Is there a claim for damages for disappointment and distress?.
Consumers who suffer distress and disappointment due to tourism providers and holiday package operators failing to deliver on their contractual promises to supply pleasure and relaxation could soon face more claims following the decision of the Moore v Scenic Tours Pty Ltd  HCA 17 (24 April 2020) – http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/17.html
Mr Moore and his wife brought an action against Scenic Tours following a disappointing trip to Europe in 2013. They had taken their life savings and been enticed by the promise of Scenic Tours to deliver ‘a once in a lifetime cruise along the grand waterways of Europe’. The tour was to commence in Paris on 31 May 2012, then leave from Amsterdam on the ‘Scenic Jewel’ to cruise down the Rhine, Main and Danube Rivers for ten days until arriving in Budapest. Unfortunately due to adverse weather conditions and high river levels, the cruise of a lifetime was replaced by buses with Mr Moore and his wife enjoying only 3 days of cruising and those 3 days were on a different vessel to the promised ‘Scenic Jewel’.
Mr Moore and 1500 other passengers of Scenic Tours brought a class action against the tour operators alleging that they had failed to exercise due care and skill in supply of the tour and breached guarantees to the passengers under Australian Consumer Law. The unhappy passengers argued that the tour was unfit for purpose and that the tour operators should have known about the likelihood of bad weather disrupting the tour. Mr Moore, his wife and the other group members claimed compensation for damages and distress. Mr Moore argued that the contract that he had with Scenic Tours was designed to provide him with enjoyment, relaxation, pleasure and entertainment and that Scenic Tours had failed to deliver on their end of the bargain.
The tour operators argued that the claim was subject to caps for personal injury damages for non-economic loss in the Civil Liability Act 2002 (NSW) which precludes recovery for damages for non-economic loss unless a case is at least 15% of the most extreme case.
The trial judge Garling J held that whilst the claim was brought under the federal Australian Consumer Law, that the provisions in the Civil Liability Act applied and that a claim for damages for disappointment and distress was a claim for damages that related to a personal injury. His Honour found that because the breach and loss was incurred in Europe that the Civil Liability Act did not apply. Mr Moore was awarded by the trial judge $2,000 for damages for disappointment and distress and $10,990 for loss of value plus interest.
The Court of Appeal set aside the award of damages for disappointment and distress and agreed with Scenic Tours that the Civil Liability Act did apply to limit the award of damages for disappointment and distress if not meeting the threshold of 15% of the most extreme case.
The High Court has now held that the Civil Liability Act did apply but that the disappointment and distress caused by Scenic Tours breaching their contractual promise to Mr Moore to provide a pleasurable and relaxing experience was not a consequence of physical or psychiatric injury and therefore not a personal injury. Mr Moore had not alleged that he suffered physical injury or psychiatric injury and therefore the High Court allowed the appeal. The High Court reinstated the award of $2,000 in damages for disappointment and distress based on common law principles.
Following this decision, there could well be an influx of claims for disappointment and distress following the recent disruptions to tourism and travel internationally due to the COVID-19 public health crisis.
Amelia Cox, Compensation Lawyer of Leading Law Firm, Brazel Moore Lawyers is committed to helping clients cost-effectively learn what their options are. Call our expert Lawyers specialising in Compensation on 4324 7699 and let us put you on the right track.