The recent High Court decision in Moore v Scenic Tours is a timely reminder for businesses that consumers may be entitled to claim more than just a refund if they don't receive what they paid for. If you run a business that provides touring services and are not sure how COVID 19 has impacted your guests, you should consider talking to us about the following decision and how it impacts you.
Mr Moore booked a Scenic River Cruise which was to cruise along the Rhine, Main and Danube Rivers in Europe. Mr Moore chose the cruise as it was promoted as a "once in a lifetime cruise" where guests would be treated to an "all inclusive luxury". The cruise was impacted by adverse weather conditions and as a result, Mr Moore only spent 3 out of the 10 days cruising, he had to change vessels a number of times and spent a considerable amount of time travelling by bus, which he found difficult due to a previous spinal surgery. As a result, Mr Moore claimed that Scenic Tours breached the Consumer Guarantees in the Australian Consumer Law and claimed damages for disappointment and distress.
The Trial Judge found in Mr Moore's favour and awarded him $10,990 in compensation for loss of value and $2,000 for damages in disappointment and distress.
The decision was appealed and the NSWCA found that Mr Moore was not entitled to damages for disappointment and distress because the Civil Liability Act 2002 (NSW) (CLA), precludes damages for non-economic loss in personal injury cases unless the loss amounts to at least 15% of a most extreme case and Mr Moore's claim did not meet that threshold.
The High Court allowed the appeal and confirmed that damages for "disappointment and distress" do not constitute personal injury damages for non-economic loss and therefore the CLA did not apply.
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