the cruise was to commence, Scenic Tours wrote to passengers informing them that due to "high water levels" they would no longer be embarking upon the Scenic Jewel but upon another ship, the Scenic Ruby. Mr Moore, the plaintiff and passenger on this cruise, recalled that on 3 June 2013, whilst in Amsterdam, the Cruise Director told passengers that "[w]e will only be on the Ruby for a couple of days [then we'll] change to the Jewel".
On 1 June 2013, two of the other passengers on this cruise, Mr and Mrs Brayford, received a letter from Scenic pointing out that the current high water levels on the Main river had prevented navigation with the consequence that they were to be embarked on the Scenic Ruby rather than the Scenic Jewel. It seems that Mr and Mrs Brayford had paid for a cabin upgrade for their cruise on the Scenic Jewel. However, they were being accommodated on a lower deck and in a smaller room. Ms Scoular wrote to them: "We do recognise and understand that this change at this stage is disappointing, and in conjunction with our apologies we will of course refund you the entire cabin upgrade fee of $1695 per person that you have paid for the original cabin; and also the full cost of your airfares and taxes of $2527 per person. Whilst in the State Room we will offer you the enhanced services of complimentary laundry and pressing. If for any reason another suite is available we will ensure to accommodate you into that suite. The above refund reflects the costs for the entire cruise, although as we sail towards Budapest we are making arrangements to transfer all guests back onto the Jewel at a convenient location …"
No upgrades could be offered to any passengers because of the change of ship. The Cruise Director recorded that on the first evening in Amsterdam, the guests "… saw the flooding on BBC World. Thank God for 24 hour news". The Cruise Director's attitude to the downgrading of the cabins was "In any case, the Ruby is a fine ship. The infrastructure of the product is far superior to any other company on the river, and the crew is great. What more can you ask for?" That rhetorical question may well have been answered by Mr and Mrs Brayford by saying they wanted that which they were promised.

[57]

Purpose Guarantee Analysis

It is clear based upon all of the experiences recounted with respect to this Cruise, that the services provided were not fit for the Particular Purpose. Very little cruising in fact took place. The ships were docked in places which were unattractive. Lengthy coach tours were organised and passengers spent a very long time on coaches, some of which were inadequate.
It could not be said that the passengers on this trip received the benefit of the Services which Scenic ought to have provided. The services in fact provided were not reasonably fit for the Particular Purpose.

[58]

Due Care and Skill Guarantee

By 2 June 2013, Mr Brown communicated internally that the situation was not improving and that Scenic may not be able to make land alternatives part of their strategy and that cancellations would be considered.
By 3 June 2013, when the cruise was due to leave, it was apparent that ships were stuck on the river and unlikely to move for many days. It was also apparent to Scenic that a significant component of the cruise would be undertaken as a motor coach tour by land. Other cruise ship companies formed the view that it was appropriate to cancel the cruise departing at that time.
The submission advanced by counsel for Scenic was that Scenic was in a better position than other companies, because of its ability to undertake ship swaps, to enable the cruise to go ahead.
That submission is unpersuasive. First, there is no evidence that that was the fact, although assertions to that effect were made by Scenic in correspondence. Secondly, it is apparent from the Exhibits that Avalon itself was capable of undertaking ship swaps between ships operated by its company which were stuck on the river.
There is simply no reason in the evidence advanced, which was an adequate justification of the decision of Scenic not to cancel this cruise.
Its failure to do so, in my opinion, is a clear demonstration of the provision of the Services without due care and skill. Intending passengers were booked on a luxury river cruise. The river conditions and weather did not enable that cruise to take place as promised. The only responsible action for Scenic, on all of the evidence, exercising due care and skill, was to cancel that tour. There is no explanation offered as to why it did not. To the extent that one can infer from the existing evidence why it did not, the most natural inference to be drawn is that Scenic preferred its own commercial interests.
Scenic's view that it could by providing 50% of the cruise, comply with its contractual obligations was misguided for a number of reasons. First, as I have previously explained, what is in issue here is not compliance with a contractual obligation but delivery of services in accordance with the consumer guarantee provisions of the ACL. Secondly, as I have explained when considering the terms and conditions, the terms and conditions of the contract did not enable Scenic to substitute substantively a coach tour for a river cruise. Thirdly, the concept of 50% being an acceptable standard is not grounded in any evidence as being related to an industry practice or a norm of any kind. Looked at objectively, the provision of 50% of a booked cruise is not at all satisfactory and is rather an acceptance that the Services were not supplied with due care and skill, or such as were necessary to achieve the Particular Purpose or the appropriate result.

[59]

Cruise 9: Budapest to Amsterdam departing 8 June 2013

[60]

The Cruise

There was no evidence that passengers received any notification of any possible interruptions to their cruise before arriving in Budapest. This cruise was to proceed along the Budapest to Amsterdam route. The cruise was scheduled to commence on 8 June 2013 upon the Amadeus Silver. The cruise was to last for 15 days. At that time, the Amadeus Silver was in fact docked in Nuremberg.
On 8 June 2013, the Cruise Director recorded that many passengers were unhappy upon arrival because they were not given the choice whether to fly home or to continue with the tour. Passengers did not board the Amadeus Silver as scheduled but instead stayed at a hotel in Budapest. Arrangements for this hotel reservation must have been made some days earlier.
On 9 June 2013, passengers undertook sightseeing of Budapest and stayed another night at the hotel. Martinus John Willems, a passenger on the cruise, recalled that the "flooding around Budapest was significant" and that the docks were "completely destroyed and/or were … underwater".
At around 8am on 10 June 2013, passengers travelled by coach for approximately nine hours from Budapest to Vienna and then to Bratislava. In Vienna, passengers boarded the Amadeus Brilliant. Mr Willems recalled that the ship was docked in an "industrial area" and that there was a "pungent smell".
On 11 June 2013, the ship remained docked in Vienna instead of cruising to Durnstein. Passengers participated in a walking tour around Vienna or an optional tour to Schönbrunn Palace. Mr Willems noticed "tree logs and flotsam" floating in the canal near the ship.
At around 8 am on 12 June 2013, passengers disembarked the Amadeus Brilliant in Vienna and travelled for 14 hours by coach to Nuremberg via Salzburg, where they boarded the Amadeus Silver at around 10pm. The passengers missed out on their planned visits to Durnstein and Melk. Mr Willems recalled having a sore back after this bus trip. He also recalled that the Cruise Director advised that sailing would commence "by 3pm tomorrow".
On 13 June 2013, despite the remarks of the Cruise Director the previous evening, the ship remained docked in the Nuremberg area. It did not cruise to Regensburg. Mr Willems recalled that the ship was docked approximately 40km from the city of Nuremberg and that there were no shops or attractions nearby. A shuttle bus operated to the city centre but the planned excursions to Passau and Český Krumlov could not take place.

[61]

Purpose Guarantee

The passengers on this ship suffered significant disruption of the planned cruise itinerary. Upon arrival in Budapest, there was no ship for the passengers to embark upon. They stayed at a hotel. They were then transported by coach on the morning of 10 June 2013, when they would otherwise have been cruising, to Vienna.
In Vienna they boarded the ship which was docked in an industrial area, about which there was a pungent smell. They were accommodated for two nights on that ship and then they were transported by coach for about 14 hours to a dock near Nuremberg. They boarded a ship there, which remained docked for the next few days.
The first time upon which any cruising occurred was in the evening of 15 June 2013, which was the eighth day of the 15 day tour.
Thereafter the cruise proceeded as scheduled.
In cruising terms, the passengers on this trip did not get to cruise on the Danube River at all, which is a distance of about 800km. Nor did they cruise for about 100km on the Main/Danube Canal. Cruising occupied about half of the itinerary that it was intended to occupy. As I have previously commented, the passengers on this cruise were significantly disrupted. They were accommodated in a hotel and on two ships. They experienced only four days of cruising. They were subject to long days of motor coach travel and did not have the time to enjoy the extent of the river cruise which they should have.
I am satisfied that the services provided to the passengers on this cruise were not reasonably fit for the Particular Purpose.

[62]

Due Care and Skill Guarantee

When the passengers arrived in Budapest on 8 June 2013 there was no ship for them to embark upon. That would have been clear to Scenic for many days prior to 8 June 2013, as would have been the fact that the situation would not be changing for the better in the near future. The passengers were given little, if any, information about the likely disruption to their cruise.
Upon arrival the passengers were accommodated at a hotel which was 5km out of Budapest. No doubt, this was appropriate having regard to the flooding in and around Budapest. Perhaps it was the only available hotel. The evidence does not permit of any conclusion about this.
The Cruise Director's report which was tendered is an incomplete one. It contains only notes for 8 June 2013 and then from 20 June 2013 onwards. The document refers to other trip reports which have been uploaded, but they were not tendered in evidence.
According to the Cruise Director's report, APT at this time were giving their guests a choice of whether to cancel the tour and return home, or else proceed on the tour. This was apparently known to a number of the guests and reported to the Cruise Director. The Cruise Director also recorded that the unprofessional handling of the issue (late explanation, letter delivery etc., "and the hotel letter was sent without info to deliver") had caused a great deal of upset amongst guests. It was clear also to the Cruise Director that there were likely to be difficulties with sailing along the entire cruise route. She noted that she had asked about a boat trip in the Wachau Valley on a future date "… when Danube is maybe open so that we are on a waiting list …".
On 8 June 2013, the Scenic ships were still stuck at various locations along the waterways. It was clear that Scenic knew that APT had cancelled its sailings which were due to depart on 8 June 2013. It knew that Uniworld and Avalon had cancelled a number of their cruises. It also knew that Viking cruises had cancelled a number of their cruises because of the fact that the Danube River would be closed between Budapest and Nuremburg until at least 16 June 2013. On 6 June 2013, Uniworld had cancelled the remainder of a number of cruises, providing a full refund to guests on board and a future cruise credit. It also cancelled a cruise due to leave Amsterdam on 16 June 2013.

[63]

Cruise 10: Amsterdam to Budapest departing 10 June 2013

[64]

The Cruise

This cruise was to proceed along the Amsterdam to Budapest route. The cruise was scheduled to commence on 10 June 2013 upon the Scenic Pearl.
On 10 June 2013, the cruise commenced upon the Scenic Diamond. The captain spoke to the passengers on the first evening about the "high water situation". The entire cruise proceeded as scheduled except for one day, 21 June 2013, when passengers had to disembark the Scenic Diamond and travel by coach from Durnstein to Vienna to board another ship, the Scenic Pearl. The coach trip took around one hour to complete. The Cruise Director recorded that he emphasised to passengers "how lucky we were to be able to sail as we did".
Whilst the cruise largely proceeded according to the planned itinerary, there were some difficulties associated with the river conditions which necessitated some alterations. On 14 June 2013, because of strong currents on the river, the cruising speed of the ship was reduced and its arrival to collect passengers in Marktheidenfeld was delayed. On 18 June 2013, shipping traffic overnight caused delays, which meant that coach tours started from a different location and involved slightly longer coach trips. Docking was not possible in Passau because of damaged power and water connections, but the ship docked 5km away. A stop in Linz was not possible. None of these difficulties seemed to cause a major disruption. The cruise was completed with passengers travelling on two ships instead of one. But the change of ship only involved a relatively short coach trip. Overall, the cruise took place without any substantial deviation from or interruption to, the planned itinerary.

[65]

Purpose Guarantee Analysis

As the facts recounted above demonstrate, the entire cruise proceeded as scheduled except for one day when passengers had to disembark from one ship and travel by coach for around an hour to board another ship to enable the cruise to be completed.
Although there were other minor interruptions, I am satisfied that this cruise took place without any substantial deviation or interruption, and without any substantial reduction in the Services which were provided by Scenic.
Accordingly, I could not be satisfied on the evidence that the services provided by Scenic on this cruise were not reasonably fit for the relevant purpose. On the contrary, I am satisfied that the services provided were reasonably fit for that purpose.

[66]

Due Care and Skill Guarantee

Cruises 10 and 11 were due to depart from Amsterdam and Budapest respectively on 10 June 2013.
The plaintiff submitted that in the exercise of due care and skill in the provision of its services, Scenic ought to have either cancelled, or else given passengers the option of cancelling this cruise, Cruise 10, by 8 June 2013.
By that time, Scenic was aware that there were significant interruptions to cruising along the rivers. The lock at Hausen on the Main/Danube Canal was closed. It was expected to reopen in a few days, but it was not clear when. Ships could not sail between Nuremburg and Bamberg in either direction. About 700km of the Danube River from Straubing to Budapest was closed. There was heavy damage on the river and to the river infrastructure. No ship could dock in Passau or Lindau, at least for a week. Even the rivers which were open for navigation had limitations. Mr Sandmeier knew on 8 June 2013 that it would be at least a week before Scenic ships could cruise along the Main River.
On 11 June 2013, Ms Scoular was informing Scenic staff and various sales teams that if guests were anxious about any June sailing: "… we can look at assisting them by moving them to a later sailing … If required we will offer guests on these sailings a refund only if unable to commit to offer of later sailing."
No doubt this was seen to be a prudent course to take. Unfortunately for passengers on Cruises 10 and 11, that option was not made known to them as it should have been.
In my view, it was apparent to Scenic that the cruises departing on 10 June 2013 could not be expected to proceed without significant interruption to the planned itinerary. And passengers should have been given the option of cancelling the cruise and returning home.
As it happens, and in the words of the Cruise Director for Cruise 10 which departed Amsterdam on 10 June 2013, and which was concluded without a substantial interruption, it was a matter of luck that this was how the cruise turned out.
Although in my view, passengers embarking on Cruise 10 ought to have been offered the option of cancellation, having regard to what occurred on this cruise, and my conclusions with respect to it, I am not presently satisfied that any passenger on this cruise suffered any loss of a kind which is compensable with respect to a breach of s 60 and the due care and skill guarantee.

[67]

Cruise 11: Budapest to Amsterdam departing 10 June 2013

[68]

The Cruise

This cruise was to proceed along the Budapest to Amsterdam route. The cruise was scheduled to commence on 10 June 2013 upon the Scenic Sapphire.
On 7 June 2013, three days before the cruise was to commence, Scenic Tours wrote to passengers informing them that the ship would not be able to cruise into Budapest as scheduled due to "peak river water levels". Passengers would instead travel by coach from Budapest to Vienna, where they would board the Scenic Sapphire. They would be spending none of the planned time in Budapest.
On 10 June 2013, Robert Peattie, a group member and passenger on this cruise, boarded a bus to Vienna which had been organised by Scenic Tours. He recalled that the bus had little leg room, no bathroom, and was "very jolty" when moving at high speed. He recalled that items were falling from the overhead storage. He recorded a short video which captured these events. This bus trip could not be said to have been relaxing or enjoyable.
At around 4pm to 5pm on 10 June 2013, after approximately eight hours of travel, the bus arrived not in Vienna but in Krems, where Mr Peattie and other passengers boarded the Scenic Sapphire. Mr Peattie recalled that Krems was an "isolated industrial port".
From 10 June 2013 to 13 June 2013, the ship remained docked in Krems. Mr Peattie undertook excursions to Budapest on 11 June 2013 and 12 June 2013, and to Vienna on 13 June 2013.
On 14 June 2013, the ship remained docked in Krems. Mr Peattie recalled that, in the evening, the Cruise Director said that passengers would have to swap to another ship approximately 300 km away and that they would have to take a bus to "go around a damaged lock".
At about 9:30am on 15 June 2013, passengers disembarked the Scenic Sapphire and travelled by coach for approximately 13½ hours to Regensburg, where they boarded the Scenic Jewel. Mr Peattie recalled that upon boarding the Scenic Jewel, he was "physically and mentally tired from exhausting coach trips".
From 16 June 2013 to 24 June 2013, the cruise proceeded as scheduled.
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.

[69]

Purpose Guarantee

At the time the cruise was due to commence, the intended ship could not cruise to Budapest. Passengers who commenced the trip in Budapest were transported by coach to Krems where they boarded the Scenic Sapphire.
Krems is about 60km along the Danube River to the west of Vienna.
The ship remained docked in Krems for five days until 15 June 2013, where passengers disembarked from that ship and travelled by very long coach trip to Regensburg where they boarded the Scenic Jewel.
From Regensburg the cruise proceeded as scheduled to Amsterdam. The passengers on this cruise did not get the benefit of about 760km cruising along the Danube River, from Budapest to Regensburg. As well, their lengthy stay in Krems, which was described as an isolated industrial port, which was some distance from Vienna, did not accord with the itinerary.
As indicated above, five days of this cruise were either lost or partially disrupted. As well, the services that were provided at that time were not ones which would discharge the Particular Purpose. Long motor coach trips of the kind which occurred did not fulfil the purpose of a luxury cruise. Being docked at night for five nights, in an industrial harbour, did not provide the promised extensive views or any evening cruising.
As well, the fact that the passengers commenced the cruise in the middle of the intended itinerary in an exhausted physical and mental state brought about the long coach trips, would have continued their negative experiences.
I have concluded that the services provided with respect to this cruise were not reasonably fit for the Particular Purpose. A breach of the purpose guarantee has been established.

[70]

Due Care and Skill Guarantee

In my view, in the application of due care and skill and the provision of services, I am satisfied that by at least 8 June 2013, passengers on Cruise 11 ought to have been able to cancel their tour had proper information been provided.
This conclusion differs from that with respect to Cruise 10, which was embarking in Amsterdam on the same day. What was known to Scenic with respect to this cruise and before passengers arrived in Budapest, was that there would be no ship in Budapest for embarkation and that passengers would spend little, if any, time in Budapest. Rather, they would be moved to the nearest ship which was docked in Krems, where it had been stuck since earlier in the month.
As earlier explained in [220] and [221] above, Scenic was clearly on notice prior to the departure date of this cruise that there was a real prospect that the cruise would not be able to be completed without interruptions. The water level on the Danube was continuing to be high with no information suggesting that these levels would be diminishing. The Hausen Lock was still inoperative and not expected to be operating for a number of days. This made highly likely the need for a further ship swap between Krems and Regensburg, which is what actually happened. The re-opening dates for parts of the Danube and the Main/Danube Canal were largely unknown.
In those circumstances, the provision of the Services with due care and skill, required either the cancellation of the cruise of else the provision of up-to-date and accurate information about the likely interruption to the cruising with an option being offered to the passengers to cancel their cruise.

[71]

Cruise 12: Amsterdam to Budapest departing 12 June 2013

[72]

The Cruise

This cruise was to proceed along the Amsterdam to Budapest route. The cruise was scheduled to commence on 12 June 2013 upon the Scenic Ruby. There is actually very little evidence about what happened on this cruise.
From 12 June 2013 to 22 June 2013, it appears that the cruise proceeded as scheduled. On 22 June 2013, passengers disembarked the Scenic Ruby and travelled by coach to Vienna, where they stayed in the Hilton Hotel overnight. On 23 June 2013, passengers boarded the Scenic Crystal in Vienna and the cruise proceeded as scheduled.
Overall, this cruise proceeded largely as intended but for the single night's accommodation in a hotel in Vienna.

[73]

Purpose Guarantee

This cruise proceeded largely as intended. The only variation was a single night's accommodation in a hotel in Vienna rather than on a ship in Vienna. As well, the passengers were required to change ships and were transported by coach to Vienna.
I do not regard this interruption, or any evidence about what occurred on this cruise, of which there was very little, as indicating that the services supplied were not reasonably fit for the Particular Purpose. I am satisfied that the services for this cruise accorded with, and achieved, the Particular Purpose. There has been no breach established which is sufficient to enliven the consumer guarantee.

[74]

Due Care and Skill Guarantee

The plaintiff submitted that if Scenic had been acting with due care and skill, it would have provided to passengers on Cruise 12, by 11 June 2013, an option to cancel the cruise and not proceed with it. That is, one day before the cruise was due to depart from Amsterdam.
I am not satisfied that for passengers departing from Amsterdam on Cruise 12, having regard to the conditions as they existed, there was any reason for Scenic to provide to those passengers any information at all about the possibility of significant disruption. Whilst it may have been not unreasonable for Scenic to have done so, I cannot conclude that their failure to do so constituted a breach of due care and skill guarantee.

[75]

Cruise 13: Budapest to Amsterdam departing 12 June 2013

[76]

The Cruise

This cruise was to proceed along the Budapest to Amsterdam route. The cruise was scheduled to commence on 12 June 2013 upon the Scenic Pearl.
On 12 June 2013, passengers did not embark upon the ship as planned but instead stayed overnight at a hotel in Budapest. A group of 42 of the passengers was sent straight to the Scenic Pearl which was docked in Vienna when they arrived at the hotel in Budapest.
On 13 June 2013, the remaining passengers undertook a city tour of Budapest before travelling by coach to Vienna, where they also boarded the Scenic Pearl at about 5.30pm.
On 14 June 2013, passengers disembarked the Scenic Pearl in Vienna and after a city tour of Vienna, travelled by coach to Krems, which is a relatively short distance, where they boarded the Scenic Sapphire. The reason for their transfer was that the Altenworth Lock was closed.
On 15 June 2013, the ship remained docked in Krems adjacent to a dark wall and passengers undertook activities in and around Vienna including a tour to Bratislava.
From 16 June 2013 to 26 June 2013, the cruise proceeded broadly as scheduled.
Overall, 3 days of the intended cruising did not take place which meant that about 350km of cruising along the Danube River did not occur.

[77]

Purpose Guarantee

The first night's accommodation was in a hotel in Budapest rather than on a boat. Some of the passengers were transported straight to one of Scenic's ships, which was docked in Vienna.
After remaining in Vienna in accordance with the itinerary, the passengers were taken by coach to Krems. This is not a lengthy distance and the trip was not a particularly long one. They embarked on a different ship in Krems and from 16 June 2013, the cruise proceeded broadly as scheduled.
The passengers on this cruise did not receive the benefit of cruising from Budapest to Vienna or the 50km or so from Vienna to Krems. There is no evidence that the hotel in Budapest was anything other than suitable, nor that the arrangements made to change ships were not carried out at an appropriate level and in an appropriate manner.
There is no evidence that the services which were provided, other than the diminution in cruise length and the need to change ships, were not reasonably fit for the Particular Purpose.
The fact that three days of cruising did not take place at all, and that some but not all passengers were accommodated for one night in a hotel (which meant an increase in the frequency of packing and unpacking), may point towards the provision of services which were not reasonably fit for purpose. As well, the fact that all passengers were also required to change ships from the Scenic Pearl to the Scenic Sapphire would add weight to a consideration of the provision of services which were not reasonably fit for purpose.
However, there was no evidence from any passenger about this cruise. It is simply unknown whether these interruptions were well or poorly managed by Scenic. There is no evidence of any inconvenience being caused to the passengers, the length of the coach travel between Budapest and Vienna, nor the nature or quality of the services provided. The onus of proof with respect to the purpose guarantee has simply not been discharged.
I am not persuaded that there has been any breach of any consumer guarantee with respect to this cruise.

[78]

Due Care and Skill Guarantee

With respect to Cruise 13 departure from Budapest, much as with Cruise 11, the position was different compared with the Amsterdam departure of the same date. The passengers were told, for example, that a cruise ship would not arrive in Budapest because of the high water and river infrastructure damage.
The plaintiff submitted that if Scenic had been acting with due care and skill, it would have provided to passengers on Cruise 13, by 11 June 2013, an option to cancel the cruise and not proceed with it. That is, one day before the cruise was due to depart.
In my view, the application of due care and skill and the provision of the Services required Scenic by 11 June 2013 to notify the passengers that there was a real risk of significant interruption to the cruise and that cruising was unlikely to take place in its entirety for the whole of the itinerary. It was well‑known that there would be no cruising between Vienna and Budapest. Passengers should have been offered an option of cancellation, but were not. On the contrary, information provided to the passengers did not adequately reflect the likely course of events.
In my view, Scenic was in breach of the due care and skill guarantee with respect to Cruise 13 by failing to provide the requisite information by 11 June 2013, accompanied by an option to cancel the cruise.
It may seem to be a curious result that, with respect to the same cruise, Scenic could be found not to have been in breach of the purpose guarantee, but to have been in breach of the due care and skill guarantee. But consideration of each of these guarantees takes place, in the circumstances here, at different times and in the case of the care and skill guarantee, involves a prospective consideration of what is likely to occur. In the case of the purpose guarantee, the enquiry focuses upon what in fact occurred, and whether that was what was foreseen as being reasonably likely.
So, in this case, a likely disruption was foreseen. That situation required notification to occur as discussed. Passengers ought to have had the choice of whether to go ahead with the cruise or not, having regard to what was in prospect. In that way, the due care and skill guarantee was breached.
However, after the passengers commenced the cruise, the question is to whether the services actually provided were reasonably fit for purpose. On the limited evidence tendered, I have not been persuaded that the purpose guarantee was breached.

[79]

Application of the Result Guarantee to the Cruises

It is convenient to consider the issue of whether the result guarantee has been breached with respect to all cruises together.
There is no evidence that Mr Moore or his wife made known expressly to Scenic or its employees or agents, any result which he or she wished the services to achieve. Any consideration of this consumer guarantee requires the Court to imply the expected result, rather than to proceed on the basis of an express result.
On page 14 of the Brochure the intending passenger is informed: "Scenic Spaceships with their exclusive full size private balcony suites, already offer the ultimate luxury in European river cruising, and from 2013 you are able to relax and watch the beautiful landscapes along the Rhine, Main, Moselle and Danube Rivers pass by at any time of the day, no matter the weather. … Now when you travel with Scenic Tours, you can rest assured that regardless of itinerary or time of year you choose to travel on these waterways, you will enjoy the ultimate river cruise experience." (emphasis added)
The introductory letter from Mr Moroney, the founder and Managing Director of Scenic, to intending passengers included these statements: "It is my pleasure to invite you to join Scenic Tours for a once in a lifetime cruise along the grand waterways of Europe. With Scenic Tours you will enjoy unrivalled access to some of the Continent's most extraordinary places and the minute you step on board a Scenic Spaceship you will be immersed in all-inclusive luxury. Meticulous attention to detail, first class service and intimate personal touches ensure your entire journey is truly unforgettable." (emphasis added)
On page 4 of the Brochure, the following statement was made: "As you sail effortlessly along Europe's majestic waterways, your Scenic Spaceship will be home for the duration of your voyage. Here you will experience a standard of luxury and service that you would expect in a five star hotel." (emphasis added)
At page 6, the following statement was included: "From the moment you step on board to be personally welcomed by the Captain and crew, until you are finally farewelled, you will enjoy a level of inclusive luxury and service that is unsurpassed on the waterways of Europe." (emphasis added)
Having regard to the statements which are contained in the promotional brochure by which intending passengers select their itinerary and upon the basis of which they make their bookings, it is reasonable to conclude that the intending passenger is impliedly making known to the supplier the result which the intending passenger wishes to achieve.

[80]

Damages

The plaintiff's claim for damages is formulated by reference to s 267 of the ACL.
To enable the proper identification of damages pursuant to that section, it is necessary to first consider whether any of the failures to comply with the consumer guarantees is a "major failure" within the meaning of s 268 of the ACL.
Section 268 of the ACL is in the following form: "268 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if: (a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (c) both of the following apply: (i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services; (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) both of the following apply: (i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier; (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or (e) the supply of the services creates an unsafe situation."
Given the nature of the services which were supplied and in the circumstances identified in these proceedings, namely that they were provided to Mr Moore, and his fellow passengers on the booked cruise, with respect to a single event i.e. prior to, and over the course of, an intended river cruise for which they had booked and paid, the Services did not involve any ongoing supply of services (or goods) past the end of that event. It follows that no question of remediation of the services could, or was argued to, apply.
In considering the question posed by s 268(a) of the ACL, I am satisfied that Mr Moore himself, and his fellow passengers, would not have acquired the services had they been "fully acquainted" with the nature and extent of the failure to comply with the guarantees contained in s 61 of the ACL. Putting it differently, had Mr Moore and his fellow passengers been told, or come to realise, that they would have little, if any, cruising on European rivers, and would have had a substantial part of their intended cruise provided by motorcoach transport with a variety of different accommodations requiring them to pack and unpack on a number of occasions, they would not have acquired them.

[81]

Compensation for Reduction in Value

A claim for compensation under this provision necessarily depends upon when the failure occurred, and the particular guarantee. Differing amounts of compensation may be available for breaches of different guarantees. This is so because the section calls attention to the value of the services provided as against the price paid for the services. It is convenient to consider compensation first with respect to the failures by Scenic with respect to the purpose and the result guarantees.
The plaintiff submitted that compensation in this respect is an objective matter. He submitted that the appropriate way to calculate the compensation is to determine the sum paid by Mr Moore for the Services. That, he submitted, was $10,990. Ms Howell also paid a similar sum. The sum paid comprised the costs of the cruise, including an upgrade to a higher grade of cabin on a higher deck, together with port costs and taxes. The plaintiff submitted that from that total sum, a daily cost can be derived, namely $732.66. The plaintiff submitted that a calculation of the number of days for which Mr Moore lost the value of the services, and in particular his loss of a luxury river cruising experience, on ten out of 15 days, meant that he should receive $7,362.60. In addition, the plaintiff submitted that he would be entitled to interest on this sum.
The defendant argued that in assessing the reduction in value, one should examine carefully not only whether the plaintiff enjoyed cruising on each of the days set aside for that in the itinerary, but what activities he actually undertook, whether he enjoyed any and if so which of those activities, and to only assess a lost value with respect to a particular activity and only to the extent which it was not provided. The end point of this submission by the defendant is that the best objective evidence of loss of value is $1,293 ‑ which is the sum calculated by Mr Moore's travel insurer.
The defendant pointed to the fact that Mr Moore did not abandon the cruise at any time during it. No doubt, the defendant submits that was "… because he subjectively perceived there to be a substantial value in the ongoing service which Scenic was providing". It also submitted that in assessing the diminution in value of the Services, the Court must take into account the fact that Mr Moore was willing, by booking the cruise, to accept a degree of risk about high (or low) water levels, and the disruption which could unexpectedly occur to his cruise.

[82]

Claim for Damages Pursuant to s 267(4) of the ACL

Section 267(4) of the ACL speaks of the entitlement of a consumer who has suffered foreseeable loss or damage to recover "damages" against the supplier of the services. This action is separate from and additional to the right under s 267(3) of the ACL to recover compensation from a supplier of services for any reduction in the value of the services: see s 267(5) of the ACL.
With respect to this claim, the plaintiff submitted that it is apt to include damages for disappointment and distress.
As the High Court's decision in Baltic Shipping Co recognised, where (at least) a contract, one object of which is to provide enjoyment, relaxation, pleasure or entertainment is breached, then damages for distress or disappointment are recoverable in an action for breach of contract: see Mason CJ (with whom Toohey and Gaudron JJ agreed) at 365; Deane and Dawson JJ at 381-382, McHugh J at 405.
The plaintiff submitted that damages for disappointment and distress fall within the term "reasonably foreseeable" when considered in the context of a consumer of recreational services of the kind the subject of this judgment. The defendant did not submit that damages for distress and disappointment were not reasonable foreseeable in the context of the supply of the Services by Scenic to Mr Moore and the group members. Rather, the defendant submitted that on a number of bases damages of this kind are not available in these proceedings.
Principally, the defendant relied upon the limitation of liability provided for in s 275 of the ACL, and various other provisions in the CLA which, Scenic submits are picked up by the ACL, and which apply to this head of claim.
Section 275 of the ACL is in the following form: "275 Limitation of liability etc. If: (a) there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3 2; and (b) the law of a State or a Territory is the proper law of the contract; that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services."
The defendant submitted that the effect of s 275 is to apply the law of NSW, including any statute law, where there has been a failure to comply with a consumer guarantee providing that such law limits, or precludes, liability and recovery of that liability for a breach of a term of a contract for the supply of services. The defendant submitted that the provisions of the CLA fall within that description.

[83]

Extra-territoriality

In John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, the High Court was called upon to consider the principles that govern by which legal regime a claim in tort that occurred in one Australian jurisdiction, and which was the subject of proceedings brought in another Australian jurisdiction, was to be determined.
In particular, the Court was called upon to consider what regime of damages would be applicable. At 840 [86]-[87], the judgment of the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said: "86. In Australia, in all its law areas, the same common law rules apply and any relevant difference in substantive law will stem from statute. Applying the lex loci delicti will apply a single choice of law rule consistently in both federal and non-federal jurisdiction in all courts and will recognise and give effect to the predominant territorial concern of the statues and territory legislatures. These factors favour giving controlling effect to lex loci delicti rather than the lex fori. 87. Application of the lex loci delicti as the governing law in Australian torts involving an interstate element is similar to the approach adopted in Canada … Accordingly, the common law should now be developed so that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element."
The Court went on to consider the issue of which damages law applied. There had previously been debate about whether laws relating to damages were in whole or in part substantive, or procedural. On that issue the, the plurality said at 544 [100]: "… All questions about the kinds of damage, or amount of damages that may be recovered, would likewise be treated as substantive issues governed by the lex loci delicti."
The High Court specifically noted in John Pfeiffer that it was not dealing with international torts, and that they were putting entirely to one side issues which might arise in an international context.
In Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491, the High Court considered the international context for application of laws relating to tortious injury. In Renault, a resident in New South Wales was seriously injured in a motor vehicle accident in New Caledonia where the laws of France applied. He commenced proceedings in the Supreme Court of NSW, alleging that his injuries were caused by the negligent design and manufacture of the vehicle in which he was travelling by the defendants which were foreign companies whose principal place of business was in France.

[84]

Statutory Context

The CLA was introduced in 2002. It was introduced initially by two separate Bills. The first called the "Civil Liability Bill" was introduced into Parliament in May 2002. The second part of that Bill was introduced in October 2002 and entitled "Civil Liability Amendment (Personal Responsibility) Bill". The Civil Liability Bill, the first piece of legislation, essentially introduced the damages regime which is now to be found in Pt 2 of the Act.
In introducing it, the Premier in his Second Reading Speech said: "The bill will implement Stage 1 of the government's tort law reforms. Three weeks ago I was in no doubt that these reforms were vital to the survival of our community. I have heard and seen the damage that the public liability crisis is doing to our sporting and cultural activities, small businesses and tourism operators, and our local communities. … Since I released the consultation draft of the bill, I have met with many local government and community representatives. They have told me that the approach of the courts to public liability is unsustainable and the government agrees with them. … This bill implements Stage 1 of the government's Tort Law Reform Program. I will introduce Stage 2 of the government's Tort Law Reform Program next session. … Stage 2 will introduce broad-ranging reforms to the law of negligence. … These reforms are urgent and I understand and share the sense of urgency. … The reforms that I am introducing today in Stage 1 are tried and tested: they have worked in health care liability, in motor accidents and in workers compensation. In contrast Stage 2 is unchartered waters."
The Premier went on to deal with the question of insurance premiums and predicted that as a consequence of the Government's Stage 1 reform, namely the introduction of a damages regime for public liability claims, there would be a 17.5% reduction in the cost of personal injury claims and a reduction of some 12% in public liability premiums.
At the time of the introduction of this Bill, there was a general perception and a view across Commonwealth and State governments that the award of damages for personal injury caused negligently had become unaffordable and unsustainable.
The Commonwealth government appointed an expert panel to review and report on a reform of the law of negligence. The first Bill dealt only with the awarding of personal injury damages, i.e. damages that relate to the death of or injury to a person which was caused by the fault of another person. When the second Bill was introduced, that section was amended so as to remove the requirement for fault.

[85]

Assessment of Damages

Damages for distress and disappointment are able to be assessed at large. In Mr Moore's case, the features of importance, as have been previously articulated, included the fact that this was his first trip to Europe and his first experience of a river cruise, the fact that he had booked it significantly far in advance with the expectation, according to the material given to him by Scenic, that he would be immersed in an all-inclusive luxury cruise along the rivers of Europe, that he had taken long service leave for this purpose and that his particular physical disability meant that the particular form of cruise which he chose was important.
Each case must be assessed according to the distress and disappointment which a person has suffered, and having regard to all of the facts and circumstances which are proved for that individual.
It does not seem to be correct to award only a token or nominal sum for such damages. I reach that conclusion by a consideration of other cases which have been given awards for damages for distress and disappointment. Those cases are: 1. Jarvis v Swan Tours Ltd where, Lord Denning MR, with whom Edmund Davies and Stephenson LJJ agreed, assessed damages for distress and disappointment in the sum of £125, which was very close to double the cost that the plaintiff had paid for his holiday, which was £63.90; 2. In Baltic Shipping Co, the trial Judge awarded damages for disappointment and distress in the sum of $5,000 which was a little under double the fare which totalled a little over $2,200. 3. In Insight Vacations, the trial Judge made an award of $8,000 for damages for disappointment which was a little under double the cost of the basic trip which was about $4,700: see Young v Insight Vacations Pty Ltd [2009] NSWDC 122 at [6]. Ultimately, as indicated above, that award was disallowed, but not on any basis related to the sum of money which was awarded.
Identifying these awards and having regard to them, I so as to be satisfied merely that awards of damages for distress and disappointment are not nominal or token awards does not contravene the principle in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 124. In Planet Fisheries, the High Court rejected a submission, in a case concerned with excessiveness of an award of general damages, that the Court should seek out a norm or standard from other decisions by which the award under challenge could be identified as disproportionate: see also Rogers v Nationwide News Ltd [2003] HCA 52; (2003) 216 CLR 327 at [69] per Hayne J.

[86]

Restitutionary Judgment for Money Had and Received

The plaintiff claims as an alternative, against the possible failure of his claim for damages for contravention of the statutory guarantees, an entitlement to a significant refund of the monies which he paid, on the basis of a claim for money had and received.
The plaintiff submitted that such an action arises where there is a failure of consideration in circumstances where payments are made for a particular purpose, and the purpose fails or the contemplated state of affairs disappears. The plaintiff submitted that here, by the mechanism of a daily allocation of the cruise cost, the consideration is partly severable so that monies paid for a purpose which has failed can be recovered.
The plaintiff went on to submit that the decision, to contrary effect in Baltic Shipping, is distinguishable.
The defendant submitted that there was nothing about the circumstances of the agreement between Mr Moore and Scenic which involved any apportionment of any of the payments at all, let alone to distinct performance obligations. The defendant submitted that the decisions relied upon by the plaintiff were not in point.
As I am dealing with a claim which arises only in the alternative, the claim can be dealt with quite readily, and without lengthy discussion.
I have earlier found that a single price was paid for the tour upon which Mr Moore embarked and further that, as the facts demonstrate, it was paid well in advance. There was no apportionment between the parties with respect to any part of that payment.
For my part, I find the circumstances here indistinguishable from those which applied in Baltic Shipping. There, the cruise passenger had paid monies in advance for the cruise. The ship sank 10 days into a 15 day cruise. The first part of the cruise had been undertaken without incident. The action for money had and received in that case depended upon an allegation of total failure of consideration.
The High Court held that a claim in restitution was not available to the plaintiff. At [12], Mason CJ said: "When, however, an innocent party seeks to recover money paid in advance under a contract in expectation of the entire performance by the contract breaker of its obligations under the contract, and the contract-breaker renders an incomplete performance, in general, the innocent party cannot recover unless there has been a total failure of consideration. … If the incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected of the contract, it will not be a total failure of consideration."

[87]

Summary

I have concluded that Mr Moore is entitled to compensation under the ACL for a breach of the due care and skill guarantee by Scenic amounting to a total of $12,990 plus interest. He has also established breaches of the purpose and result guarantees.
In terms of the issues raised at hearing, I have resolved them in the following manner:
On the issue of the proper characterisation of the services provided by Scenic to Mr Moore, I have held that the services were appropriately characterised as generally put forward by the plaintiff. That is, services which were recreational and were constituted by an all-inclusive, luxury five-star river cruise. Moreover, Scenic was obliged to provide, both in advance of the intended cruise and during it, information about events and circumstances and the impacts (other than de minimis) which those events and circumstances would be likely to have on a passenger's enjoyment of the cruise, and the ability of Scenic to provide those services in a timely manner.
I have found that the consumer guarantees applied to Mr Moore and the other passengers.
I have also found that the purpose guarantee and the result guarantees have been breached by Scenic in relation to all cruises except cruises 10 and 12. The due care and skill guarantee was not pleaded in relation to cruises 2 and 3, and I have found that it was breached in all cruises except for cruise 12.
Furthermore, I have concluded that the breach of the consumer guarantees constituted a "major failure" within the meaning of s 268 of the ACL.
As to Mr Moore's right to compensation, I have found that Mr Moore had an action to recover compensation for any reduction in the value of the services below the price he paid (s 267(3)(b) ACL) and also that he may recover damages for any loss which was reasonably foreseeable (s 267(4) ACL).
In construing the operation of s 275 of the ACL, I have determined that that section applies the provisions of the CLA. Accordingly, subject to the issue of extra-territoriality, I have found that Mr Moore's claim must fail because the evidence did not establish that the extent of Mr Moore's disappointment and distress could reach the minimum threshold fixed by s 16 of the CLA.
With regards to extra-territoriality, I have concluded that, absent any specific words displacing the presumption that legislatures do not presume to exceed their jurisdiction, the CLA cannot apply to Mr Moore's claim, where Mr Moore's distress and disappointment had occurred outside of Australia. As a result, s 275 of the ACL does not prevent Mr Moore's claim in damages.

[88]

Common Questions

It will be appropriate for the parties to have an opportunity make submissions on the way in which the identified common questions should be answered, and the form which those answers should take, including whether the questions are no longer to be regarded as being common.

[89]

Orders

I make the following orders: 1. Judgment for the plaintiff against the defendant in the following amount: 1. $10,990 by way of compensation; 2. $2,000 by way of damages; 3. Interest in accordance with s 100 of the Civil Procedure Act 2005, on the sum in (a) from 3 June 2013, and on the sum in (b) from 17 June 2013. 1. Defendant to pay the plaintiff's costs of his claim on a party and party basis forthwith. 2. Declare that for the purpose of order 2, and in accordance with UCPR r 42.34, I am satisfied that the commencement and continuation of the proceedings in the Supreme Court and not in any other Court was warranted. 3. Order the plaintiff to file and serve Short Minutes of orders which he proposes should be formally made by the Court on or before 29 September 2017 including the proper sum for judgment and interest. 4. Order the defendant is to file and serve Short Minutes of the orders which it proposes should be formally made by the Court on or before 20 October 2017. 5. Each party is to file with the Short Minutes of Order, the answers which it contends ought to be given to the questions agreed by the parties, together with an outline of submissions in support of the Short Minutes of Order and answers to common questions. 6. If any party seeks any costs order different from that which the Court proposes, then the party should file a notice of motion specifying such orders, together with all affidavits in support and outline of written submissions (not exceeding 5 pages) in support of such orders on or before 27 October 2017. 7. If a party opposes such costs order, then that party is to file all affidavits upon which it intends to rely and an outline of written submissions (not exceeding 5 pages) on or before 10 November 2017 8. Stand the proceedings over to 15 November 2017 at 9.30am for the determination of the appropriate orders to be made including the determination of any Notices of Motion for costs. 9. The parties have liberty to apply on 2 days' notice.

[90]

Amendments 31 August 2017 - [935] Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2017

(1990) 41 NSWLR 281

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