Disappointment is a damage worth suing for, after a High Court ruling today allowed a New South Wales man to appeal after his luxury cruise turned into a bus tour.
The court has upheld an appeal by a man who wanted compensation after his Scenic Tours European River Cruise was disrupted by flooding on the Danube in 2013.
Former NSW teacher David Moore and his wife spent their life savings of $18,000 on the 10-day cruise.
But their dream of unpacking once, relaxing and enjoying the attractions while on a luxury cruise through Europe, was upended when the trip turned into a bus tour.
“The ability to travel without the restriction of confined spaces was of significance to [Mr] Moore, who had previously undergone spinal surgery and found it difficult to spend extended periods sitting down,” submissions to the High Court by Mr Moore’s lawyers said.
“He paid in full for the tour 12 months before departure with his life savings.”
Mr Moore decided to sue, not for a refund but because of his disappointment.
Today the High Court agreed with him, saying it was a breach of contract to fail to provide a “pleasurable and relaxing holiday”, and that he was eligible to claim compensation for that.
The case had been bogged in legal detail about what should justify the right to claim damages over disappointment.
Part of that argument was the suggestion that Mr Moore could not make a damages claim when it was not dependent on physical or psychiatric injury.
But the court found it did not preclude his claim, finding disappointment was directly related to the breach of contract.
Scenic Tours has been ordered to pay costs in the case.
Court ruling could impact other customers
The finding by the High Court could now become a precedent.
Mr Moore’s case is part of a wider case involving 1,500 others whose holidays were disrupted on a variety of other cruises run by Scenic Tours.
In an initial verdict regarding the 2013 tour season, the tour company had argued that customers were informed of the possibilities of disruptions to the tour caused by weather events.
Scenic Tours said each of the members in the class action signed a contract in which they accepted its terms and conditions.
The contract stated that “cruise itineraries may be varied due to high or low water levels, flooding … [and] circumstances beyond our control”.
But Justice Peter Garling found Scenic Tours breached Australian consumer law by not informing passengers about the weather disruptions.
He said the company “played down the significance of what was occurring on the rivers in Europe”, thereby concealing the company’s “internal position that it would offer a full refund for guests on the identified cruises if requested”.
Mr Moore was awarded $2,000 compensation in that case, which he lost in an appeal, only to have that overthrown today by the High Court.
What is new about the challenge is that Mr Moore has claimed extra damages for the distress and disappointment caused by the company’s failure to provide the service he was expecting.
Many fellow Scenic Tours travellers have no doubt been watching carefully to see if they too are in line to claim for distress and disappointment for a holiday.