Disappointing holiday? Now you can sue for it

A recent cruise ship holiday turned bus ride has resulted in a significant legal decision that a person can seek compensation for distress and disappointment resulting from a bad holiday.

Prior to the case it had long been considered Australian law that a person could not sue another for disappointment or distress from a physical injury resulting from the other’s breach of contract. But now the floodgates could open against companies that provide entertainment services that don’t live up to expectations.

The case, Moore v Scenic Tours Pty Ltd, involved a weather disrupted European river cruise. Mr Moore, who took the case to the High Court, was promised a luxurious “once in a lifetime cruise along the grand waterways of Europe.” Moore, who was unable to sit for long periods due to a spinal issue, wanted a cruise that he did not have to unpack his luggage multiple times. He spent his life savings on the cruise.

When the cruise commenced, adverse weather and flooding saw Scenic Tours put passengers on buses for most of the holiday. Moore only cruised on a ship for 3 days. Compounding this, the ship was different to the luxurious ship Moore was promised. Moore said that Scenic knew of the weather issues in advance and did not offer a refund or give passengers the chance to claim a refund.

Following the cruise, Moore claimed that Scenic had not provided its cruise service with due care and skill, or in a way that was fit for his purpose - a pleasant and enjoyable holiday. Scenic had legal obligations provide this to Moore under the Australian Consumer Law.

Moore claimed compensation for loss of enjoyment and disappointment he suffered. And while the cruise operated outside of Australia, the legal obligations under the Australian Consumer Law still applied.

Scenic disputed Moore’s claim on technical legal grounds. It argued that the disappointment and distress was a form of ‘personal injury’ and that Moore did not suffer enough disappointment and distress to meet the required legal threshold.

But none of this mattered. The High Court unanimously decided that the disappointment and distress caused by the cruise ship turned bus ride was not a personal injury. The High Court accepted Moore’s argument that disappointment at a breach of contract was not a form of impairment of Mr Moore’s personal or mental condition. Rather, it was a normal reaction of an unimpaired mind that was not associated with any physical injury.

The case is a watermark legal decision for the tourism industry. It opens the door for people to claim forms of compensation for emotional suffering if expectations regarding holidays or events are not lived up to.

While the case considered NSW personal injury law, it is likely to apply to other states and territories.

Businesses that provide entertainment or tourism services now need to closely consider whether they continue to provide services when there is a real chance that they won’t live up to expectations; or face an extra form of compensation claim.

Lachlan Edwards is an experienced business lawyer with a background in consumer, insurance, banking and finance law. You can call Lachlan on 0427 916 442.