Remedies case note - Case note on Moore v Scenic Tours [2020] PDF

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Case note on Moore v Scenic Tours [2020]...

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Case Note: Moore v Scenic Tours Pty Ltd [2020] HCA 17

Although the case of Moore v Scenic Tours [2020] has provided clarity within the area of personal injury claims, it has simultaneously broadened the scope in which these claims can be brought forth, which in turn has provoked the need for further legal clarification.1 The legal precedent surrounding remedies in personal injury claims historically have been ambiguous and a point of great controversy. The long awaited ruling of Moore v Scenic Tours has essentially opened the floodgates for consumers in class actions seeking remedies for disrupted recreational and leisure services, however it has simultaneously potentially opened up an array of opportunities for consumers seeking remedies in a broad spectrum of contract breaches. Through critically analysing the case of Moore v Scenic Tours Pty Ltd [2020] HCA 17 alongside the relevant precedent, this essay will analyse the potential for remedies to now be sort in contractual breaches outside of holiday contracts and contractual breaches that 2

. occur extra-territorially

Factual outline The Plaintiff (Mr Moore) was a passenger on a cruise ship holiday tour who booked "a once in a lifetime cruise along the grand waterways of Europe”, which due to unprecedented circumstances was heavily disrupted and altered by the tour operator (Scenic Tours).3 Mr Moore specifically booked with Scenic Tours as he had pre-exisiting medical issues with his back that limited his mobility and Scenic advertised their tours as relaxing, not entailing any 1 Moore v Scenic Tours Pty Ltd [2017] NSWSC 733. 2 Ibid. 3 Ibid.

excessive and arduous travel movements. The disruptions to the tour not only completely changed the structure of the tour, but further aggravated Mr Moores back condition. As a result a class action was launched against Scenic tours on behalf of 1500 passengers, with Mr Moore representing the lead Plaintiff claiming compensation for reduction of value under s 267(3) and damages for loss under s 267(4) of the Competition and Consumer Act 2010 4

.((ACL

Procedural outline In the first instance Justice Garling held that Scenic Tours were in direct breach of Consumer Guarantees under the Competition and Consumer Act 2010 s 60, 61(1) and 61(2) awarding Mr Moore $10,900 (plus interest) as compensation for loss of value pursuant to s 267(3).5 Mr Moore further relied upon the case of Baltic Shipping Co v Dillon (1993) which established that non-economic loss damages, for disappointment or distress are valid where a contractor has breached a holiday contract which promised to provide pleasure and 6

.relaxation

However Scenic relied upon the case of Flight Centre Ltd v Low [2011]7 and Insight Vacations Pty Ltd v Young [2010]8 to argue that mr Moore’s claims of ‘distress and disappointment’ should be assessed under s 16 of the Civil Liability Act 2002 (CLA).9 Both cases stipulate that the notion of ‘distress and disappointment’ are deemed a ‘injury’ as outlined under s 11 of the CLA. Scenic claimed that for the compensation to be awarded, damages for ‘distress and 4 Ibid. 5 Competition and Consumer Act 2010 (Cth) s 60, 61(1) and 61(2). 6 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 7 Flight Centre Ltd v Low [2011] NSWSC 132. 8 Insight Vacations Pty Ltd v Young [2010] NSWCA 137. 9 Civil Liability Act 2002 (Cth) s 16.

disappointment’ would need to constitute personal injury damages in alignment with Part 2 of the CLA. Justice Garling concluded that the reasoning in Flight Centre Ltd v Low [2011] should be followed, thus if s 16 were to apply it would be clear that Mr Moore had not meet the minimum 15% value loss threshold. Despite this it was held that s 16 of the CLA did not apply as its 10

. scope did not have extra-territorial application

However upon appeal, the Supreme Court upheld the trial judges ruling that Scenic had breached s 61(1) and s 61(2), however it was concluded that Scenic Tours did not breach s60 of the Competition and Consumer Act.11 In addition to this the appeal also overturned the award for damages of disappointment and distress as it was established that s 16 of the CLA was not limited . geographically to NSW, so long as the loss was claimed in a NSW court

; Mr Moore appealed to the high court upon three grounds Whether or not the function of s275 of the CLA was to ensure that s16 of

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the CLA was picked up and applied to quantify the amount of damages 12

? awarded in a personal injury claim

To determine whether or not damages for disappointment and distress are

.2

13

. classed as personal injury damages for non-economic loss

Is s16 applicable to damages that were suffered outside of the jurisdiction of ?NSW The High Court concluded that there was nothing in the legislative text or legislative history that would suggest s275 of the CLA should be limited not not 10 Moore v Scenic Tours Pty Ltd [2020] HCA 17. 11 Competition and Consumer Act 2010 (Cth) s 60, 61(1), 61(2). 12 Civil Liability Act 2002 (Cth) s 16, s 275. 13 Moore v Scenic Tours Pty Ltd [2020] HCA 17.

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encapsulate s16. Thus s275 of the CLA would apply s16 of the CLA to a claimant seeking personal injury damages, meaning Moore would not be enticed to personal injury damages unless the loss exceeded 15%.14 However the High court also determined that damages for disappointment and distress could are not classed as personal injury damages. The High Court ruled that a “promise to provide recreation, relaxation and peace of mind is not an “impairment” of the mind…” thus it is a loss separate from injured feelings.15 It was established that a claim for disappointment and distress where the loss is distinguishable from personal injury, is not non-economic loss under Pt 2 CLA . but rather a breach of contract, to which Moore was entitled to damages for Finally the High court noted that the issue pertaining to whether or not s16 of the CLA was able to be applied extra-territorially has not been officially considered or resolved as prior rulings upon the matter were dismissed as an .err

:Legal analysis In light of the High Courts ruling in Moore, consumers now have potential legal grounds to seek remedies in holiday contracts. However it is important to note that when lodging a claim of this nature, plaintiffs should carefully consider which aspects they should include in their claim. The High Court’s ruling recognised that claim for disappointment and distress of holiday contracts will be subsumed into a claim of economic loss if that claim is brought about from a personal injury. Thus by way of s275 of the CLA, s16 will also apply to damages awarded, meaning the plaintiff is required to show that the loss arising from the 14 Civil Liability Act 2002 (Cth) s 16, s 275. 15 Moore v Scenic Tours Pty Ltd [2020] HCA 17.

personal injury exceeds 15%.16 Thus when seeking damages for disappointment and distress it would be more beneficial for plaintiffs to claim Baltic Shipping damages as opposed to damages relating to personal injury.17 This also allows for plaintiffs simultaneously seek to recovery of personal injury 18

. damages, so long as it is able to be severalty distinguished form the facts

The case of Moore v Scenic Tours has potentially given rise to an array of alternative avenues and opportunities for consumer claims, particularly in relation to holiday contracts.19 It is clear that the High Court has concluded that the CLA does not in any way limit a claimant from seeking damages, it only places limits upon damages arising from a claim of ‘personal injury’. Thus, as also found in the Baltic Shipping Co v Dillon case, claimants seeking remedies for disappointment or distress arising form a breach of contract where “…the very object of the contract has been to provide pleasure, relaxation or freedom from molestation…” are entitled to those damages under a breach of contract.20 Although this ruling clarifies the misconceptions surrounding damages for disappointment or distress in holiday contract bookings, it also opens up the possibility for other claims to be made where the very object of a contract was to provide pleasure, relaxation or freedom from molestation. For example the prior precedent surrounding damages for disappointment and distress was found in the case of Heywood v Wellers, where damages were awarded images for disappointment and distress as a solicitor failed to obtain an injunction in due time to prevent the client from molestation.21 This case 16 Civil Liability Act 2002 (Cth) s 16, s 275. 17 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 18 Moore v Scenic Tours Pty Ltd [2020] HCA 17. 19 Ibid. 20 Baltic Shipping Co v Dillon (1993) 176 CLR 344. 21 Heywood v Wellers [1976] 1 QB 446.

highlights the possibility for contractual claims for distress and disappointment damages to be expanded and claimed in an array of scenarios outside of merely holiday contracts. Although the case of Moore v Scenic Tours has clarified and narrowed down the circumstances on which distress and disappointment damages can be awarded, it has in turn potentially opened the floodgates. Essentially what both Moore and Heywood confirmed was that so long as ones claim for disappointment and distress relates to a breach of contract where the very object was to “…provide pleasure, relaxation or . freedom from molestation…” then damages can be sort

In addition the High Courts ruling also leaves open the question as to whether or not the Civil Liability Act is able to be applied extra-territorially. Considering the case of Insight Vacations Pty Ltd v Young it is likely that the CLA would apply extraterritorially as New South Wales would be the lex causae (the applicable law) as it is the lex loci delicti (law of the place in which the tort was 22

.(committed

Ultimately the case of Moore v Scenic Tours has provided leverage for consumers seeking damages for disappointment and distress in not only holiday contacts, but more broadly any contract where the object is to provide pleasure, relaxation or freedom from molestation.23 However the extent to which damages for disappointment and distress may be sought requires further . clarification by the High Court

22 Insight Vacations Pty Ltd v Young [2010] NSWCA 137. 23 Moore v Scenic Tours Pty Ltd [2020] HCA 17.

Bibliography A: Articles / Books / Reports N/A

B Legislation Competition and Consumer Act 2010 (Cth). Civil Liability Act 2002 (Cth).

C Treaties N/A

D Other Baltic Shipping Co v Dillon (1993) 176 CLR 344. Flight Centre Ltd v Low [2011] NSWSC 132. Heywood v Wellers [1976] 1 QB 446. Insight Vacations Pty Ltd v Young [2010] NSWCA 137. Moore v Scenic Tours Pty Ltd [2020] HCA 17....