The judgment

Mr Justice Garling delivered judgment on 31 August 2017. Click here to view a copy.

On 13 November 2017, His Honour delivered a further judgment, in which he set out detailed findings relating to Scenic’s breach of its obligations to its passengers.Click here to view a copy.

 

Judgment summary

The proceedings are in the name of one person only, David Moore. However, in deciding Mr Moore’s claim, the court made findings which are binding on Scenic in favour of the members of the class. These include findings that Scenic breached the obligations imposed under the Australian Consumer Law in respect of all of the cruises in the table below, except cruises 10 and 12.

The Australian Consumer Law provides guarantees to consumers, regardless of the terms and conditions in the supplier’s contract. In this case, we were relying on the following guarantees.

  1. The Purpose Guarantee. The Court found that the purpose of booking with Scenic was “to enjoy an all-inclusive five-star luxury river cruise experience with all of the additional services promised by Scenic”. By failing to provide that experience, Scenic breached the Purpose Guarantee.
  2. The Result Guarantee. This is a guarantee that, if a consumer makes known to a supplier the result they wish to achieve, there is a guarantee of obtaining that result. Again, Scenic’s failure to provide the promised luxury river cruise experience was a breach of the Result Guarantee.
  3. The Due Care and Skill Guarantee. This is a guarantee that services will be provided to consumers with care and skill. The court found that Scenic breached this guarantee by failing to provide information relating to likely disruption to cruises, and failing to cancel cruises when it was obvious that they would be substantially disrupted.

The table below shows how these findings related to each cruise.

Damages

The judgment awarded damages in favour of Mr Moore representing the whole of the amount he paid for the cruise, plus further damages of $2000.

This does not determine the amount of damages to which the other class members are entitled. However, it gives a good basis for claiming a refund of the fares paid, and a further sum representing damages “for distress and disappointment”. In his judgment, His Honour referred to three other cases where courts had awarded damages for “distress and disappointment” for ruined holidays. In all three of these cases, the damages awarded were approximately double the cost of the amount paid for the holiday. However, each claim depends on its own facts. At this stage, the court does not have sufficient information to award damages for anyone but Mr Moore.

The next important step is to present to the court the evidence and submissions to enable the court to determine the damages to which you and the other class members are entitled.

How the judgment applies to each cruise

Cruise Number

Departure Date

Route

Court finding as to breaches by Scenic

1.

19 May 2013

Saone/Rhone Rivers, France

Breach of the Purpose, Result and Care and Skill Guarantees

2.

20 May 2013

Budapest to Amsterdam

Breach of the Purpose and Result Guarantees

3.

25 May 2013

Amsterdam to Budapest

Breach of the Purpose and Result Guarantees

4.

27 May 2013

Amsterdam to Budapest

Breach of the Purpose, Result and Care and Skill Guarantees

5.

27 May 2013

Budapest to Amsterdam

Breach of the Purpose, Result and Care and Skill Guarantees

6.

29 May 2013

Amsterdam to Budapest

Breach of the Purpose, Result and Care and Skill Guarantees

7.

29 May 2013

Budapest to Amsterdam

Breach of the Purpose, Result and Care and Skill Guarantees

8.

3 June 2013

Amsterdam to Budapest

Breach of the Purpose, Result and Care and Skill Guarantees

9.

8 June 2013

Budapest to Amsterdam

Breach of the Purpose, Result and Care and Skill Guarantees

10.

10 June 2013

Amsterdam to Budapest

No breach

11.

10 June 2013

Budapest to Amsterdam

Breach of the Purpose, Result and Care and Skill Guarantees

12.

12 June 2013

Amsterdam to Budapest

No breach

13.

12 June 2013

Budapest to Amsterdam

Breach of the Care and Skill Guarantee

 

Click here to claim compensation and damages

 

 

 

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