Holidays from Hell
01 Sep 2017
Moore v Scenic Tours Pty Limited (No.2)  NSWSC 733
Have you ever seen those ads for European river cruises, promising a relaxing saunter past scenic hills and castles, surrounded by charming and well-groomed baby boomers? For one group of travellers, whose class action was recently heard in the NSW Supreme Court, this holiday of a lifetime turned into a holiday from hell.
In the case, Mr Moore, the lead litigant, booked a river cruise with his wife from Amsterdam to Budapest with the company Scenic Tours. Scenic Tours’ brochure claimed their journey would be ‘truly unforgettable’. However, as Justice Peter Garling said in his judgment:
“His journey was, on the contrary, one which he would rather forget”.
Due to high water levels, most of the cruise was cancelled. Instead of the dream river cruise, the passengers were treated to a nightmare of long coach trips to their destinations, and transfers from ship to ship. On one occasion, Mr Moore and the other passengers were stuck on a coach all day (with a 1 hr break) as it travelled between Koblenz to Bamburg in Germany. The coach didn’t have air conditioning or a functioning toilet, and when the coach arrived at Bamburg, the passengers had to walk up a steep hill in the rain to get to the ship, which was docked in an ‘abandoned and somewhat desolate industrial area’.
Once he returned to Australia, Mr Moore started a class action against Scenic Tours in the Supreme Court of NSW. He claimed that Scenic had breached the Australian Consumer Law (ACL) in the following ways:
- The guarantee that services would be rendered with due care and skill (s 60 ACL)
- The guarantee that services would be ‘fit for purpose’ (s 61(1) ACL)
- The guarantee that services would be rendered in such a way as to achieve their ‘desired result’ (s61(2) ACL)
According to Mr Moore, although Scenic Tours couldn’t control the water levels, they should have notified the passengers earlier and given them the opportunity to reschedule or cancel their trips.
In their defence, Scenic Tours relied in part on the terms and conditions in the contract that Mr Moore had signed. These terms allowed Scenic Tours to substitute part or all of the cruise journey for a coach journey. The terms and conditions were contained in a document that was more than 200 pages long, and Mr Moore admitted he did not read them before signing the contract.
In a lengthy judgment, Justice Peter Garling ultimately found in favour of Mr Moore. He found that despite the terms and conditions, Scenic Tours had breached the ACL and was ordered to pay damages and compensation of $12,990 plus interest.
This case is an interesting example of how a company’s terms and conditions can be over-ruled by the Australian Consumer Law.
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