In brief - Cruise ship operators should consider the High Court's decision in the Scenic Tours class action, particularly in light of risks posed by COVID-19

This is an update on our February 2020 article about this case: Scenic Tours class action - High Court hears appeal.

The High Court has today unanimously allowed the appeal from the NSW Court of Appeal. 

The Court held that section 16 of the Civil Liability Act (NSW), (which limits the amount of non- economic loss damages that can be awarded in personal injuries claims, unless the non- economic loss is at least 15% of the most extreme case) did not apply to preclude Mr Moore from recovering damages for loss of enjoyment, stress and disappointment of the cruise. 

The Court held that damages for loss not consequential on physical or psychiatric injury are not covered by section 16. The Court did not find it necessary to consider whether section 16 applied to loss suffered outside NSW, the basis on which the first instance Judge had found that section 16 did not apply to Mr Moore. 

The case has been remitted to the first instance Judge to determine whether members of the group, on behalf of whom the proceedings were commenced, may also recover damages for disappointment and distress.

In endorsing the earlier decision of the High Court, which preceded the Civil Liability Act, (Baltic Shipping v Dillon (1993) 176 CLR 344) arising from the sinking of the "Mikhail Lermontov" the plurality of six (of the seven) Justices who wrote the leading judgment said: 

every member of the Court accepted that a claim for disappointment and distress "caused by the breach of a contract…the object of the contract being to provide pleasure and relaxation" is a compensable head of loss separate and distinct from injured feelings compensable under the rubric of pain and suffering and loss of amenities of life associated with personal injury. 

This decision will have considerable relevance in relation to the quantum of damages possibly available against cruise ship operators where proceedings are brought by passengers, either individually or through threatened class actions, by reason of the present coronavirus pandemic.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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