Moore v Scenic Tours Pty Ltd

Introduction

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

Procedural History

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

Common Questions and Answers

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

Notice of Motion

1. On 31 July 2020, Mr Moore filed a Notice of Motion seeking a range of relief with respect to damages.
2. Relevantly, that Notice of Motion sought the following: "Damages awards 1 An order pursuant to s 177(1)(e) of the Civil Procedure Act 2005 (NSW) for an award of damages (together with interest) for group members pursuant to s 267(3)(b) of the Australian Consumer Law ("the Reduction in Value Damages"). 2 An order pursuant to s 177(1)(f) of the Civil Procedure Act 2005 (NSW) for an award of damages (together with interest) in an aggregate amount for the disappointment and distress of group members pursuant to s 267(4) of the Australian Consumer Law ("the Distress Damages"). 3 An order pursuant to s 177(1)(f) of the Civil Procedure Act 2005 (NSW) for an award of damages (together with interest) in an aggregate amount for the airfares of group members pursuant to s 267(4) of the Australian Consumer Law ("the Airfare Damages").
3. Further consequential relief was sought.
4. This judgment deals with the assessment of damages for 31 group members, in addition to Mr Moore, under the three heads posed in the Notice of Motion.

Relevant Factual Findings from First Hearing

1. In order to set the background, it is necessary to record the following facts regarding what occurred on each of the Cruises.
2. Cruise 1, which was addressed at [453]-[483] of my first judgment, was a 14 day cruise through the south of France. The Cruise commenced on Sunday, 19 May 2013, with the first night in Paris at a hotel. Passengers were, on the morning of 20 May 2013, intended to travel by the fast train, the TGV, to Dijon from where they would be transferred by coach to Chalon-sur-Saône to board the Scenic Emerald. The Cruise was intended to finish on 1 June 2013, when passengers would disembark the ship in Arles and be transferred by coach to Nice airport. The planned itinerary included 12 days of cruising. The route proceeded south from Chalon-sur-Saône in central France to Arles in the south of France, passing through Tournus, Macon, Trevoux, Lyon, Vienne, Tournon, Viviers, Châteauneuf-du-Pape and Avignon.
3. In the end passengers on Cruise 1 cruised on only one of the 12 planned cruising days. The passengers were instead provided with coach trips, which took many, many hours, during which they travelled to various locations and then returned to the Scenic ship when it was docked. They were also accommodated in hotels, two nights in Avignon and one night in Nimes, which required them to pack and unpack their suitcases for each hotel stay, and as the ships were changed.
4. Cruise 2, which was addressed at [484]-[496] of my first judgment, was to proceed along the route from Budapest to Amsterdam, passing through Vienna, Dürnstein, Melk, Linz, Passau, Regensburg, Nuremberg, Bamberg, Würzburg, Wertheim, Rudesheim, Marksburg, and Cologne ("the Budapest to Amsterdam route"). The Cruise was scheduled to commence on 20 May 2013 upon the Scenic Jewel.
5. From 20 to 28 May 2013, Cruise 2 proceeded as scheduled. However, for three days from 28 to 30 May 2013, no cruising occurred as the ship was docked in Bamberg and unable to leave. On 31 May 2013, the passengers were transferred by coach for the day as they changed ships. Although some cruising occurred overnight, there was no daytime experience of cruising. From 1 June to the conclusion of the Cruise on 3 June 2013, the Cruise proceeded as scheduled.
6. Cruise 3, which was addressed at [497]-[523] of my first judgment, was to proceed from Amsterdam to Budapest, through the towns named in [19] above but in the reverse order ("the Amsterdam to Budapest route"). The Cruise was scheduled to commence on 25 May 2013 on the Amadeus Silver.

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

Legal Principles

1. The plaintiff and group members claimed, pursuant to s 267(3)(b) of the ACL, the sum of money which represented "compensation for any reduction in value of the services below the price paid". This section is applicable because of the finding in my first judgment that the breaches of the consumer guarantees constituted a "major failure" within the meaning of s 268 of the ACL.
2. It is important not to overlook what a major failure is defined by s 268 of the ACL to be - that is, that "… the service would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure …".
3. Where the services provided would not have been acquired by a reasonable consumer who knows of the nature and extent of the major failure, it may seem to be an entirely artificial and rather impractical notion that those services had any residual value. That is because the notion of damages which most closely approximates a major failure is the "no transaction approach" to damages. That is, but for the breach of contract or tortious duty of care, the claimant would not have entered into the transaction. Damages so assessed ordinarily result in an award which includes all monies expended on the unsatisfactory transaction and, as well, any consequential losses: see, by way of example, McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79.
4. However, as is apparent from the Court of Appeal's judgment at [331], counsel for the plaintiff and group members, who does not appear on the present proceedings for the plaintiff and group members, accepted that the value of the services which were provided should be determined by reference to "market considerations", that is, an amount a fully informed consumer would have been prepared to pay for those services.
5. Given this concession and notwithstanding my earlier comments, I am obliged to make the assessments on the basis enunciated by the Court of Appeal.
6. That basis for an award was considered in the Court of Appeal's judgment from [327]-[335]. From those paragraphs, I derive the following: 1. any assessment is to be made by having regard to objective considerations and circumstances, and not to any subjective matters; 2. the value of the services actually supplied by Scenic should be determined by reference to "market considerations"; 3. a means of assessing the "market value" of the services provided would be to estimate the amount "a fully informed customer would have been prepared to pay for those services"; 4. a market-based assessment of the value of the services actually provided, applying objective criteria, is a matter which requires, or else ought to have as its foundation, evidence led in the proceedings.

Evidence

1. The plaintiff called Ms Dianne Butler to give expert evidence on the claim made pursuant to s 267(3)(b) of the ACL for the difference in value between the services that ought to have been provided and those that were actually provided. It will be convenient to describe this as the "lost value claim". Ms Butler described herself as a tourism management and marketing expert. She had experience in developing and designing packaged tour itineraries for sale to Australian travellers and reviewing the performance of these packages. This included fixing the price at which the packages would be sold. She had also held teaching positions in the marketing discipline.
2. Ms Butler's initial opinion was that none of the Cruises, as they actually took place, would be a marketable tour package. She said that a fully informed, reasonable consumer would not purchase any of the Cruises as a tour package - accordingly, on her first methodology, she concluded that the Cruises would have no (or only nominal) market value.
3. She noted that this opinion was based upon the assumption that the fully informed consumer would be someone who was interested in undertaking a river cruise. Ms Butler said, and I accept, that one significant difference between river cruises and coach tours was that cruise holiday operators promote the journey on board as being part of the holiday experience, whereas the coach holiday provider concentrates their marketing efforts on the destinations, sight-seeing highlights and free time.
4. Ms Butler articulated an alternative methodology for arriving at the lost value claims. For this purpose, Ms Butler assumed that the consumer was indifferent to alternative holiday offerings but was willing to accept a tour that was not marketed as a luxury cruise package, or a luxury coach holiday, but, rather, was marketed having regard to price and was targeted at the consumer who would accept the package for what it was.
5. On the alternative methodology, Ms Butler engaged in the assessment of the daily cost of the cruise calculated by reference to the number of nights spent on the cruise, the daily cost of coach travel and the making of appropriate allowances for cabin supplements. She then applied a discount to the calculated price to reach the price at which a package could be marketed to a fully informed consumer. In so doing, Ms Butler was offsetting a negative experience on one day against positive experiences on another to determine the value of the package as a whole.

Discernment

1. The joint report recorded that the experts had reached an agreement with respect to Cruises 1, 2, 5 and 9. I accept the valuation of these Cruises, as agreed by the experts.
2. Cruises 3, 4, 6, 7, 8 and 11 were cruises in respect of which there were quite significant disruptions. They were cruises in relation to which Ms Butler thought that there was no real market for them if marketed as a cruise package. Mr Hoffman agreed with that opinion but expressed the view that there was a market for a very low-cost budget traveller who might be prepared to pay the price which he had fixed. In the case of these Cruises, accepting the fact as the experts agreed, that such a package had never been marketed by anybody, and accepting Mr Hoffman's approach that he was merely contending that the price he suggested was a price at which such a package might possibly be able to be marketed, I prefer to take the lower valuation proffered by Ms Butler for these Cruises on the basis of those matters and because, generally speaking, I preferred her evidence and her more logical and careful approach.
3. It is appropriate to record these conclusions in a table, which I now set out. Cruise No. Base Cabin Price Expert Opinion - Market Value Court Finding % Value Received Damages 1 $7645 $2905 $2905 38% 62% of price paid 2 $7195 $4290 $4290 60% 40% of price paid 3 $6495 $1299 - $1599 $1299 20% 80% of price paid 4 $7195 $719.50 - $1999 $720 10% 90% of price paid 5 $7195 $2439 $2439 34% 66% of price paid 6 $7195 $2249 - $3580 $2249 31% 69% of price paid 7 $7195 $2878 - $4199 $2878 40% 60% of price paid 8 $7195 $719.50 - $1599 $720 10% 90% of price paid 9 $6495 $2999 $2999 46% 54% of price paid 11 $7195 $1654.85 - $1999 $1655 23% 77% of price paid

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

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

1. The second part of the damages claim relates to distress and disappointment.
2. In accordance with the decision of the High Court in this matter, damages for distress and disappointment are recoverable by the plaintiff and the group members. Although the basis for the damages is a breach of the consumer guarantees contained in the ACL, the assessment proceeds in accordance with the principles developed for breach of contract cases.
3. The damages awarded in "holiday cases" such as this one compensates a plaintiff for what they were promised when the expectation of a happy, joyous, peaceful and contented holiday has been unfulfilled. What is involved is a comparison between the expectations of the individual traveller and the reality of what that traveller was provided: see the High Court's judgment at [46].
4. Although in a shorthand way, these damages are described as being for "distress and disappointment", the authorities suggest that such an award of damages is much broader.
5. In Jarvis v Swan Tours Ltd [1973] QB 233 ("Jarvis") at 238, Lord Denning MR said relating to a breach of contract this: "If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. … Take the present case. Mr Jarvis has only a fortnight's holiday in the year. He books it far ahead, and looks forward to it all that time. He ought to be compensated for the loss of it. … … Mr Jarvis's fortnight winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and back and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendants said he would have. He is entitled to damages for the lack of those facilities, and for his loss of enjoyment."
6. Edmund Davies LJ said at 239 in Jarvis, that the Court was bound to "contrast the overall quality of the holiday so enticingly promised with that which the defendants in fact provided".
7. His Lordship had earlier said of Swan Tours at 239: "They assured and undertook to provide a holiday of a certain quality with 'Gemütlichkeit (that is to say, geniality, comfort and cosiness) as its overall characteristics, and 'a great time', the enjoyable outcome which would surely result to all but the most determined misanthrope."

Cruise 1 - Mr Richard Britten

1. Mr Britten travelled on Cruise 1 which commenced on 19 May 2013. At the time of travelling, he had retired. He travelled with his wife, Lesley. They booked the Cruise about 12 months before they travelled. Mr Britten paid for a balcony suite (Category P) which cost about 23% more than the base cabin rate.
2. Mr Britten's cruise was part of a longer holiday which included spending time before the Cruise in Barcelona and, after that, by taking another cruise on the Mediterranean. After the Mediterranean cruise, Mr Britten travelled to Paris for a few days, toured Normandy and the Somme battlefields, and then connected to the Scenic Cruise upon which they had booked. After the Scenic Cruise they immediately flew home.
3. Mr Britten booked Cruise 1 in particular so that he would be able to celebrate his wedding anniversary during it. He wanted it to be a special holiday with his wife to celebrate their marriage.
4. Prior to travelling, Mr Britten had undergone two total knee replacements and he found it difficult to walk a lot or to travel in uncomfortable and cramped vehicles such as buses.
5. He had previously enjoyed a Scenic cruise along the Rhine, Main and Danube Rivers. On that cruise, he had had no difficulty with his knees and had been able to unpack his suitcase just the once and then experience a two-week cruise in a relaxed environment.
6. In addition to wanting to enjoy the luxury, the five star standard of service and the spacious and comfortable staterooms which were promised in the Brochure, Mr Britten was particularly looking forward to a relaxed pace of sailing with views of stunning landscapes, multiple dining options whilst on board to be enjoyed in a large dining room with a relaxing atmosphere and ambience, and a variety of interesting excursions, particularly a visit to the Camargue to see birdlife because he and his wife were keen bird watchers.
7. Mr Britten and his wife had never been to southern France before and they were looking forward to experiencing it by a relaxing river cruise in what Mr Britten regarded as a famous wine-making region. He imagined himself enjoying the wines of the region while calmly sailing down the river.
8. As earlier mentioned, it was particularly important to Mr Britten that he stay in the same accommodation throughout the Cruise without having to frequently unpack and re-pack his luggage.

Cruise 1 - Mr Peter Davis

1. Mr Davis is a man in his early 70s who, although retired, undertakes some part‑time work. He booked, together with his wife and four other friends, on Cruise 1 about seven months or so prior to the commencement of the Cruise.
2. The group of people with whom he was travelling, a total of six, had travelled together as a group prior to this occasion, and had met some years earlier while undertaking a river cruise.
3. Mr Davis and his wife travelled to the Cruise via London where they spent a couple of days. After the Cruise concluded, they embarked on a coach tour organised by Scenic in Spain and Portugal following which they flew to Switzerland and embarked on a seven-day train tour around Switzerland.
4. Cruise 1 was the first time after his retirement that Mr Davis had undertaken a trip overseas from Australia.
5. Because of previous river cruising experiences, Mr Davis and his wife had found travelling along the river with everchanging landscapes and different tours available along the way to points of interest to be very enjoyable and very relaxing experiences. It was these enjoyable and relaxing experiences that Mr Davis was looking forward to on Cruise 1.
6. At the time of booking Cruise 1, Mr Davis was planning to retire and was looking forward to it as a post-retirement reward. Because Mr Davis was retiring, he regarded the Cruise as a very expensive purchase, but he budgeted for it and saved for some time, and it represented a reward to him upon his retirement after a lifetime of hard work.
7. He accepted that he was paying a premium price in booking a cruise with Scenic but justified that to himself on the basis that he would be receiving a top‑quality product proportionate to the price that he was paying. One of the reasons that Mr Davis thought it worthwhile to pay a premium to travel on Cruise 1, was: "…to experience a top quality itinerary together with the luxury of cruising to a new destination every day. It was important to me that the locations came to me, as this meant I did not have to spend time moving, and that time could be better spent relaxing on board the cruise and exploring the new cities I was in."
8. Two particular excursions, the kayaking trip in Viviers and the trip to see birdlife, including flamingos, on the excursion to the Camargue, were trips that Mr Davis was particularly looking forward to.

Cruise 1 - Mrs Morna Hill

1. Mrs Hill was retired at the time she, together with her husband, booked a cabin on Cruise 1. The booking was made about 11 months or so before the Cruise was due to depart. The Cruise package included her flights to and from Europe. Mrs Hill and her husband spent about a month in Europe and in the United Kingdom, including visiting their son and his wife and other family and friends before flying to Paris to commence the Cruise. At the conclusion of the Cruise, they undertook a further 14-day coach journey around Spain and Portugal.
2. Mrs Hill was a seasoned traveller prior to undertaking Cruise 1. She had embarked on 18 cruises on oceans and seas in various locations around the world. This cruising experience had commenced when she was about 18 years old and had continued from time to time since. She was enamoured of the cruising lifestyle, finding it an unrestricted and pleasant way to pass days and evenings with the possibility of different food and entertainment each day. She also enjoyed meeting and making new friends on her cruises. Of particular significance was that in April 2007 she undertook a Scenic cruise from Amsterdam to Budapest. She had a wonderful time on board that cruise and thought it was a very well organised cruise with a professional Cruise Director.
3. Although she had been on a number of bus tours in the past, she did not enjoy them and much preferred cruising. In particular, she preferred to be able to unpack once and stay in the same accommodation throughout her holiday.
4. Before booking her Cruise, Mrs Hill read through the Brochure published by Scenic. She was pleased with the itinerary for the South of France Cruise, which was important to her as she wanted to see new locations. She had not been to France before with her husband and was looking forward to that experience. She was particularly looking forward to the slow pace of the Cruise set out in the itinerary and being able to relax and slowly see the southern part of France, rather than undertaking a rushed trip.
5. Mrs Hill was particularly looking forward to the excursions provided to Tournus, a traditional silk factory and Pont du Gard.
6. She expected, having read the Brochure, that the river Cruise would be of a higher standard that the ocean cruises she had previously travelled on and she particularly wanted to make sure that she could cruise in comfort and relax because she had had a hip replacement prior to the Cruise. Because she was not keen on bus coaches and wanted to enjoy the 14-day Cruise, Mrs Hill was looking forward to being able to unpack her luggage once and to settle into her cabin.

Cruise 2 - Ms Jennifer Bosich

1. Ms Bosich, who is retired, booked to travel on Cruise 2 with her partner, Mr Trevor Smith. Although the evidence is unclear, it seems that the booking occurred in October 2012, about seven months or so before the trip. Prior to that, Ms Bosich had spent many months researching which cruise it would be appropriate to take - including by speaking to her travel agent.
2. A few years prior to taking Cruise 2, Ms Bosich had undergone surgery on her ankle, which meant that she was unable to sit comfortably for long periods of time in the same position. She also suffered from pain in her hips if she had to sit for long periods of time. As well, because she is quite tall, she often finds buses to be cramped and uncomfortable.
3. For those reasons, and for the extra leg room and comfort, Ms Bosich chose to purchase Business Class air tickets and to take a cruise holiday rather than a coach holiday.
4. At the time she booked, Ms Bosich was contemplating undergoing surgery for various medical conditions, and she took the view that this would be her last holiday away from Australia. She undertook her research, as I have said, for about six months because a cruise of this kind was an expensive trip for her and her partner, and she wanted to make sure that her money was well spent.
5. Ms Bosich read the Scenic Brochure carefully and noted such features as the Cruise would provide a five-star standard of luxury and service, that it would be a relaxing experience, that there would be plenty of time to relax and enjoy watching the river scenery no matter the weather, that there was a range of dining options in a relaxing atmosphere, an indoor and outdoor viewing area for the scenery and that there would be on-board entertainment every evening after dinner.
6. She gave this evidence, which I accept: "32 As I had very limited cruising experience, I was very fascinated with the different ports that we would pass by. I was particularly intrigued by the countries that we would visit, as I was really excited to be on a cruise that passed through some of the cities that I had been dreaming of visiting in Germany and Austria, due to the rich history in each of these areas."
7. As mentioned earlier, Ms Bosich particularly opted for a cruising holiday because of her medical conditions. She had had surgery on her ankle and a hip replacement. Because of her height she found buses to be cramped. She said this of her expectations, having regard to her medical conditions: "37 I thought that a cruise would be a much more relaxing and comfortable way to travel in the circumstances. I thought that I would be able to rest on the ship when needed, without having to move around from place to place on a bus. I expected that I would be able to unpack my belongings and relax in my cabin on the cruise ship, rather than constantly moving from one place of accommodation to another. I thought this would be much more suitable to me given my mobility. 38 In light of my medical condition, it was important to me that Scenic's cruises offered me the opportunity to select the excursions which I would participate in. As a result of my arthritis and my hip replacement, I have limited walking capacity, and I am unable to do much walking. I wanted to be able to select excursions that would not require me to walk too much or take long bus journeys."

Cruise 2 - Mr Paul Osenton

1. At the time he booked the Cruise in late November or early December 2012 for himself and his wife Suzanne, Mr Osenton was retired and working part-time. The package he booked, which included being accommodated in a Junior Suite (Category BJ2), was about 40% more expensive than the base cabin.
2. Mr and Mrs Osenton flew from Perth to Budapest, arriving the day before they were due to board the Scenic Jewel, and flew home from Amsterdam a day or so after the Cruise finished. Mr Osenton, prior to taking this Cruise, had rarely travelled within Australia or overseas. From time to time, for family reasons, he had travelled to the United Kingdom.
3. By the time he came to make the booking on Cruise 2, Mr Osenton disliked bus tours and did not wish to travel on them. He did not fancy living out of a suitcase on a day-to-day basis as would ordinarily be required on a bus tour. He found that it was a burden to unpack his belongings each night and repack the following morning. As well, he found the hectic schedules of the couple of bus tours which he had previously taken to be very tiring.
4. Mr Osenton had never been on a river cruise before making the booking on Cruise 2. He wanted to make it the best possible holiday for himself and his wife and thought that it would probably be the last major holiday he would have because he was approaching complete retirement and giving up his part-time job.
5. His expectation was formed by watching television shows such as "Getaway" and "Postcard" on which Scenic cruises were often featured. As well, he carefully read the Scenic Brochure. He recalled noticing that the accommodation, food and drink to be provided would be of a standard of luxury that would be provided in a five-star hotel. He also recalls being told that the Cruise would be the trip of a lifetime and he would have ample time to relax and watch the river pass and explore villages and countryside at his own pace.
6. Mr Osenton selected Cruise 2 because he had not been to any of the places along the planned route before. He thought that 15 days was a good period of time to be away from home and that it would be enough time to relax and unwind and see a good number of new places in order to have a memorable experience.
7. He said, and I accept, this: "36 I thought that cruising would be the best way to discover all these new places as it would allow me to enjoy all the good aspects of travelling, such as relaxing, sightseeing and undertaking fun activities, without having to worry about any of the bad aspects of travelling such as having to pack up your luggage and move to the next place, keep to a strict schedule, or being worn out and overly rushed."

Cruise 2 - Ms Jacqueline Ward

1. Ms Ward booked to travel on Cruise 2 with her parents, Pauline and Michael, in about October 2012.
2. Ms Ward decided to take a cruise holiday with her parents because her father was suffering from mesothelioma, a terminal illness, had a limited lifespan and was severely restricted in his movements as he had only one active lung.
3. Ms Ward described in her affidavit the reason for taking this trip, which I entirely accept: "21 I did not know how long he had to live. Due to my father's deteriorating health, I thought that this cruise would probably be our last holiday together as a family before my father's passing. I wanted him to experience the best holiday possible and I wanted to enjoy his company and make memories together whilst we could."
4. Ms Ward spent about one year between commencing her research to identify an appropriate cruise and making her booking for Cruise 2. She wanted to look at the range of holidays available and she needed time to save for the purchase of her ticket.
5. Ms Ward was looking forward to the Cruise because she expected, having read the Brochure, that the entire Cruise would be a rare opportunity for her to escape and take time out from her own busy schedule. At that time, she was working as a shift worker and as a carer for her father, and between those responsibilities she had little or no time to do things which she enjoyed. She was looking forward to the Cruise because it presented an opportunity for her to be able to take part in activities in which she was interested while at the same time being reassured, and having a degree of peace of mind, that her father would be enjoying himself as well.
6. She particularly chose a cruising holiday because, having regard to her father's limited physical strength, she thought that it was the only option which would accommodate his needs and allow him to go at his own pace for the entire Cruise. She thought her father would find it enjoyable and relaxing and that he would be rested and rejuvenated after it. For that reason, a cruise was particularly important because her parents would be able to pack and unpack their belongings just once and her father would be able to retire to his room at his convenience.
7. She said this in her affidavit, which I accept: "30 I did not even consider booking a bus tour because from my own experience with a bus tour, I knew that is was very physically tiring and it would not be enjoyable for me or my parents, particularly my father, who I believed would not physically be able to cope. I did not want to live out of a suitcase and be continually looking at the clock to adhere to a schedule. I wanted to maximise the opportunity to spend every moment either with my father throughout the entire cruise and relaxing in his company or relaxing myself."

Cruise 3 - Mr Peter Lardner

1. Mr Lardner travelled with his wife, his sister and brother-in-law on Cruise 3. He booked for the Cruise about 12 months before it departed. At the time he took the Cruise, Mr Lardner was 67 years old. He was self-employed and was largely reliant for his income on his superannuation.
2. He had previously undertaken bus trips and tours but did not like moving around from hotel to hotel and having to be packed and ready to leave, often early in the morning.
3. He investigated a series of cruises and in discussion with his travelling companions selected Cruise 3. He observed that the trip was to take place on a brand-new ship with luxurious staterooms with balconies, well-designed public areas and dining spaces.
4. He expected that the scenery would be spectacular, and it was important to him to take in those scenes whilst relaxing on the ship. He said that he deliberately booked a cabin with a balcony and which would have a small lounge area where he could spend time and entertain guests such as his sister and brother-in-law.
5. He said this, which I accept: "27 In addition, I knew that Cruise 3 would allow me to experience the unique features of the river, such as the locks, which I simply could not imagine a ship passing through. I wanted to experience the captain's skilled navigation of the ship first-hand and thought it would be fascinating. …"
6. Mr Lardner had a particular interest in the history of World War I and World Ward II, war history museums and memorials. On this trip he was particularly looking forward to having a memorable experience in Nuremburg because of the itinerary permitting visits to areas of significance to the Third Reich in the World War II and the World War II Documentation Centre.
7. Mr Lardner specifically booked a cruise rather than a bus tour because, as he was travelling in a group of four, it would have been much more difficult to have had conversations as a group on the bus and to share time together.
8. When he booked the Cruise, he had a particular condition which when exacerbated made walking quite painful. It was, however, not such a bother when he was resting or walking at a leisurely pace. For that reason, he booked on the Cruise expecting to have plenty of time to take in the various sites and attractions and avoid exacerbating his medical condition.

Cruise 3 - Mr Howard Russell

1. Mr Russell, who operates his own accounting and bookkeeping business in rural Victoria, booked for himself and his wife to travel on Cruise 3 about 12 months prior to the departure date. His airfares formed part of the package with which he was provided. Although he and his wife flew Business Class, those flights were included for a lower price as part of the deal negotiated when he booked on Cruise 3.
2. Prior to booking on this Cruise, Mr Russell and his wife had enjoyed one cruise together about five years previously in Egypt, with a different company, and they had travelled to Hong Kong for about a week to visit a friend. Other than those two overseas trips, they had not travelled internationally at all.
3. Mr Russell booked on Cruise 3 intending that it would be a second honeymoon for his wife and himself and that it would be the "holiday of a lifetime". He was looking forward to a holiday which included a cruise on a brand-new ship, luxurious accommodation with butler service and lots of rest and relaxation.
4. As Mr Russell had not previously travelled to Europe, he was looking forward to discovering and exploring the history, the old buildings and cultural sites. Mr and Mrs Russell booked into a number of the advertised attractions and excursions, for which they paid extra, because Mr Russell felt that they would contribute to long-lasting memories of his "holiday of a lifetime".
5. Mr Russell was expecting in undertaking the Cruise to be able to enjoy it as a very relaxing experience. He wanted to arrive home from the Cruise feeling totally refreshed and as though he had accomplished something. In particular, he noted that one of the significant benefits of the Cruise was that he would be able to unpack his bags once and stay in the same place for the entire duration of the Cruise. Because of that particular attraction, he chose a top of the range, dual balcony suite on the top deck of the ship.
6. The cost of the cabin increased the cost of the base cabin by about 66%.
7. In his affidavit, Mr Russell expressed his disappointment in these terms: "96 Cruise 3 felt like a disaster. I simply did not receive the holiday of a lifetime I had been looking forward to. I felt that my second honeymoon with Joanne had been ruined and that I had been completely deprived of an opportunity to relax, unwind and enjoy myself."

Cruise 3 - Mrs Pamela Watson

1. Mrs Watson booked for her husband and herself to travel on Cruise 3 with two good friends, Mr and Mrs Hearne. Mrs Watson was employed on a casual basis and had made the booking in around September 2012, about eight months before the Cruise departed. Mrs Watson had not travelled in Europe before this trip and, at the time of booking the Cruise, she and her husband had just relocated from a regional city in NSW to Melbourne. This was a particularly difficult and stressful relocation and it caused them to look forward to a relaxing and stress-free holiday. Mrs Watson enjoyed travelling with Mr and Mrs Hearne, whom she regarded as good friends.
2. Mrs Watson commenced seeking information about the Cruise approximately 12 months prior to making the booking.
3. Mrs Watson was attracted to the Cruise because it was 15 days long, which she thought would allow for her to be fully immersed in the luxurious experience and in particular, it would be important to have a cruise of that length for her husband who had been working particularly hard. Mrs Watson specifically chose Cruise 3 because it meant that her and her husband's 25th wedding anniversary would fall on the day when the Cruise was scheduled to sail through the Rhine Gorge and her birthday would fall on the day when the Cruise was scheduled to be in Würzburg in Germany, which was a particular attraction for her. She expected that these features of the Cruise, having regard to those special events, would be a great way to celebrate those events and to create special memories. As well, Mrs Watson was looking forward to sailing into Budapest in the evening, past the famous Parliament buildings which would be a spectacular to end her "once in a lifetime luxury cruise".
4. Mrs Watson and her husband had previously taken a trip largely by coach and train in Canada during which they had to pack and unpack at every stop. One of the main reasons why she decided to undertake a river cruise on this occasion was to avoid doing that, and she would be able to unpack once for the two weeks and settle in and enjoy the holiday. She regarded the Cruise as a special treat for her husband and herself.
5. Mrs Watson and her husband saved for the Cruise over a period of about three years by putting all her income, which she earned in a casual role as a medical receptionist, towards their travel cost. This involved undoubted sacrifices on their part.

Cruise 4 - Mr Andrew Cairncross

1. Mr Cairncross was a man who, by reason of his work, was accustomed to doing a significant amount of international travelling, including long international flights, short stays in multiple countries and return trips to Australia.
2. About six months or so before Cruise 4 commenced, he and his wife decided that they wanted to go on a river cruise through Europe so that they could have a holiday together to relax, take a break from work, pamper themselves and enjoy each other's company. This was particularly important as Mr Cairncross was frequently away from his wife on business trips throughout the year.
3. In particular, having regard to the way in which he usually travelled overseas for business Mr Cairncross was looking forward to an experience where he could relax and unpack his bags once throughout a 15-day trip. He was looking forward to everything being taken care of for him and not having to worry about moving from one place to another.
4. Initially, for the first few days of Cruise 4, there was no difference to the itinerary. Thereafter, on each of the subsequent days, there were major itinerary changes, and the Cruise did not, in effect, take place. One of the disappointing features of this Cruise for Mr Cairncross was that he could not obtain any clear information from the staff on board the Scenic Jewel when it was docked in Bamberg as to what was happening. After he and his wife changed ships on two occasions so that they arrived on 5 June 2022 in Krems to board the Scenic Sapphire, Mr Cairncross noted that the ship was moored in an industrial area without any views, and that there was a foul smell pervading the ship.
5. On the morning of 5 June, Mr Cairncross sought information from the Cruise Director about how long the passengers would be on board the boat in Krems, when it would be leaving and what was to happen with the Cruise. The Cruise Director informed Mr Cairncross that he did not know what was happening and was unable to offer any more information to he and his wife. Mrs Cairncross found this to be most upsetting. At that stage, having regard to the fact that they were not able to undertake any cruising, and what they felt was a lack of transparency from Scenic as to the actual changes of the itinerary and when they would be cruising again, Mr and Mrs Cairncross decided to leave the Cruise. The poor weather added to their decision but was not the reason for it. They incurred significant additional expenses for the further accommodation and travel. They travelled independently on to Vienna and then on to Budapest and then re-joined the Cruise on the last night of it in Budapest so that they could resume the second leg of their holiday.

Cruise 4 - Ms Suzanne Forrest

1. At the time she booked Cruise 4 and at the time of cruising, Ms Forrest was a school psychologist. She has since retired. She booked the Cruise about 12 months before its departure and travelled on it with three of her friends.
2. At the time she made the booking for the Cruise, Ms Forrest was a single parent. She had supported her daughter through her university degree and her daughter had recently obtained employment and moved out. She had a number of other financial commitments but made the decision to save for a river cruise. She had not previously travelled on a cruise, although she had been on a multi-day bus tour a couple of years before booking the river Cruise. The Cruise was only her second time travelling overseas, and she wanted to have a relaxing time to enjoy with her friends.
3. Ms Forrest researched the Cruise carefully before booking - it took her a long time to book the Cruise because she thought it was unlikely that she would be able to visit Europe again.
4. Because she had not travelled to Europe before, she was particularly looking forward to the Cruise and the tour. She was looking forward to experiencing a completely different way of life by visiting medieval towns and enjoying the scenery. She was particularly interested in Budapest and exploring it and learning about it.
5. Having regard to her family circumstances when she was growing up and the fact that she was a single mother who had supported her daughter at the same time as having significant financial commitments, Ms Forrest did not ever really think that she would be in a position to travel internationally and so she was quite proud of the fact that she had saved money to experience all of the features of Cruise 4. In those circumstances, it was particularly important to her that the Cruise was all inclusive and, therefore, she could relax and enjoy the whole trip without having to worry about budgeting extra money, changing accommodation and otherwise being stressed.
6. Putting it differently, Cruise 4 was for Ms Forrest the most extravagant purchase that she had ever made and she was looking forward to care being taken of her for a change, and indulging and spoiling herself.
7. It was a particularly important consideration for her that she would unpack her bags only once and stay in the same five-star accommodation for the entire trip.

Cruise 4 - Mr Frank Holgye

1. Mr Holgye contracted polio as a child and, as a consequence, at the time of Cruise 4 walked with a caliper on his leg and with crutches. His condition limits the amount of walking he can do on any day.
2. Mr Holgye had previously experienced a bus tour and as a result of his disability found it extremely difficult and tiring, and so he decided with his wife that they would take a river cruise in Europe because it would allow him to experience the sights of Europe without having to walk great distances on his crutches.
3. Mr Holgye and his wife booked Cruise 4 in early October 2012. At that time, it was particularly important to him that the majority of the Cruise took place on board the ship and that the coach trips were short and sporadic over that period so he would not have to do too much walking.
4. Shortly after sailing from Amsterdam on 28 May, Mr and Mrs Holgye were able to observe a number of large mature trees which were growing out of the water and that there were obviously rising river levels. On that evening, during the port talk, the Cruise Director informed the passengers that there were problems with rising river levels which would affect their ability to sail on the ship and that there would be some revisions to the current itinerary.
5. On 31 May, passengers on Cruise 4 were required to disembark the Scenic Ruby and travel by coach to embark in Bamberg on the Scenic Jewel. The coaches were located about 1km up a hill from where the Scenic Ruby was moored. Mr Holgye found that particularly difficult on his crutches and that it was very difficult to get up and down the stairs on the coach. As a result of the lengthy coach tours on that day, the minimal rest and having to use his crutches, by the time he arrived at the Scenic Jewel he was extremely tired and had sore hands.
6. Mr Holgye's evidence, which is careful and detailed, records all of the difficulties which he had with the arrangements which were made to travel by bus, to embark and disembark from different ships and having to endure shorter periods of time during excursions because of the need to re-join buses. I have no hesitation in accepting Mr Holgye's evidence.
7. Upon returning to Australia, Mr Holgye engaged in correspondence with Scenic. In a letter sent on 23 July 2013, he said this: "Notwithstanding, I (Frank) am a person who contracted polio in 1956 and since then have been able to cope with most hardships life has thrown at me. I tried a bus trip some seven years ago and found out very quickly buses and I just don't work and that's why I paid for a river cruise. What I found extremely difficult and physically debilitating was to get on and off the many buses that were required to be used because we were no longer cruising so Scenic could appear to somehow justify to whoever that they had done their best to provide goods and services. I think not."

Cruise 4 - Ms Patricia Komiyama

1. Ms Komiyama booked the Cruise from Canada where she lived in British Columbia. She intended to travel on Cruise 4 with her husband and four of their friends. Ms Komiyama and her husband, Bruce Tattrie, flew from Vancouver to Amsterdam, arriving a couple of days before Cruise 4 commenced and flew home from Budapest a couple of days after the Cruise finished.
2. Cruise 4 was the first occasion when Ms Komiyama had travelled on a river cruise. She had previously been on four ocean cruises - none of which was with Scenic.
3. Ms Komiyama and her travelling companions were all about the same age. She and they intended Cruise 4 to be a celebration of their collective 60th birthdays. As well, she and her husband were celebrating their 35th wedding anniversary while on the Cruise.
4. Ms Komiyama spent between six and 12 months gathering information about which cruise she wished to go on and then booking the Cruise. It was a complicated effort because each of her travelling companions had to organise time away from work so that they would be able to travel together. As well, Ms Komiyama was a carer for her mother, who suffered from dementia. In order to get away on the Cruise she had to undertake the process of finding a suitable substitute carer. She found this stressful.
5. Ms Komiyama expected that if she booked a cruise with Scenic, she would get to experience the wonderful scenery set out in the Brochure and the relaxation on board a luxury cruise ship as described in the Brochure. She carefully read the Brochure to decide what itinerary would suit her and which would be appropriate for her travelling companions as well. She was looking forward to seeing smaller towns and cities and exploring them at a leisurely pace. She also anticipated that she would be able to enjoy the views whilst cruising from the balcony on her cabin.
6. Because she was looking forward to the view, Ms Komiyama and her husband paid for an uplift in their cabin from the base cabin price.
7. The other matter which attracted Ms Komiyama's attention was the range of excursions set out in the itinerary. She was particularly looking forward to some of the excursions. One was to Rothenburg down what was described in the Brochure as the "romantic road". She was looking forward to a peaceful and relaxing excursion with beautiful scenery to a quaint town.

Cruise 5 - Mr Peter Edwards

1. Mr Edwards was at the time of Cruise 4 in his early 80s. He wished to travel by sitting in his cabin, relaxing and enjoying the scenery and sights from his cabin. He had, together with his wife, opted for a balcony suite. The balcony suite which he booked represented about a 35% uplift in the price of the base cabin.
2. By booking the Cruise, Mr Edwards felt he was treating himself and his wife "to a trip of a lifetime". He had retired about 15 years before the Cruise and had not taken an opportunity to go on a luxury holiday. Mr Edwards and his wife had not been to many of the places in Europe which the itinerary for Cruise 5 visited. And he thought, having regard to his age and years of hard work, that Cruise 5 would be a "fabulous opportunity" to relax. Although he had taken bus tours in the past, he thought that this Cruise would be a far more relaxing way to travel.
3. It took between four and six months for Mr Edwards to seek information about the Cruise and then make a booking. He compared the various cruise packages which were on offer and chose Cruise 5 with Scenic because it appeared to him to be of a higher quality than cruises offered by its competitors.
4. Because Mr Edwards and his wife were retired, the Cruise was an expensive purchase for them. Accordingly, he expected to experience a luxury standard of service and to experience the trip of a lifetime. As an older traveller, it was particularly important to Mr Edwards to be able unpack his bags once and stay in the same accommodation throughout the Cruise. For Mr Edwards, the purpose of the holiday was to relax and enjoy the beautiful scenery from his cabin.
5. As mentioned earlier, Mr Edwards opted for a balcony suite, and this was the particular feature of the Cruise that he was looking forward to the most. He expected to be able to enjoy the scenery from his balcony regardless of the weather and that he would be able to retire to his cabin at his own convenience whilst still experiencing the scenery.
6. He was looking forward to the Cruise which, as I have mentioned, was expensive for Mr Edwards. He thought it would validate all of the hard work that he had put in over the years of his working life.
7. It is to be recalled that after the first four days of the trip, Cruise 5 was significantly disrupted and required the passengers to change ships twice so that they were accommodated on three different ships.

Cruise 5 - Ms Elizabeth Targett

1. Mrs Targett decided she would travel on Cruise 5 with her friend, Mrs Field. She booked her place on Cruise 5 about 12 months before the Cruise commenced.
2. Although Mrs Targett had travelled with her late husband every few years, that travel had usually been to the United Kingdom or South Africa to visit their respective families. None of those overseas trips involved any holiday tour packages.
3. At the time she booked the Cruise, she had been relatively recently widowed. She decided she would spend some time in the United Kingdom visiting friends and family, and then take the Cruise.
4. Mrs Targett was looking forward to a luxurious experience, including luxury accommodation, food and drink, and a comfortable and convenient way to travel which would give her plenty of time to take in the river scenery. She saw the Cruise as a good way to make new friends and to socialise.
5. In particular as a consequence of her previous travel experiences, Mrs Targett knew that she wanted to avoid the responsibility and necessity of packing and unpacking things on a daily basis, of living out of a suitcase and, in particular, she wanted to avoid the struggle of having to move a suitcase from one place to another.
6. Her decision to take the Cruise was intertwined with her personal circumstances. She said this in her affidavit, which I accept: "28 In deciding to undertake the cruise, being able to escape from my everyday life and relax was my main objective, as I had lost my husband suddenly and unexpectedly two years before the cruise and I was still grieving. I was hoping that this cruise would be a turning point for me and that it would help me find my feet."
7. Mrs Targett chose the Cruise because she wanted to see one of Europe's great river systems in comfort and style. She had not been to most of the places which the Cruise proposed to visit and was generally looking forward to the entire experience.
8. The Cruise was an expensive purchase for Mrs Targett who had been retired for some time. She did not have a significant income, but she decided nevertheless to take the Cruise because she wanted to be "immersed in all-inclusive luxury experience, with high quality food and drink". She expected, having regard to the price she had paid, that she would have a special and memorable experience.

Cruise 5 - Mrs Barbara Wilkinson

1. Mrs Wilkinson travelled with her husband on Cruise 5. At the time of the Cruise she was retired, having previously been employed part-time as a secretary at a medical practice.
2. Mrs Wilkinson researched the Cruise she wished to take, and it took her about six months between commencing that research and booking the Cruise.
3. She found the proposed Cruise to be very appealing because of the idea that she could stay in premium accommodation on board a most luxurious cruise ship, spending her days either relaxing on board or else on educational excursions. She was particularly excited that the Cruise would visit Cologne as she had been born in Germany and had a cousin living there whom she had not seen for many years. They had made an arrangement to catch up for lunch.
4. Because she was retired, the Cruise was a very expensive purchase for Mrs Wilkinson. It was the most amount of money she had ever spent on a holiday. It required a lot of saving and budgeting. She did not think she would be able to repeat the experience.
5. Although Mrs Wilkinson had taken bus tours in the past, on this occasion she chose a cruise because she was attracted to the idea of having one place of accommodation and then cruising to other locations.
6. Due to a health condition, Mrs Wilkson found travelling on aircraft and buses for prolonged periods to be quite uncomfortable. That was why she picked this Cruise.
7. Mrs Wilkinson and her husband were both keen photographers and having looked through the Brochure, particularly the views which were portrayed from the cabins and private balconies, they decided to book a Panorama Balcony Suite which represented a 40% uplift over the cost of a base cabin on the Cruise.
8. It was particularly important for Mrs Wilkinson and her husband to enjoy good food and fine dining and a good selection of wine. She looked upon this holiday as a once in a lifetime experience.
9. The first few days on Cruise 5 proceeded in accordance with the itinerary, but after the ship departed from Vienna, the Cruise was interrupted. By the time 1 June came, the itinerary was disrupted in significant ways and except for the last day in Amsterdam, did not really resume as foreshadowed. Journeys to particular excursions were longer than they would have been had the Cruise continued; the docking locations in Krems and then Bamberg were industrial and extremely unattractive; the mood amongst the passengers was quite dour; and Mrs Wilkinson thought that the atmosphere was quite hostile as nothing was going to plan. She said that to her the trip was beginning to feel like a series of unpleasant surprises which made her feel anxious.

Cruise 6 - Mrs Gillian Arnott

1. Mrs Arnott and her late husband, Jeffrey, booked on this Cruise in about August 2012. They were accompanied by four friends. Two of their friends left the Cruise half-way through because of a family bereavement.
2. At the time of the Cruise, Mrs Arnott and her husband were both 63 years old. The late Mr Arnott was in remission from prostate cancer for which he had been receiving treatment for some years. Because of this health condition, it was particularly important for the late Mr Arnott to always be close to a bathroom. Prior to booking on Cruise 6, Mr and Mrs Arnott had undertaken a number of ocean cruises, including with Scenic. They had also previously experienced a number of bus tours. Mrs Arnott found them, whilst enjoyable, to be rather hectic and she was keen to avoid that by booking on Cruise 6.
3. Mrs Arnott did a good deal of research about undertaking a river cruise and was looking forward to the Cruise in particular because she and the late Mr Arnott had always been accustomed to enjoying recreational boating activities throughout their lives. Having done a hectic bus tour of a number of cities in Europe, Mrs Arnott thought that this particular trip would be one where she and her husband could relax and enjoy themselves with their travelling companions from the comfort of the cruise ship with the flexibility which it provided, particularly for the late Mr Arnott to come and go as he wished from his cabin and to be able to use the private toilet facilities in his cabin.
4. Mrs Arnott was also looking forward to being served, and enjoying, high quality food and drink and being able to share a social dining experience with her fellow travellers. In the past, on previous cruises, Mr and Mrs Arnott had particularly enjoyed mixing with their fellow travellers and meeting new people who had similar interests to theirs.
5. Mrs Arnott said, and I accept, this: "74 It was also important that this be a relaxing and luxurious holiday due to Jeffrey's prostate cancer. Although he was in remission, I considered that he was not likely to survive until he was 70. Prior to embarking on the cruise, I recall that Jeffery said to me that he thought it would be the last holiday he ever did. I wanted to ensure that any holiday we undertook following his prostate diagnosis would be a special experience."

Cruise 6 - Mrs Lorraine Bright

1. Mrs Bright, who worked as a part-time bookkeeper, travelled with her husband on Cruise 6.
2. She started discussing booking a river cruise about a year before she made the booking. Mrs Bright had not previously travelled overseas other than to America to accompany her previous husband on a business trip, about 25 years prior to Cruise 6.
3. At the time of booking the Cruise, Mr and Mrs Bright had been married for three years. They booked the Cruise as a delayed and luxurious honeymoon holiday which they both wanted to be special.
4. The Cruise was incorporated into a longer holiday with tours on either side of it which were not high‑end luxury trips. The budget of Mr and Mrs Bright could not extend to a luxurious holiday for the whole time they wished to be away. However, the Cruise was intended to be the luxurious centrepiece of their holiday.
5. Mrs Bright did a good deal of research, including talking to friends and attending a Scenic seminar prior to making the booking.
6. The Cruise was an extremely expensive purchase for Mr and Mrs Bright. They were not accustomed to purchasing high end goods and services but took the view that this was a special trip on which they ought to spend their money.
7. Mrs Bright had no prior knowledge of any of the towns which they anticipated visiting on the tour and was looking forward to Cruise 6 as being an entirely new experience for her sailing along the principal European rivers. She was expecting to have a unique experience, seeing the great sights of Europe from on board a relaxing ship. She was also looking forward to some of the excursions.
8. She said this in her affidavit, which I accept: "49 I wanted the cruise to be the beginning of a stream of memories with my husband and something we could look back on together. It was not a purchase that I took lightly however I wanted to spend the money so that we could create special memories together. I expected to have many wonderful memories of the cruising part of our European holiday. 50 … I considered that it would provide me with a very unique experience and one I would cherish in my memories. 51 I pictured myself sitting on top of the boat and on my balcony whilst cruising along the river and enjoying the peace and tranquillity of sailing past the scenery including the castles, hills and villages, as well as other cruise boats."

Cruise 6 - Mrs Dianne Butlin

1. Mrs Butlin travelled on Cruise 6 with her husband. They were both residents of Alberta, Canada, and travelled to Europe from Canada for a holiday which included the Cruise.
2. At the time of the Cruise, Mrs Butlin was retired. Prior to that she had worked continuously full-time for the Federal Government in Canada for 28 years. She had chosen to retire early so that she and her husband could do some travelling. That was a significant decision in her case. Her husband was, at the time of Cruise 6, suffering from multiple sclerosis and could no longer work due to his condition. Her husband is a tall man - 6'5". By the time of Cruise 6, and as a result of his health condition, he required either a walking aid or else an ankle/foot orthotic to help him walk. The walking aid was an electrical device that stimulated the nerves in his legs allowing his foot to swing and his toes to lift up when walking.
3. Mrs Butlin booked Cruise 6 with her husband, having researched river cruises for about nine months prior to that time. Mrs Butlin was not interested in ocean cruising, nor was she interested in undertaking a land tour by bus because long distance travel on buses causes her to feel discomfort and nausea. A bus trip was also not suitable for her husband because of his physical condition.
4. Such was her concern about the suitability of accommodation for her and her husband that she upgraded their accommodation category to a Junior Suite which represented an uplift premium of about 48% above the base cabin price.
5. The Cruise was a very expensive purchase for Mrs Butlin and her husband. They were both retired, they were humble and lived in a modest home.
6. Cruise 6 was to be their first European holiday and they were both looking forward to the range of countries and cities that they would see during the Cruise. After booking the Cruise, Mrs Butlin did a great deal of research into the regions through which the Cruise would pass and was very much looking forward to the itinerary of Cruise 6.
7. Mrs Butlin had read in the Brochure that she and her husband would be able to unpack their bags once and stay in the same accommodation for the duration of the Cruise. She said this in her affidavit, which I accept: "56 This was a key factor in deciding to undertake the cruise because it would remove the physical and mental burden of having to lug both my belongings and my husband's belongings to and from each destination. Notwithstanding that my husband is able to carry his own luggage, I observe that this is often difficult for him, and I thought that the ability to unpack once on the cruise would accommodate my husband's physical needs and lack of mobility. 57 It was important to me that the holiday could accommodate my husband's circumstances. I assessed that a river cruise would enable both of us to enjoy our trip. I thought that it would allow us to store his equipment once and not to have to worry about lugging it around to and from each destination. … 59 I was also looking forward to being able to retire to our room to enjoy the scenery as it would provide a space for both me and my husband to relax and unwind. I considered that by booking the Junior Suite with extra living space, my husband would be able to walk and move more freely throughout our cabin. I also booked the junior suite as it provided a larger balcony space. I was looking forward to watching the scenery and enjoying [it] from our private balcony."

Cruise 6 - Mr David Green

1. Mr Green, who had for many years been a member of the Australian Defence Force, was approaching retirement. He decided, with his wife Robyn, to use their accumulated savings to book their cruise as a retirement holiday to reward themselves for their years spent as members of the Defence Force.
2. Following a series of service-related injuries, Mr Green's mobility was deteriorating. He wanted to experience a holiday which was relaxing, without stress and as an entry into his retirement. As well, he and his wife were celebrating their 25th wedding anniversary.
3. Mr Green commenced researching the cruise about 12 months or so before making a booking. In particular, he wanted to visit places of historical significance - including Nuremburg, and wanted to be able to relax, unpack his bags once and stay in the same accommodation throughout the cruise.
4. Mr Green's evidence demonstrates that he had experienced a number of demanding and stressful postings throughout his service career, including to theatres of war and working on classified operations. In 2003, he suffered an injury affecting his back and spine. He had limited mobility at the time he went on the Cruise and was required to use a walking stick.
5. In particular, as a consequence of his service Mr Green was suffering from post-traumatic stress disorder ("PTSD"). This emphasised the need for him to have a relaxing cruise where he could unpack his bag once, be able to retire to his cabin as and when he felt the need, and to stay in stable accommodation. He was subject to anxiety attacks by reason of his PTSD. One of the features of this Cruise which attracted Mr Green and his wife was that because they were on a river cruise with an itinerary which was well chartered, that provided them with a sense of assurance in knowing the route that would be followed and the ports at which the cruise ship would stop.
6. Because of his background in the Defence Force, and his various studies and qualifications, Mr Green was particularly interested in a river cruise that would allow travel to some of the historical and military sites, such as Nuremburg, about which he had learnt.
7. Salzburg was another site of particular interest because of its military history and also its world heritage listing not only as the birthplace of Mozart, but for its unique and outstanding baroque architecture.

Cruise 7 - Mr Thomas Davis

1. Mr Davis booked on Cruise 7, on which he intended travelling with his wife, about a year before the Cruise was due to depart from Budapest to Amsterdam. He and his wife chose a Balcony Suite on a higher level of the cruise ship, which represented about at 35% uplift on the price of the base cabin.
2. Mr and Mrs Davis flew straight to Budapest, arriving two nights before the Cruise was due to depart and flew home from Amsterdam on the day the Cruise finished. This was their first trip to Europe and they flew for the sole purpose of undertaking Cruise 7.
3. At the time of the Cruise, Mr Davis and his wife had been the owners of a retail franchise in which Mr Davis was working part-time.
4. Mr Davis had significant mobility and health issues. His mobility issues related to his contraction of severe polio as a young 5-year-old. It affected the muscle strength of his right thigh and calf and made walking particularly difficult. It also meant that he walked quite slowly.
5. The possibility of going on Cruise 7 was first raised with Mr Davis and his wife by their friends, Mr and Mrs Townsend with whom they travelled, about four or five months before they made their booking. During that four-to-five-month period, Mr Davis did a good deal of research and he satisfied himself that the itinerary of Cruise 7 would enable them to have a relaxing holiday which represented a reward for the years of hard work in their business. Their travelling companions had booked on a seven-day bus tour leading up to the start of the Cruise and invited Mr and Mrs Davis to join them. Mr Davis and his wife declined because, with his physical limitations, Mr Davis had an aversion to climbing stairs and undertaking extended walking. They also thought that the bus trip would not be relaxing and that living out of a suitcase for the duration of a trip was not something they would enjoy.
6. Mr Davis booked a balcony suite on the top level of the ship which was more expensive by a significant margin than the base cabin price. He did so after consultation with his wife because they wanted to experience the full ambience of the scenery as they cruised along the rivers. Although Mr Davis regarded the Cruise as expensive, he felt that he could justify such expenditure because he anticipated receiving a premium service with high quality food and drink, and a luxurious cruise which would be comfortable and memorable.

Cruise 7 - Mrs Karen Martin

1. Mrs Martin travelled on Cruise 7 with her parents. She was in her early 50s and was working full-time as a pharmacy technician. She was a single mother who cared for her daughter who suffered from a psychiatric disorder. In preparation for the Cruise, she undertook three counselling sessions to support and validate her decision to take a holiday whilst leaving her daughter, who was then aged 21, at home. She saw the holiday as being an opportunity for respite from her role of caring for her daughter and as taking a break from the rigours of her daily life.
2. She had not travelled overseas with her parents as an adult and was looking forward to enjoying the trip with them as she thought it would be one of their last opportunities to travel together on a holiday.
3. In addition to hearing descriptions of a similar cruise from her sister, Mrs Martin researched the Cruise, including by accessing Scenic's website. Mrs Martin had an interest in history and was looking forward to experiencing the historical sites identified on the itinerary for Cruise 7. She was looking forward to something that was unique, special and luxurious. She was particularly looking forward to visiting Nuremberg and Regensburg having regard to their history.
4. The Cruise was a particularly expensive purchase for Mrs Martin and, in order to pay for it, she refinanced her home loan. It was particularly important to Mrs Martin that the Cruise was offered as an all-inclusive experience because she wanted to avoid the need to spend more than the amount she had budgeted for. Mrs Martin booked a 9-day bus tour prior to undertaking Cruise 7. Because of that, she was particularly looking forward to being able to unpack her bags for the whole of the time on Cruise 7 and not having to live out of a suitcase.
5. She said, and I accept, that the main reason for her to take the Cruise was: "47 … that I wanted to be away from my daily life. At the time of booking the cruise, I felt that nothing good was going on in my life. The trip was to be a respite from my everyday life. I wanted to come back relaxed and feeling like I had enjoyed myself. I wanted to have a positive experience that I could share with others."
6. She was also looking forward to being looked after and having a place of comfort throughout the trip to which she could retire when she wanted to. She booked a cabin with a private balcony so that she could sit back and enjoy the passing scenery whenever she needed to just spend some time on her own.

Cruise 7 - Mrs Barbara McArthur

1. Mrs McArthur booked a cabin on Cruise 7 about 12 months before the Cruise commenced. She was travelling with her husband and his sister and brother‑in‑law. The purpose of the Cruise was to celebrate her 60th birthday and her husband's recent retirement.
2. Mrs McArthur had a problem with her hip which caused her pain and reduced her mobility.
3. She had previously undertaken two ocean cruises and found that she liked the freedom on a cruise to do as much or as little as she wanted to each day. She found that she could moderate her pace, which meant that she did not over‑exert herself. She liked the leisurely pace of a cruise and the flexibility of it.
4. As she and her husband were relatively recently retired, they commenced to investigate and research taking a river cruise. She felt that at that stage, with her family grown up and she and her husband retired, they had the freedom to travel at their leisure.
5. She and her husband went through the Brochure looking at the various cruises which were on offer and chose to book a cabin on Cruise 7. She particularly noted from the Brochure: that the Cruise would provide a five-star standard of luxury with high quality service, including a butler to provide refreshments whenever desired; that the staterooms would contain private outdoor balconies with a spacious lounge with floor-to-ceiling windows to be able to watch the scenery as the rivers passed by; and that there would be multiple food options including fine dining with drinks included to experience whilst on the Cruise. In particular, the Cruise, she noted, was an all-inclusive price and that she would be experiencing an overall relaxing cruise with everything taken care of by the staff. She spent about 12 months researching and seeking information about various river cruises, including Cruise 7. She particularly wanted to make sure that the Cruise that was booked was suitable for her medical circumstances.
6. Mrs McArthur had never been to Europe before this Cruise and so she was looking forward to the opportunity to view the scenery along substantial distances of the rivers whilst relaxing on board the ship.
7. Mrs McArthur and her husband booked a Balcony Suite to enhance their enjoyment of the relaxing Cruise by use of a balcony at a higher level on the ship, which represented about a 26% uplift on the cost of a Basic Cabin.

Cruise 8 - Mrs Janice Robinson

1. Mrs Robinson booked her cabin on Cruise 8 to travel with her husband about 14 months before the Cruise commenced. Mr and Mrs Robinson were travelling with close friends, Mr and Mrs Atkinson.
2. They were residents of Quebec and travelled from there to Europe for the purpose of the Cruise. They spent one night in Amsterdam before the Cruise commenced and one night in Budapest after the Cruise concluded. Otherwise, they flew to and from Canada directly.
3. Mrs Robinson was retired at the time of the Cruise. She had worked full-time as a project director for 15-20 years and had undertaken project management on large scale projects with large enterprises. She was accustomed to managing large number of employees who were often spread through different countries throughout the world. Mr and Mrs Robinson had undertaken a number of ocean cruises prior to making their booking for Cruise 8. They particularly enjoyed cruising because they were able to unpack their bags once and stay in the same accommodation throughout the cruise. During their working lives, both Mr and Mrs Robinson had worked hard and had only limited time off. They had previously enjoyed undertaking expensive and luxurious ocean cruises to reward themselves for their hard work.
4. Although Mrs Robinson had experience of a bus tour when she was considerably younger, that was not an experience that she wished to repeat. Accordingly, at the time of booking Cruise 8, she wanted to experience a level relaxation and luxury on a river cruise and did not want to experience a bus trip.
5. Cruise 8 was the first big holiday that Mr and Mrs Robinson had taken after Mr Robinson's retirement in 2012. They wanted to celebrate that retirement and enjoy a luxurious trip together with their friends, Mr and Mrs Atkinson who lived in Scotland.
6. From reading the Brochure, Mrs Robinson was informed that Cruise 8 would take place on a new ship called the Scenic Jewel. She saw that the ship provided for balcony suites, one of which she booked. That was particularly important to her because her observation was that the cabins on river cruises were likely to be somewhat smaller than the cabins she had previously been accustomed to on ocean cruises.
7. She was particularly looking forward to exploring Vienna at her own pace by using a facility offered by Scenic on this tour of independent sight-seeing assisted by GPS-guided equipment.

Cruise 8 - Mr Andrew Whyman

1. Mr Whyman, who is a resident of Ontario, Canada, booked on Cruise 8 with his wife, Louise, in early June 2012. Mr Whyman was retired at the time he took the Cruise. He had worked full-time prior to his retirement in about 2010. For the purpose of his work as an engineer, he would often work on-site at various locations around the world. His wife retired in 2011.
2. Prior to undertaking Cruise 8, he had, with his wife, enjoyed a significant number of ocean cruises at different locations and with different companies. Mr Whyman and his wife particularly enjoyed undertaking ocean cruises because they enabled them to see new places and experience many different port locations without having to shift from one place of accommodation to another. He also enjoyed undertaking those cruises because he loved being on the water as a mode of travel and had been, from the time of his youth, accustomed to operating ships and sailing them throughout his life.
3. Mr Whyman had never holidayed in Europe prior to undertaking Cruise 8. He was looking forward to seeing the interior of Europe.
4. Whilst considering whether to book on a river cruise, Mr Whyman attended a presentation by Scenic in Ontario and obtained a Brochure. He recalled reading the Brochure and observing the presentation - which were both consistent, one with the other. He was also provided with a further brochure from Scenic Cruises entitled "What's new in 2013". He said that he observed in the course of the presentation that Scenic provided complimentary electric bikes throughout the Cruise, which was of particular interest to him as he considered it would allow him to explore places they were visiting at his own pace. From all of the information, he expected that the Cruise would be the ultimate cruise experience with first class service, comfortable meandering along the rivers, and unhurried excursions visiting the towns and people along the way. He expected that he and his wife would have to unpack only once and would stay on the same ship throughout the duration of the holiday.
5. Mr Whyman chose the itinerary for Cruise 8 because, from what he had read in the Brochure and consistently with what he had been told in the presentation, he thought that it presented a significant number of interesting places to visit along the way and a more comprehensive route along the principal rivers, the Rhine, the Main and the Danube. He also expected that he would enjoy cruising past castles and towns at a relaxed pace, able to take in the view. He also envisaged, from what he was told, that he would be able to visit towns along the way at his own pace.

Cruise 9 - Mr Raymond Houghton

1. Cruise 9 commenced in Budapest on 8 June 2013 and was conducted by Evergreen. Mr Houghton and his wife, who were both retired, booked a cabin on Cruise 9 about 12 months before it left. He planned to travel to Europe and spend some time in Austria visiting relatives before the Cruise and, also, to travel by road through the Czech Republic and Slovenia with his brother who lived in the United Kingdom.
2. He spent about six months or so researching and finding out as much information as he could about river cruising and the Cruise being offered by Evergreen before booking it.
3. Prior to this occasion, Mr Houghton had done a number of trips in Australia, New Zealand, the USA and Canada by bus. Whilst he found those trips enjoyable, because they were well planned and organised, he wanted to experience something different with river cruising and, in particular, he did not want the inconvenience of packing and unpacking on many occasions throughout the trip.
4. He selected the Cruise because it fitted in with his travel plans and, after having a busy week with relatives including his brother, he thought that it would be a good way to relax and unwind over a two-week period. Mr Houghton had not been to Budapest before and, accordingly, wanted to depart from there as a great way to start the Cruise and to set the tone for the rest of his holiday.
5. Mr and Mrs Houghton, in deciding to undertake the Cruise, had just finished a hectic year which included renovating their family home, and felt, particularly after a busy week of planned travelling with relatives immediately prior to the Cruise, that they wanted a trip that would enable them to relax, have new experiences and have a memorable luxurious holiday. As earlier noted, it was particularly important to Mr Houghton to be able to unpack his bags once and stay in the same accommodation.
6. As well, Mr Houghton expected to be able to sit on the balcony of his cabin or else on the top deck of the ship to watch the scenery, including castles, go by at a leisurely pace. Mr Houghton was looking forward to the freedom to choose what to do each day, whether it was retiring to his own private cabin to enjoy the scenery or socialising. He was expecting good dining experiences, lots of time to relax and that Evergreen would fulfil their promise of a high standard of service on a relaxing cruise.

Cruise 9 - Mr Martin Willems

1. Mr Willems was employed full-time as an IT administrator at the time he booked, together with his new partner, Ms Buchanan, on Cruise 9. Neither of them had ever taken a holiday like a river cruise in Europe before. Mr Willems had done some small number of trips to the United States for work but generally regarded himself as an inexperienced international traveller. Mr Willems and Ms Buchanan booked their Cruise about 12 months or so before Cruise 9 commenced. They did so after having spent a month or so examining all of the alternatives. Part of their reasoning for choosing Cruise 9 was that they wished to see and experience Europe from along the main rivers and also to visit the land of Mr Willems' birth. Ms Buchanan had previously suffered from deep vein thrombosis ("DVT") and did not want to risk a relapse of that condition by taking a bus tour around Europe. Accordingly, they determined that they would travel on a luxury river cruise with Evergreen and would fly to Europe in Business Class seats.
2. Mr Willems and Ms Buchanan booked a private Balcony Suite which represented and uplift of a little under 30% above the cost of a base cabin.
3. In addition to taking the Cruise whilst in Europe they planned to do some further travelling.
4. Prior to reaching Budapest, Mr Willems and Ms Buchanan had had exchanges with Evergreen staff about the likelihood of the Cruise going ahead. Whilst I am not assessing damages on the basis of what was said or promised by Evergreen in these exchanges, those exchanges are important as they record contemporaneously their feelings.
5. For example, on 6 June, which was 48 hours or so before the Cruise was scheduled to commence, in an exchange with a representative of Evergreen, who had told Mr Willems and Ms Buchanan that they needed to make their way to the Novotel Hotel in Budapest where they were booked in for two nights' accommodation, Mr Willems said: "46 … Is that the maximum amount of nights that we are going to be forced to stay in a hotel? We just want to get onto the ship. If we can cruise, we definitely do not want a bus tour. My partner has previously suffered from DVT and that is why we want a river cruise. …"
6. On the morning of 10 June, which was the third day of the Cruise, the passengers, including Mr Willems and Ms Buchanan, were transported by bus from Budapest to Vienna, stopping in Bratislava on the way. The trip took about 9½ hours not including the stop for lunch. Not all of the passengers on the Cruise could be accommodated on the ship in Vienna and some were accommodated in a hotel. The ship in Vienna was moored in an industrial area which gave off a pungent smell. The docking location in Vienna was a long way from the centre of Vienna and was not readily accessible because there was no public transport. After a couple of nights in Vienna, the passengers were transported by coach via Salzburg to Nuremberg. By the time they arrived in Nuremberg they had been on the bus for about 14 hours - which was most uncomfortable and distressing. Mr Willems and Ms Buchanan were particularly concerned about any possible exacerbation of Ms Buchanan's pre-existing DVT condition. Spending three nights in Nuremberg, Mr Willems and Ms Buchanan and the remaining passengers were then transferred to Bamberg by bus. This was again a very long trip.

Cruise 11 - Mr Phillip Hiscock

1. Mr Hiscock, at the time of the Cruise, was 63 years old and was employed full-time by the Government of South Australia as an IT support agent. Together with his wife, he booked a cabin on Cruise 11 about eight months before the Cruise took place. At the time they booked the Cruise, Mr and Mrs Hiscock had only previously travelled at an economy standard - whether they were travelling independently or on one occasion on an ocean cruise. On this occasion, they decided to book a river cruise which was more luxurious than their usual economy standard because they were both nearing retirement and wanted to treat themselves to such an experience. A river cruise in Europe had always been on Mr Hiscock's "bucket list".
2. Mr Hiscock researched cruises for a couple of months before booking Cruise 11. At the time of booking, Mr Hiscock thought the river Cruise was appealing because it would pass through a number of interesting destinations and would provide excellent scenery from the ship. He particularly wanted a 15-day Cruise which was longer than his previous cruise experience, so that he could unpack his bags once and forget about everything for the entire cruise. He expected, in light of what he had read in the Brochure, that he would feel very relaxed after 15 days of being on holiday.
3. In particular, they wanted to finish the Cruise in the Netherlands so that they could spend a week or so catching up with Mrs Hiscock's relatives.
4. For Mr Hiscock, the freedom to choose where to go and what to do on each day was very important. Based upon his previous travelling experience, he did not enjoy being tied to a clock and being required to follow a strict itinerary. However, in researching Cruise 11, he observed that there were a wide range of excursions being offered each day, and that he could decide to do as many or as few as he wished. He expected he would have lots of freedom of choice and movement to explore various things at his own pace. One of the particular features which had attracted him to this Cruise was the capacity to exercise a choice as to whether to go on excursions or stay on the ship and, as well, the choice to retire to the privacy of his cabin and not have to spend time in common areas all the time.
5. Whilst the Cruise was the most expensive holiday that Mr and Mrs Hiscock had ever undertaken, they made the decision to go on the Cruise based on the Brochure - including what was promised by way of high quality accommodation, food and drink, the promise of visiting so many places to which they had not previously been, and that it was an all-inclusive luxury holiday during which the passengers did not have to worry about anything at all.

Cruise 11 - Mr Hartmut Jesche

1. Mr Jesche booked on Cruise 11 with his wife Christa. They booked about seven to eight months prior to the date of departure of the Cruise.
2. After the Cruise, they spent over two months in Berlin visiting family and friends.
3. At the time of the Cruise, Mr Jesche was in his early 70s and was retired. Because he had been born in Germany and grew up there, he had a lot of family and old friends who lived in and around Berlin.
4. Mr and Mrs Jesche had travelled quite a lot during their time together. They had travelled around New Zealand for 21 days on a bus tour in 1990. Mr Jesche found the bus tour difficult because he and his wife were constantly surrounded by a large group of people without much time to relax on their own in privacy.
5. In Australia, they tended to holiday by using a caravan, travelling around Australia quite regularly. Mr Jesche enjoyed these holidays but found that they were tiring and certainly hard work.
6. By the time he came to book Cruise 11, he found that the adventurous kind of holiday was becoming harder to enjoy and he wanted to experience a more relaxed way of travelling. He had had two knee joint replacements, and that meant that moving around was a lot harder that it was when he was younger. Accordingly, he and his wife decided to book a river cruise with the objective of having a leisurely and relaxed holiday.
7. Mr Jesche and his wife were very fond of Vienna. They had visited it together on a number of occasions. They were very much looking forward to returning to Vienna in style and enjoying the city again. The itinerary of Cruise 11 was selected by Mr Jesche because he wanted to see the rest of the Danube River and expected that they would have plenty of time to explore the entire river system and enjoy it on the basis of a luxury river cruise of the kind set out in the Brochure. Mr Jesche was also looking forward to the variety of excursions which were offered. In particular, Cruise 11 was selected by Mr Jesche because it provided an opportunity to go and visit Salzburg. He had previously lived and worked close to Salzburg but had never been there. It was a place of real interest to him.
8. Mr Jesche said, and I accept, this: "37 The promise of luxury and relaxation was the whole point of taking this holiday instead of something cheaper or more adventurous. As such, having the opportunity to escape from my worries and relax on board the ship was an extremely important motivating factor for me in deciding to undertake the cruise. 38 I expected a luxury holiday with no worries and I expected to be able to enjoy cruising along the Danube, Main and Rhine Rivers with excursions being organised for me. 39 I also expected these experiences to be complimented with high quality food and drink … 40 In deciding to undertake the cruise, it was extremely important for me to be able to unpack my bags once and stay in the same accommodation throughout the cruise. This was particularly the case due to my knee replacements, which made it more difficult for me to be mobile. I particularly thought it would be difficult to frequently move my luggage around from one place to the next. 41 I also thought that due to my knee replacements, bus travel would be uncomfortable. I find that I need to stretch out in order to be comfortable and I thought I would be able to do this on the ship throughout the cruise."

Cruise 11 - Mr Robert Peattie

1. Mr Peattie, a self-funded retiree, commenced discussing with his wife the taking of a river cruise in 2012. Mr Peattie had some physical disabilities. He had chronic pain conditions in his knee, having had three knee replacements, and other orthopaedic surgery, as a result of being seriously injured in his one-time occupation as a police officer. His knee problems did not lend themselves to coach travel, particularly in his later years and it was for that reason particularly, that he and his wife thought they would explore a river cruise as an ideal way to see a variety of countries and cities and to avoid extended coach travel.
2. Because of his physical condition, Mr Peattie, together with his wife, closely examined the Brochure and the itinerary for Cruise 11 to try and anticipate how much coach travel was involved. He formed the view that if there was any more coach travel than that noted on the itinerary, he would have considerable difficulty in participating in the Cruise.
3. About a year prior to Cruise 11, around the time Mr Peattie was booking to go on Cruise 11, he and his wife undertook a coach tour with Scenic around the Northern Territory. For the places he wished to visit, there was no practical alternative to undertaking a coach tour. Although he completed that coach tour successfully, between that time and when he booked Cruise 11, his left knee had deteriorated, and he did not feel that he could manage any further coach tours.
4. He had previously undertaken a cruise along the Nile River in Egypt. Mr Peattie found the pace of the cruise to be very relaxing and particularly liked being able to decide "whether to undertake an excursion or simply relax on the ship, without being dragged from place to place without a choice".
5. The river Cruise was booked by Mr Peattie and his wife to celebrate his retirement from practising as a barrister in New South Wales. He had recently retired from his profession and wanted time as well to recuperate from knee surgery. Prior to commencing the Cruise, Mr Peattie and his wife spent some time motoring around Scotland and then flew to Prague for a tour of Prague before commencing Cruise 11 in Budapest.
6. On the day of departure from Prague for Budapest, Mr Peattie and his wife and other people following the same itinerary were told that Budapest was under water and instead of travelling there from Prague, they were going to be moved to Vienna by bus. The departure was said to be early the following morning. A bus was provided which was very basic, obviously uncomfortable and provided little leg room between the seats. A video taken by Mr Peattie of that trip showed that it was far from a comfortable bus trip. Rather than travelling to Vienna, after about eight hours of travelling by bus, Mr Peattie and his wife arrived at Krems in an industrial port to find the ship docked there. Krems is about an hour's drive from Vienna. There was no town near where the cruise ship was moored, there were no signs of shops or anything like Vienna. Mr Peattie described Krems as a heavy industry industrial port on the river. Whilst he found out later there was a township of Krems, it was a bus trip away from where the ship was docked, and there was no public transport.

Cruise 11 - Mrs Marilyn Shaw

1. Mrs Shaw and her husband, together with their friends, Mr and Mrs Martin, booked a cabin on Cruise 11, about 12 months before it departed.
2. At the time she booked on the Cruise, Mrs Shaw had retired from her work at a hospital in the field of dietetics and community health. Her work generally occupied those times when her children were at school or else on weekends when her husband could look after them.
3. Mrs Shaw had not been to Europe before and, accordingly, decided to look into booking a cruise along the rivers between Amsterdam and Budapest. Mrs Shaw was provided with the Scenic Brochure - which she took home and read carefully. Shortly after reading the Brochure, she and her husband booked on the Cruise. As a consequence of reading the Brochure, Mrs Shaw expected that the Cruise would be a full luxury experience with everything included from unlimited beverages to fine dining and all-day butler service. She thought that the Cruise sounded like the holiday of a lifetime which would allow her to become more and more relaxed with each passing day.
4. She selected Cruise 11 because she wanted to see the cities between Budapest and Amsterdam and wanted to experience cruising along the Danube River.
5. She was particularly interested in taking up the excursion to visit Salzburg which she knew to be the setting for "The Sound of Music". She saw this as being a real highlight of her trip. She was also looking forward to seeing Budapest and Vienna and also experiencing the river system itself. She was looking forward to learning all about the places along the river, discovering them herself so that she could have memorable experiences to last a lifetime that she could share with her family and friends.
6. Mrs Shaw noticed from the Brochure that she could book a luxury stateroom on a Scenic ship where she could unpack her bags once and stay in the same room through the Cruise without having to move one place of accommodation to another. This was quite important for Mrs Shaw because she and her husband had planned a bus tour after the Cruise and wanted to experience a fully relaxing cruise.
7. She said this, which I accept: "37 I really wanted to be able to escape and have continuous relaxation for the entire duration of the cruise, not just bits and pieces of it. It was rare for me to have this opportunity to have more than a day or a weekend off, so I wanted to make the most of it and I expected every day to be relaxing and enjoyable. This was an extremely important motivating factor because it was a trip that we had planned to celebrate my retirement and enjoy ourselves, after many years of hard work and commitment to our family."

Defence Relating to Reliance (s 61(3) of the ACL)

1. Section 61 of the ACL provides guarantees that services provided to a consumer will be reasonably fit for the purposes for which the services acquired by the consumer and also a guarantee that the services will be of such a nature and quality that they might reasonably be expected to achieve the result which the consumer wishes the services to achieve.
2. In my first judgment, I found that Scenic was in breach of these guarantees for each of the Cruises. These findings remained undisturbed by the appellate process.
3. The Court of Appeal's judgment also concluded that Scenic had been in breach of the due care and skill guarantees in respect of Cruises 4, 5, 6 and 7. However, those breaches are contrary to s 60 of the ACL, and the defence raised here based on s 61(3) of the ACL has no application to the due care and skill guarantee.
4. The scope of each guarantee is defined by the answers to common questions 5 and 6, which respectively record the "particular purpose" for which the services were acquired in this case and the "result'" they were expected to achieve. As noted earlier, these answers reflect the judgments of the proceedings at first instance, on appeal to the Court of Appeal, and on appeal to the High Court of Australia. The answers are: "A5: The group members impliedly made known to Scenic that they wished to enjoy an all-inclusive five star luxury river cruise experience with the additional services promised by Scenic. … A6: The group members impliedly made known that the result which they wished to receive was the services which Scenic assured them that they would receive in the Tour Brochure."
5. Both of these answers require an understanding of what the services were that Scenic was providing. The services were described in the answers to common questions 1 and 3 in this way: "A1: The services to be provided by Scenic to group members were the benefits and facilities of each cruise tour they booked and paid for (or had booked and paid for on their behalf) as described in Scenic's Tour Brochure. … A3: … The services extended to the provision of timely information about substantial disruptions to the respective itineraries known to Scenic or of which it ought to have known."
6. Section 61(3) of the ACL is in the following terms: "(3) 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."

Submissions

1. The parties proceeded to make submissions on s 61(3) of the ACL on the basis that it applied to both the purpose guarantee and the result guarantee. This approach seems to be consistent with the Court of Appeal's judgment in this matter. Neither of the parties, in their submissions, differentiated between the purpose guarantee and the result guarantee. Rather, their submissions applied to both guarantees. I accept that it may be possible in some cases for a defendant to make out a s 61(3) defence in respect of one of the consumer guarantees but not the other. However, in the factual circumstances in this case, such an approach would be illogical. Neither party urged it and, accordingly, the question is whether Scenic has made out the defence in respect of both the breaches of the purpose and result guarantees.
2. In its submissions, Scenic accepted that the time at which the Court should consider whether reliance existed is at the time of the booking of the Cruise and, further, that the fact that Scenic chose to go ahead with the Cruise at some point later in time is not relevant to the issue of reliance. In oral submissions, counsel for Scenic seemed to submit that reliance may occur at a later point in time. Ultimately, he submitted that the point in time one fixes upon for the purpose of reliance in the context of the defence under s 61(3) does not matter. He made that submission on the basis that in substance the s 61(3) defence comes down to the existence of a sphere of expertise of Scenic which did not in the circumstances here change from the date of booking to the date of embarkation, or the date of completion of the Cruises.
3. In my view, having regard to the terms of the legislation, the time at which reliance or non-reliance, or unreasonable reliance, is to be considered is at the time of the acquisition of the services. Here, that was at the time the booking was made which, in the cases I have considered, range between a period of about six months and 18 months before the Cruise commenced but was generally about 12 months.
4. Scenic submits that there was no actual reliance by the group members on Scenic because at the time the booking was made, group members either knew of the Terms and Conditions of the contract which were set out in the Brochure, or else ought reasonably to have known of them. The evidence demonstrates that some of the individual group members read the Terms and Conditions and others did not. There was no evidence as to there being any common understanding of what the Terms and Conditions meant.

Discernment

1. It is appropriate to observe that the statutory guarantees contained within s 61(1) and s 61(2) of the ACL are separate from, and stand apart from, the contract which a consumer enters into for the provision of services. It is a matter of fact in each case to determine if the services to be provided are co-extensive with the contract. So much is clear from the judgments of the High Court of Australia and the Court of Appeal in these proceedings.
2. The nature of the guarantee in each case is that it arises where a consumer, expressly or by implication, makes known to the supplier of the services being acquired either the purpose for which the services are being acquired or else the result that the consumer wishes to achieve.
3. In my view, on the facts demonstrated in this case, and in light of the previous findings, the plaintiff and group members have proved that they, at least by implication and in some cases expressly, made it known to Scenic that they were acquiring the services for the purpose described and, as well, the result which they wished to achieve. The answer to Q5 and Q6 of the Common Questions set out at [11] above make this clear.
4. Putting it in summary form, the purpose for which the group members acquired the services was to enjoy an all-inclusive five-star luxury river cruise experience with the additional services promised. The result that they made known was that they wished to receive the services that Scenic had assured them they would receive in the Brochure.
5. One then turns to the terms of the Brochure which is the basis of Scenic's submissions. The services which were to be provided were all to be provided by Scenic as part of an all-inclusive luxury package - the Brochure did not suggest that any other party or entity other than Scenic was providing the services. Scenic did not suggest that the passengers had any responsibility for providing any part of the services. On the contrary, the passengers were being enticed by the Brochure to do nothing other than to arrive at the port of embarkation and enjoy all that followed on their entirely unforgettable journey of a lifetime.
6. In the opening letter of welcome at the front of the Exh P8, the Scenic Brochure, consumers were invited by Mr Glen Moroney, the founder and Managing Director of Scenic, who did not give evidence in the proceedings, that it was his pleasure to invite them to join Scenic Tours for a once-in-a-lifetime cruise along the grand waterways of Europe. He went on to say the following: "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 '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. You will enjoy unlimited complimentary beverages and the services of a private butler. The on board experience is enhanced by our new personal GPS commentary device, Scenic Riverview and we also provide complimentary WiFi internet. … … Now when you sail on the Rhine, Main Danube Rivers, at a press of a button your balcony is enclosed by a sealed glass window to become an indoor lounge. Providing the most comfortable river cruising experience on the market no matter the weather. … … Scenic Tours is the leading operator of All-Inclusive and fully escorted luxury river cruising tours in Europe. This means we cover absolutely everything from airport transfers to tipping and gratuities, so you only need to plan for your personal expenses. You will truly appreciate the remarkable value and peace of mind that Scenic Tours offers. Our Tour Directors and Guides promise you impeccable hospitality and unforgettable experiences. We are a private, Australian-owned company and proud of the wonderful travel experiences we have shared with so many guests. …"

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

1. The group members claim an entitlement to damages pursuant to s 267(4) of the ACL in respect of the monies they paid for return airfares from their home countries to Europe so as to enable them to embark on the Cruise which they had booked. Scenic resists such a claim and says that it is inappropriate for the Court to award damages of this kind either to any individual group member or on some collective basis.
2. Section 267 is in the following terms: "4 The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such a loss or damages as a result of such a failure."
3. Section 267 makes it plain that damages pursuant to s 267(4) are in addition to damages pursuant to s 267(3) - being the subsection under which I considered damages for the reduction in value of the services actually provided.
4. The failure to comply with the purpose and result guarantees was found in my first judgment to be a "major failure" within the provisions of s 268(1)(a) of the ACL. At [774] of my first judgment, I said: "[774] However, s 268(1)(a) focusses not on a particular individual but on whether a 'reasonable consumer fully acquainted with the nature and extent of the failure' would not have acquired the services. This is an objective test. It incorporates questions of reasonableness. Such was the contrast between the description of the services to be provided by the Scenic and the services which were in fact supplied, including the failure of those supplied services to fulfil either the purpose or result guarantees, I am satisfied that no reasonable consumer would have gone ahead and acquired the services at the price which was being charged. … [778] Putting it differently, the reasonable consumer did not have to acquire the services because they were not essential; could have acquired the services from another supplier; could have acquired the services at another time; or finally, could have acquired alternative recreational services such as a holiday in a different location. Each of these available alternatives means that the reasonable consumer would not have gone ahead and acquired the services promised by Scenic had the reasonable consumer been acquainted with the failures of the consumer guarantees, in the circumstances which occurred."

Aggregation

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

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: 14 April 2022