Moore v Scenic Tours Pty Ltd (No.4)

In a Fourth Further Amended Statement of Claim, which was ultimately filed in this Court on 6 March 2020, the plaintiff, David Moore, brings a representative action, claiming compensation and damages arising out of a European river cruise that he and his wife took during June 2013.

Mr Moore claims against Scenic Tours Pty Ltd (“Scenic”) that, with respect to 13 identified Cruises which travelled from Amsterdam to Budapest along the Rhine River, the Main River, the Main/Danube Canal and the Danube River (or else in the reverse direction), contrary to consumer guarantees, Scenic did not provide a “once in a lifetime cruise along the grand waterways of Europe” where he and his fellow group members would be immersed in all-inclusive luxury and that they would have a “truly unforgettable journey”.

Mr Moore and 31 group members seek an assessment by the Court of the damages to which they are entitled.

In a decision delivered on 31 August 2017, Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 (“my first judgment”), I held that Mr Moore was entitled to succeed against Scenic, and was entitled to damages by way of compensation for the reduction in value in the services which he received, below the price paid for those services, pursuant to s 267(3) of Sch 2 of the Competition and Consumer Act 2010 (Cth) – The Australian Consumer Law (“ACL”) and for disappointment pursuant to s 267(4) of the ACL. As well, I ordered that he receive interest on the sums which I assessed.

On 24 October 2018, the Court of Appeal delivered a judgment in the matter: Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456 (“the Court of Appeal’s judgment”). The Court of Appeal found that Mr Moore and the group members were precluded by s 275 of the ACL and s 16 of the Civil Liability Act 2002 (“the CLA”) from claiming damages for distress and disappointment. The Court of Appeal also held that in assessing the value of the services provided to the plaintiff or the group members, which are to be reduced by Scenic’s failure to comply with the consumer guarantees, the assessment is required to take place by reference to objective, rather than subjective, considerations.

There were other findings as well, which were encapsulated in answers to the common questions which will be referred to later.

Following a grant of special leave, Mr Moore appealed to the High Court of Australia.

On 24 April 2020, the High Court allowed the appeal by Mr Moore: Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“the High Court’s judgment”).

The High Court held that Mr Moore and the group members were entitled to damages for distress and disappointment pursuant to s 267(4) of the ACL and that s 16 of the CLA does not affect Scenic’s liability to Mr Moore in respect of his claim for damages for disappointment and distress.

At the hearing of the proceedings initially, in addition to deciding the plaintiff’s claim, the Court was asked to, and answered, identified questions which were common between the plaintiff’s claim and the claims of other group members.

Ultimately, after the High Court of Australia delivered its judgment, the parties agreed on the common questions and answers which reflected my first judgment, the Court of Appeal’s judgment, and the High Court’s judgment. Those agreed common questions and answers are as follows:

On 31 July 2020, Mr Moore filed a Notice of Motion seeking a range of relief with respect to damages.

Relevantly, that Notice of Motion sought the following:

Further consequential relief was sought.

This judgment deals with the assessment of damages for 31 group members, in addition to Mr Moore, under the three heads posed in the Notice of Motion.

In order to set the background, it is necessary to record the following facts regarding what occurred on each of the Cruises.

Cruise 1, which was addressed at [453]-[483] of my first judgment, was a 14 day cruise through the south of France. The Cruise commenced on Sunday, 19 May 2013, with the first night in Paris at a hotel. Passengers were, on the morning of 20 May 2013, intended to travel by the fast train, the TGV, to Dijon from where they would be transferred by coach to Chalon-sur-Saône to board the Scenic Emerald. The Cruise was intended to finish on 1 June 2013, when passengers would disembark the ship in Arles and be transferred by coach to Nice airport. The planned itinerary included 12 days of cruising. The route proceeded south from Chalon-sur-Saône in central France to Arles in the south of France, passing through Tournus, Macon, Trevoux, Lyon, Vienne, Tournon, Viviers, Châteauneuf-du-Pape and Avignon.

In the end passengers on Cruise 1 cruised on only one of the 12 planned cruising days. The passengers were instead provided with coach trips, which took many, many hours, during which they travelled to various locations and then returned to the Scenic ship when it was docked. They were also accommodated in hotels, two nights in Avignon and one night in Nimes, which required them to pack and unpack their suitcases for each hotel stay, and as the ships were changed.

Cruise 2, which was addressed at [484]-[496] of my first judgment, was to proceed along the route from Budapest to Amsterdam, passing through Vienna, Dürnstein, Melk, Linz, Passau, Regensburg, Nuremberg, Bamberg, Würzburg, Wertheim, Rudesheim, Marksburg, and Cologne (“the Budapest to Amsterdam route”). The Cruise was scheduled to commence on 20 May 2013 upon the Scenic Jewel.

From 20 to 28 May 2013, Cruise 2 proceeded as scheduled. However, for three days from 28 to 30 May 2013, no cruising occurred as the ship was docked in Bamberg and unable to leave. On 31 May 2013, the passengers were transferred by coach for the day as they changed ships. Although some cruising occurred overnight, there was no daytime experience of cruising. From 1 June to the conclusion of the Cruise on 3 June 2013, the Cruise proceeded as scheduled.

Cruise 3, which was addressed at [497]-[523] of my first judgment, was to proceed from Amsterdam to Budapest, through the towns named in [19] above but in the reverse order (“the Amsterdam to Budapest route”). The Cruise was scheduled to commence on 25 May 2013 on the Amadeus Silver.

From 25 to 28 May 2013, Cruise 3 proceeded as scheduled. However, the only cruising which took place in accordance with the itinerary and Brochure was over the initial four-day period which included two days of cruising. The balance of the tour consisted of coach travel over long distances and for many hours. Instead of having 10 days during which passengers could experience the promised cruising, the passengers on the trip experienced only two. The passengers were accommodated on two different ships and in two different hotels.

Cruise 4, which was addressed at [524]-[555] of my first judgment, was to proceed along the Amsterdam to Budapest route. The Cruise was scheduled to commence on 27 May 2013 upon the Scenic Ruby.

The passengers on Cruise 4 had only three days of cruising, one of which was incomplete. From the fourth day onwards, all touring was done by coach. An email on 10 June 2013, from Justin Brown to Glen Moroney recorded that there were “7 unplanned stationary days” on this Cruise. The passengers stayed on three separate ships and at a hotel in Budapest.

Cruise 5, which was addressed at [556]-[593] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 27 May 2013 upon the Scenic Sapphire.

Overall, on eight out of the ten days, which were described in the intended itinerary as cruising days, there was no cruising at all, with all touring being carried out by coach. Justin Brown’s email of 10 June 2013 recorded “eight unplanned stationary days”. The passengers were obliged to change ships on two occasions during Cruise 5, with lengthy coach trips to effect the ship swaps.

Cruise 6, which was addressed at [594]-[612] of my first judgment, was to proceed along the Amsterdam to Budapest route. The Cruise was scheduled to commence on 29 May 2013 upon the Scenic Diamond.

Overall, only two days of cruising occurred on the trip. Cruising on a third day was partial and incomplete. There were 10 days during which the passengers stayed on a ship and took bus tours. This does not include their time in Amsterdam or Budapest. The passengers stayed on two separate ships and in a hotel. They had very lengthy motor coach trips.

Cruise 7, which was addressed at [613]-[628] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 29 May 2013 upon the Scenic Sapphire.

Cruise 7 was intended to include 10 days of cruising, but instead the passengers experienced only three days of cruising. They did experience the two-day port stop at each end of the trip in Budapest and Amsterdam, which included the starting day and the finishing day.

Cruise 8, which was addressed at [629]-[654] of my first judgment, was to proceed along the Amsterdam to Budapest route. The Cruise was scheduled to commence on 3 June 2013 upon the Scenic Jewel.

In summary, passengers on Cruise 8 changed ships on two occasions and so travelled on three different ships. Instead of cruising for 10 days, they only cruised for three days.

Cruise 9, which was addressed at [655]-[682] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 8 June 2013 upon the Amadeus Silver.

The passengers on Cruise 9 were significantly disrupted. In Budapest they were accommodated in a hotel and not on a ship. Between Budapest and Nuremberg, the passengers travelled by motor coach and did not have any cruising at all. They were accommodated on two ships and did not commence any cruising until the eighth day of this planned Cruise. They only experienced four days of cruising.

Cruise 11, which was addressed at [698]-[717] of my first judgment, was to proceed along the Budapest to Amsterdam route. The Cruise was scheduled to commence on 10 June 2013 upon the Scenic Sapphire.

Overall, four days of cruising were completely lost and one day of cruising was partially disrupted. Budapest was not able to be enjoyed, nor was the vast majority of the Danube River.

The plaintiff and group members claimed, pursuant to s 267(3)(b) of the ACL, the sum of money which represented “compensation for any reduction in value of the services below the price paid”. This section is applicable because of the finding in my first judgment that the breaches of the consumer guarantees constituted a “major failure” within the meaning of s 268 of the ACL.

It is important not to overlook what a major failure is defined by s 268 of the ACL to be – that is, that “… the service would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure …”.

Where the services provided would not have been acquired by a reasonable consumer who knows of the nature and extent of the major failure, it may seem to be an entirely artificial and rather impractical notion that those services had any residual value. That is because the notion of damages which most closely approximates a major failure is the “no transaction approach” to damages. That is, but for the breach of contract or tortious duty of care, the claimant would not have entered into the transaction. Damages so assessed ordinarily result in an award which includes all monies expended on the unsatisfactory transaction and, as well, any consequential losses: see, by way of example, McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79.

However, as is apparent from the Court of Appeal’s judgment at [331], counsel for the plaintiff and group members, who does not appear on the present proceedings for the plaintiff and group members, accepted that the value of the services which were provided should be determined by reference to “market considerations”, that is, an amount a fully informed consumer would have been prepared to pay for those services.

Given this concession and notwithstanding my earlier comments, I am obliged to make the assessments on the basis enunciated by the Court of Appeal.

That basis for an award was considered in the Court of Appeal’s judgment from [327]-[335]. From those paragraphs, I derive the following:

It is also apparent that damages are assessed by reference to the value of the services actually provided and the differential between that value and the price paid for the services. It does not make any difference to that assessment which of the consumer guarantees were breached. The assessment is not increased by the number of the guarantees breached. It is therefore not necessary to identify and then separately consider each of the breaches of the consumer guarantees for each of the Cruises.

There was no appeal from the Court of Appeal to the High Court of Australia in respect of this particular aspect of damages. However, in the High Court’s judgment, in dealing with damages for distress and disappointment, which I discuss further below, neither the judgment of the plurality (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) nor the separate judgment of Edelman J drew any distinction between causes of the damage as being either a breach of contract or else a breach of the consumer guarantees set out in the ACL.

As Edelman J said at [63]ff (omitting citations):

To the extent that these remarks dealt with s 267(3)(b), they were obiter dicta because the High Court was not seized of any issue about that provision. However, they are persuasive and form the basis for the way in which the plaintiff articulated the claims for the various heads of damages.

A similar approach can be seen in the judgment of Gageler J in Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56, where, at [61]ff (omitting citations), he said:

The plaintiff called Ms Dianne Butler to give expert evidence on the claim made pursuant to s 267(3)(b) of the ACL for the difference in value between the services that ought to have been provided and those that were actually provided. It will be convenient to describe this as the “lost value claim”. Ms Butler described herself as a tourism management and marketing expert. She had experience in developing and designing packaged tour itineraries for sale to Australian travellers and reviewing the performance of these packages. This included fixing the price at which the packages would be sold. She had also held teaching positions in the marketing discipline.

Ms Butler’s initial opinion was that none of the Cruises, as they actually took place, would be a marketable tour package. She said that a fully informed, reasonable consumer would not purchase any of the Cruises as a tour package – accordingly, on her first methodology, she concluded that the Cruises would have no (or only nominal) market value.

She noted that this opinion was based upon the assumption that the fully informed consumer would be someone who was interested in undertaking a river cruise. Ms Butler said, and I accept, that one significant difference between river cruises and coach tours was that cruise holiday operators promote the journey on board as being part of the holiday experience, whereas the coach holiday provider concentrates their marketing efforts on the destinations, sight-seeing highlights and free time.

Ms Butler articulated an alternative methodology for arriving at the lost value claims. For this purpose, Ms Butler assumed that the consumer was indifferent to alternative holiday offerings but was willing to accept a tour that was not marketed as a luxury cruise package, or a luxury coach holiday, but, rather, was marketed having regard to price and was targeted at the consumer who would accept the package for what it was.

On the alternative methodology, Ms Butler engaged in the assessment of the daily cost of the cruise calculated by reference to the number of nights spent on the cruise, the daily cost of coach travel and the making of appropriate allowances for cabin supplements. She then applied a discount to the calculated price to reach the price at which a package could be marketed to a fully informed consumer. In so doing, Ms Butler was offsetting a negative experience on one day against positive experiences on another to determine the value of the package as a whole.

Although criticism was made of Ms Butler’s experience, and the fact that she had not engaged very much in direct selling of packages to consumers, I am satisfied that Ms Butler had adequate expertise and experience, and that her alternative methodology by which she calculated various values reflected one reasonable way of attempting to ascertain a market value of the services which were in fact provided by Scenic on the Cruises.

The defendant called Mr Phillip Hoffman as an expert witness on the lost value claim. Mr Hoffman had decades of experience in the travel agency business. His own travel agency is apparently one of the largest independent travel agencies in Australia, selling different brands of river cruising travel and all forms of holiday travel packages. He had put together specialised travel packages and conducted them. He had personally taken, so he said, river cruises including upon a Scenic ship.

The evidence showed that Mr Hoffman’s business had sold Scenic Tours and had been remunerated by a commission calculated as a percentage of gross invoiced amount. Other payments were also received by way of incentive and override conditions. His business continues to market Scenic Cruises.

Mr Hoffman was a problematic expert. Whilst he was undoubtedly a very well‑experienced travel agent, with a large and successful business, his report did not record a number of matters of significance to the Court in assessing the weight to be given to his expert opinion, and its value.

These matters were:

Whilst the evidence revealed that Ms Nunn had been an employee of Mr Hoffman’s business for a reasonably long period of time, there was no evidence about her qualifications, her training or her experience more generally in the travel industry. There was no curriculum vitae tendered from which these matters could be judged.

As well, what is in effect the joint authorship of Mr Hoffman’s report by Ms Nunn presented a considerable hurdle in assessing which expert opinions expressed in it were Mr Hoffman’s or whether he found himself giving evidence in respect of opinions which he had not formulated and expressed.

A further difficulty with Mr Hoffman’s report was that it did not make any detailed reference to the way in which he went about assessing the price at which each Cruise in the circumstances which occurred could be priced for sale. In assessing the price for each Cruise, Mr Hoffman broadly followed a similar approach. He set out, or referred to, the itinerary and then summarised what had occurred including by drawing attention to the age of the ships which were used. He then set out a chart which allocated against each date of the scheduled Cruise whether there was any difference to the itinerary, whether the itinerary and change was minimal or major. Finally, he stated his opinion as to what price a package could have been sold for to a relevant consumer.

No other explanation of the price at which the package could be offered was made.

In cross-examination, it became apparent amongst other things, that in reaching the price, Mr Hoffman did not take into account where the ship was in fact moored when he expressed his opinion. On some Cruises, for example, the ships were moored in industrial locations which were difficult to get to or perhaps unpleasant by reason of sight and smell. This does not seem to have been taken into account by Mr Hoffman. In addition, in coming to a valuation, Mr Hoffman counted each of the 15 days of a Cruise as being equally valuable. He accepted, as the fact, that the first day of a Cruise, which is the day upon which passengers embarked on the ship, commenced generally late in the afternoon and consisted of a welcome for the guests and a meal, but no other activities. He also accepted that the last day of the Cruise consisted of the passengers being provided with breakfast and then disembarking, usually by 10am. The value of the services received on those two days cannot be regarded as being equal to those received on a more typical cruising day. The market value of the services was reflected inappropriately in this way.

This approach is compared with Ms Butler’s, who approached her valuation by counting each night of the Cruise and valuing the services on that basis. It seems to me that Ms Butler’s approach is much more likely to result in an accurate determination of the true market value of the services that were provided.

Mr Hoffman described Cruises 3, 4, 8 and 11 as being capable of being sold to clients who were hunting for an exceptional bargain and good value and explained that the target market was not the same market as Scenic would normally target its cruises. His method of evaluating a price for those Cruises was essentially aimed at pricing the package as a whole. He explained his methodology by saying:

That method was challenged in cross-examination, in circumstances where he had not identified a comparable product from a travel provider and had never sold a product like those Cruises to any customer.

Mr Hoffman also agreed that he would be very careful about, and would not enjoy, selling Cruises 3, 4, 8 and 11 because there is a risk that the purchaser would be dissatisfied by the experience. He was asked these questions and gave these answers:

Mr Hoffman described Cruises 1, 2, 5, 6, 7 and 9 as cruises that “held a certain [reasonable] value level” and proceeded to value them on a “day-by-day” basis. He considered those Cruises as being capable of being sold to a similar segment of the market as that normally targeted by Scenic.

The task which both Ms Butler and Mr Hoffman essayed in accordance with the Court of Appeal reasoning was necessarily imprecise. That is because they were both fixing a figure for a product which had never been marketed by anyone, and which no-one had tried to sell in the marketplace.

As will become apparent, where there remains, after a joint conference and the preparation of a joint report, significant differences in the values reached by Ms Butler and Mr Hoffman for Cruises 3, 4, 6, 7, 8 and 11, I prefer the opinions expressed by Ms Butler rather than those contained in Mr Hoffman’s report. I was unimpressed by Mr Hoffman’s approach or his performance as a witness.

A further matter which became apparent in seeking to understand Mr Hoffman’s expert opinion was that some of the prices for the Cruises just mentioned were fixed by him on the basis that the Cruises could be sold at those prices in circumstances where the prices were described as being “loss leader” prices.

Mr Hoffman told the Court that in using that term he intended to convey that, from the marketing perspective, it was a price offered to attract purchasers to discuss taking a tour at that price, at which time it was often the case that customers would be sold, and be happy with, a different and more expensive product. He was asked these questions and gave these answers:

After both Ms Butler and Mr Hoffman had given evidence, they met in joint conference in accordance with an order of the Court and produced a joint report. In that joint conference, as recorded in the joint report, they sought to reach an agreement as to the market value of the Cruises on the basis of a perceived similarity between Mr Hoffman’s methodology, as it had been revealed in cross-examination, and having regard to notes which he had made about which he was asked in cross‑examination, and Ms Butler’s second, or alternative, methodology.

The joint report recorded that the experts had reached an agreement with respect to Cruises 1, 2, 5 and 9. I accept the valuation of these Cruises, as agreed by the experts.

Cruises 3, 4, 6, 7, 8 and 11 were cruises in respect of which there were quite significant disruptions. They were cruises in relation to which Ms Butler thought that there was no real market for them if marketed as a cruise package. Mr Hoffman agreed with that opinion but expressed the view that there was a market for a very low-cost budget traveller who might be prepared to pay the price which he had fixed. In the case of these Cruises, accepting the fact as the experts agreed, that such a package had never been marketed by anybody, and accepting Mr Hoffman’s approach that he was merely contending that the price he suggested was a price at which such a package might possibly be able to be marketed, I prefer to take the lower valuation proffered by Ms Butler for these Cruises on the basis of those matters and because, generally speaking, I preferred her evidence and her more logical and careful approach.

It is appropriate to record these conclusions in a table, which I now set out.

It is to be observed from the table set out above, that any calculation in monetary terms is based upon the price at which a cabin at the lowest end of the range of available cabins has been sold for the particular Cruise. This base cabin price is then increased by various supplements to reflect an improvement in the deck upon which the cabin is located, and the nature and size of the cabin. Occasionally, it also reflects the positioning of the cabin on the ship.

Except for Cruises 3 and 9, on each other Cruise there were a large number of types of cabins. On Cruises 3 and 9 there were fewer types of cabins. The variation in the published or purchase price could be quite significant. By way of example, on Cruise 7 the base cabin was sold for a published price of $7,195. By the time one reached the highest grade of cabin, a Royal Suite on the Danube Deck, the published price for that cabin was $11,790.

Notwithstanding this quite wide range of published prices, both experts expressed the view which I accept that the percentage difference between the base cabin price and the value of the services calculated by the experts could be applied properly to each grade of cabin, and the price paid by the consumer so as to reflect the market value of the services in fact provided.

In other words, if, as is the case with Cruise 1, the value of the services provided for the base cabin was 38% of the base cabin price, then that percentage could be applied to all cabin grades to ascertain the value of the services provided to occupants of those other cabin grades.

As is also apparent, in accordance with the proper approach to the calculation of the lost value damages claims, the experts in their evidence and my findings bear relation only to the objective criterion, i.e., the value of the expected services on one or other Cruise when compared with the value of the services that were in fact provided.

Since this part of the assessment of damages has only had reference to objective and not subjective considerations, the determination of the value of the services which were provided, expressed as a percentage, is one that can be applied to each passenger on the same Cruise, i.e., the percentage determined in this judgment is applicable to all of the passengers who travelled on the particular Cruise.

The claimants also claimed interest with respect to these damages. In my first judgment, I held that Mr Moore was entitled to interest on the sum I determined represented his lost value. Any such interest is awarded in accordance with s 100 of the Civil Procedure Act 2005. I held that interest should be calculated not from the time when the money was originally paid, but rather from when the major failure occurred and the loss of value was capable of being ascertained, because it was at that point in time when compensation would notionally have fallen due to be paid. That date is the last day of the scheduled itinerary of each of the cruises. This finding was not the subject of any appeal. Nor have any submissions been made to me at this hearing that a different approach ought to have been followed. It follows that for each award of damages for lost value, a claimant is entitled to interest calculated in this way.

The second part of the damages claim relates to distress and disappointment.

In accordance with the decision of the High Court in this matter, damages for distress and disappointment are recoverable by the plaintiff and the group members. Although the basis for the damages is a breach of the consumer guarantees contained in the ACL, the assessment proceeds in accordance with the principles developed for breach of contract cases.

The damages awarded in “holiday cases” such as this one compensates a plaintiff for what they were promised when the expectation of a happy, joyous, peaceful and contented holiday has been unfulfilled. What is involved is a comparison between the expectations of the individual traveller and the reality of what that traveller was provided: see the High Court’s judgment at [46].

Although in a shorthand way, these damages are described as being for “distress and disappointment”, the authorities suggest that such an award of damages is much broader.

In Jarvis v Swan Tours Ltd [1973] QB 233 (“Jarvis”) at 238, Lord Denning MR said relating to a breach of contract this:

Edmund Davies LJ said at 239 in Jarvis, that the Court was bound to “contrast the overall quality of the holiday so enticingly promised with that which the defendants in fact provided”.

His Lordship had earlier said of Swan Tours at 239:

In both Baltic Shipping Company v Dillon (1993) 176 CLR 344; [1993] HCA 4 (“Baltic Shipping”) and in its judgment in this case, the High Court of Australia has described the damages by the rubric “damages for distress and disappointment”. At [46] of the High Court’s judgment in this matter, the plurality said:

In Watts v Morrow [1991] 1 WLR 1421 (“Watts” ), Bingham LJ included these concepts as falling under the head of damages for distress and inconvenience caused by a breach of contract: distress, frustration, anxiety, displeasure, vexation, tension and aggravation.

Mason CJ in Baltic Shipping, citing Watts with approval, used the phrase for damages as being “… for distress, vexation and frustration.”

This review of the authorities shows that what is to be assessed under the heads of damages for distress and disappointment ranges across all kinds of mental distress, inconvenience, anxiety, disappointment, frustration or vexation arising because the services to be provided were not, or else as here, the purpose of the acquisition of the services failed. As well, the group members did not receive the result of the services which they were reasonably entitled to.

Whilst each group member is entitled to have their damages assessed on an individual basis to reflect their particular experience, distress and disappointment, it is nevertheless appropriate to have regard to the objectively determined facts about the extent to which each cruise failed to achieve the purpose and result guarantees.

The commencement point of this analysis is to identify the services which Scenic promised to supply. In the case of the plaintiff, Mr Moore, the Court of Appeal said at [188]ff (omitting citations):

In my first judgment, I noted that the Brochure published by Scenic was the only document which comprehensively described the services which Scenic was promoting and which it “enticingly” was to provide: at [371].

I set out, and adopt without repetition, from [312]-[342] the relevant passages from the Brochure which cast light on the expectations from Mr Moore and, in the absence of any specific evidence to the contrary, each of the group members. Mr Moore and the group members were entitled to expect that the particular river cruise which they chose would be: a “once in a lifetime cruise along the grand waterways of Europe”; one where the passengers would be “immersed in all-inclusive luxury”; “a truly unforgettable” journey; and one where the passengers would be provided with “meticulous attention to detail, first-class service and intimate personal touches”.

Passengers were led to expect that they would experience the “ultimate river cruise experience” during which they would enjoy a level of inclusive “luxury and service which is unsurpassed on the waterways of Europe”.

Other features were also emphasised: the number of different cafes and restaurants available on board where passengers could choose to eat; the range of indoor and outdoor viewing locations; and the availability at all times of the “sanctuary of your own private suite or stateroom”, which, in some cases, included an exclusive private balcony which was “perfect” for viewing in “all kinds of weather”.

In assessing this part of the damages claim, I have also had regard by way of context and background to some evidence given by Ms Butler. She drew attention to a widely published theory about the purchase of holiday experiences and that for each individual traveller in such purchases there were five stages.

First, dreaming – during which a person thinks about holidays and starts to actively consider where to go, a phase that can take place over many years.

Secondly, planning – where a person starts collecting information and seeking recommendations, speaking to people and researching online. Again, this phase can be lengthy.

Thirdly, booking. In an appendix to Ms Butler’s report, it is noted that most European river cruise holidays are booked well in advance, which is due to their limited capacity and limited number of sailings. A high proportion of these cruises are booked between one and two years in advance.

Between booking a holiday and experiencing it, it is noted in that appendix that, there can be expected to be a heightened anticipation. As the holiday approaches, the traveller may undertake more research on their holiday destinations and the closer they get to their holiday, the more their excitement and anticipation increases.

Fourthly, experiencing. In addition to the experiential elements of the holiday, long-haul travel adds an element of travel which heightens the expectations of Australians and other travellers that must come from far away to experience their holiday.

Fifthly, remembering – which is the last stage. People, it is noted, expect to share memories between themselves, their friends and family and have an expectation that those memories will be good.

Ms Butler also noted, and I accept, the opportunity for travellers in undertaking any holiday is to:

I note that the experience of a holiday, particularly for people who travel considerable distances to Europe to take a particular holiday experience, here travelling on river cruises in Europe to well-known and popular destinations, has the consequence that they are spending time away from home, family, friends, familiar surroundings and their other interests. Whilst, of course, this is, or can be, a negative influence in making a decision to travel or select a particular holiday package, the expectation is that the selected holiday will more than compensate for that negative experience. When that expectation is not met, the negative experience remains.

In my first judgment, I described Mr Moore’s personal experience at [74]-[134]. It is unnecessary to repeat all that was there written. I do note, however, that in Mr Moore’s case there were a number of particular features which were relevant to my assessment of his claim for damages for distress and for disappointment which may also be relevant as part of the integers in the circumstances of the other group members. They included:

The evidence of the various group members, some of which was corroborated by contemporaneous letters, shows that there may have been various subjective matters in addition to those already touched upon which may also be relevant to the assessment of damages for distress and disappointment, and which are intrinsically subjective considerations. These include:

All of these matters, which may exist in some but not other cases, point to the fact (which is undoubted in the authorities) that the assessment of damages for distress and disappointment in all of the circumstances is a very fact-rich and individual assessment.

That it is an individual assessment is readily apparent from the decision of the UK Court of Appeal in Milner v Carnival plc [2010] EWCA Civ 389; [2010] 3 All ER 701 (“Milner”), which found that a husband and wife travelling together on the same holiday cruise can be awarded different sums of money for damages for distress and disappointment depending on the particular circumstances of their experience. There, at [55], Ward LJ held that Mrs Millner’s distress was more acute than that of her husband and, accordingly, she was awarded a greater sum of damages for distress and disappointment.

It is convenient to note a general description given to the nature of these damages. In Milner, the Court considered whether there was comparability between the awards for damages for distress and disappointment with those of psychiatric damages in personal injury cases. It pointed out that awards in personal injury cases are not entirely comparable to damages for distress and disappointment. At [58] Ward LJ said:

Scenic called a number of passengers to give evidence of their experiences on the Cruises. These passengers gave evidence that, speaking generally, they had not been particularly upset, or had not suffered disappointment either at all or, if they did, it was not to the same extent as the claimants whose damages I have been asked to assess. Whilst I entirely accept that these witnesses were giving their evidence to the best of their recollection, I am of the view that their evidence does not have any ameliorating effect when assessing the damages for distress and disappointment in the case of each claimant.

That is for, at least, two reasons:

As I recorded in my first judgment, damages for distress and disappointment are able to be assessed at large. They are not constrained by the application of the CLA.

I also noted in my first judgment at [914]-[917] that I do not regard it as correct that an award for damages for distress and disappointment should be only made in a token or nominal sum. The assessment of the sum for this head of damages is undertaken in the individual case by an evaluative process applying a sense of fairness and justice to the circumstances proved.

The claimants seek an award of interest on any damages awarded for distress and disappointment. As is apparent, although the distress and disappointment occurs during the cruise and then continues after the cruise has ended for varying periods depending on the individual, and the impact which the breach of the consumer guarantees have had on that person. However, it is apparent from the evidence that the great bulk of the distress and disappointment occurs during the and immediately after the cruise finishes.

An award of interest is itself an award of damages which serves to compensate a claimant for not being paid their damages at the time their entitlement arises but rather at a later time when the damages can be quantified by a Court judgment, and to ensure that the claimant is not disadvantaged by the inevitable delay between their entitlement arising and it being quantified by court proceedings: see Haines v Bendall (1991) 172 CLR 60; [1991] HCA 15.

The nature of damages awarded for distress and disappointment which is an accumulating concept means that one cannot be precise as to precisely when and in what sum the damages were accruing. A broad-brush approach to the award of interest is appropriate. In my view, claimants who establish an entitlement to an award of damages for distress and disappointment are entitled to interest on 90% of that sum in accordance with the full rate prescribed by s 100 of the Civil Procedure Act from the last day of their cruise until judgment on their individual claim is entered, or else the Court orders payment of their damages (in circumstances where an individual judgment may not be entered).

This approach recognizes that most but not all of the damages will have accrued by the end of the cruise, but some will accrue after the cruise ends and over the following years.

It is now necessary to consider the individual circumstances and to make an assessment of the value of damages of each of the individual claimants whose matters were heard by the Court in the course of the current stage.

Mr Britten travelled on Cruise 1 which commenced on 19 May 2013. At the time of travelling, he had retired. He travelled with his wife, Lesley. They booked the Cruise about 12 months before they travelled. Mr Britten paid for a balcony suite (Category P) which cost about 23% more than the base cabin rate.

Mr Britten’s cruise was part of a longer holiday which included spending time before the Cruise in Barcelona and, after that, by taking another cruise on the Mediterranean. After the Mediterranean cruise, Mr Britten travelled to Paris for a few days, toured Normandy and the Somme battlefields, and then connected to the Scenic Cruise upon which they had booked. After the Scenic Cruise they immediately flew home.

Mr Britten booked Cruise 1 in particular so that he would be able to celebrate his wedding anniversary during it. He wanted it to be a special holiday with his wife to celebrate their marriage.

Prior to travelling, Mr Britten had undergone two total knee replacements and he found it difficult to walk a lot or to travel in uncomfortable and cramped vehicles such as buses.

He had previously enjoyed a Scenic cruise along the Rhine, Main and Danube Rivers. On that cruise, he had had no difficulty with his knees and had been able to unpack his suitcase just the once and then experience a two-week cruise in a relaxed environment.

In addition to wanting to enjoy the luxury, the five star standard of service and the spacious and comfortable staterooms which were promised in the Brochure, Mr Britten was particularly looking forward to a relaxed pace of sailing with views of stunning landscapes, multiple dining options whilst on board to be enjoyed in a large dining room with a relaxing atmosphere and ambience, and a variety of interesting excursions, particularly a visit to the Camargue to see birdlife because he and his wife were keen bird watchers.

Mr Britten and his wife had never been to southern France before and they were looking forward to experiencing it by a relaxing river cruise in what Mr Britten regarded as a famous wine-making region. He imagined himself enjoying the wines of the region while calmly sailing down the river.

As earlier mentioned, it was particularly important to Mr Britten that he stay in the same accommodation throughout the Cruise without having to frequently unpack and re-pack his luggage.

Mr Britten had been a restauranteur at some time prior to his retirement and, accordingly, enjoyed high quality food and dining. That was not something which he had the opportunity to experience where he lived in a relatively small town, but it was something that he was particularly looking forward to enjoying.

The Cruise was, for Mr Britten and his wife, a very expensive purchase and in order to fund the trip they had borrowed money by means of a reverse mortgage on their home. Mr Britten justified this by saying that given the advancing ages of himself and his wife, he thought it was important that they enjoy themselves while they were still able.

He and his wife were looking forward to the Cruise and during the 12 months after it had been booked, they spoke with a number of friends and members of their family about their excitement.

The Cruise was not a happy experience for Mr Britten. His evidence, as set out in his affidavit of 15 May 2015 (which I accept), set out in detail the experiences which he and his wife had on the tour. Mr Britten was particularly disappointed that two excursions which had been much anticipated did not occur. The first was a canoe trip in the Ardeche National Park which did not happen because of the transport arrangements at the time. The second matter was that because of his discomfort, which had accumulated over the many hours of bus travel during the course of the holiday, he did not feel able to make the 7½ hour return bus trip to experience the Camargue National Park which was, because of its birdlife, something he had been particularly looking forward to.

For Mr Britten, when staying at hotels chosen to substitute for the Scenic ship, the food on offer was of a poor quality. There was a requirement to queue up for buffet food which was sometimes cold; he and his fellow passengers were seated in small rooms which they had to vacate quickly to free up space for other passengers to eat; and the timing, particularly the lateness of arrival on board the Scenic ship on various evenings, because of the extensive bus travel, meant that the atmosphere and mood during meals on the Cruise was not at all congenial. Mr Britten accepted that the food on board the ship was of much better quality than at the hotels. He found the atmosphere stressful due to the rushed nature of the meals and the fact that they came after long and uncomfortable bus journeys.

Mr Britten particularly found, at the hotel at Avignon, that he had no time for a bathroom break before the meal was served, and that he had to attend that meal even before his luggage had been delivered to his room and he had had an opportunity to rest and refresh himself. It made him feel stressed and upset. The hotel rooms were of a poor standard.

One of the things to which Mr Britten had been looking forward was the views of the countryside as the Cruise proceeded. When he was on board the ship and in the balcony suite for which he had a paid a significant upgrade in the base cabin price, Mr Britten found that the views were the same for days on end, and he was very dissatisfied that he could not see parts of France that he had researched from cruising along the river.

The buses that were used throughout the Cruise were of a very poor quality, with poor suspension and lacking air-conditioning or fresh air.

In short, Mr Britten was extremely disappointed with the Cruise which for him had been transformed into a completely different unenjoyable experience.

He said, and I accept, that he had expected to receive a package through which he could explore southern France in a luxurious and comfortable environment, which would leave him feeling relaxed at the end of the trip – and he did not receive that at all.

I accept the following evidence which he gave by affidavit:

Having regard to the services which were in fact provided and the extensive disruptions of this Cruise, Mr Britten’s feelings were entirely understandable and justified. I accept them.

Since returning home, Mr Britten’s feelings of disappointment have not diminished over time and he continues to have ongoing negative memories.

Because of the way the trip was funded, he feels disappointed and out-of-pocket. As he said, “[e]very time I think about my finances, I remember all of the money which I wasted on Cruise 1 and the fact that I am still paying for it”.

Mr Britten would not have purchased this Cruise had he known in advance what was to occur.

I would assess damages for Mr Britten’s disappointment and distress in the sum of $7,500.

Mr Davis is a man in his early 70s who, although retired, undertakes some part‑time work. He booked, together with his wife and four other friends, on Cruise 1 about seven months or so prior to the commencement of the Cruise.

The group of people with whom he was travelling, a total of six, had travelled together as a group prior to this occasion, and had met some years earlier while undertaking a river cruise.

Mr Davis and his wife travelled to the Cruise via London where they spent a couple of days. After the Cruise concluded, they embarked on a coach tour organised by Scenic in Spain and Portugal following which they flew to Switzerland and embarked on a seven-day train tour around Switzerland.

Cruise 1 was the first time after his retirement that Mr Davis had undertaken a trip overseas from Australia.

Because of previous river cruising experiences, Mr Davis and his wife had found travelling along the river with everchanging landscapes and different tours available along the way to points of interest to be very enjoyable and very relaxing experiences. It was these enjoyable and relaxing experiences that Mr Davis was looking forward to on Cruise 1.

At the time of booking Cruise 1, Mr Davis was planning to retire and was looking forward to it as a post-retirement reward. Because Mr Davis was retiring, he regarded the Cruise as a very expensive purchase, but he budgeted for it and saved for some time, and it represented a reward to him upon his retirement after a lifetime of hard work.

He accepted that he was paying a premium price in booking a cruise with Scenic but justified that to himself on the basis that he would be receiving a top‑quality product proportionate to the price that he was paying. One of the reasons that Mr Davis thought it worthwhile to pay a premium to travel on Cruise 1, was:

Two particular excursions, the kayaking trip in Viviers and the trip to see birdlife, including flamingos, on the excursion to the Camargue, were trips that Mr Davis was particularly looking forward to.

Because Mr Davis was embarking on a two-week coach tour through Spain and Portugal after Cruise 1, it was important to him to have a relaxing and comfortable cruise beforehand. He wanted to completely switch off and relax throughout the 14 days of the Cruise.

One of his particular expectations in choosing Cruise 1 was that it was his preferred style of travel – that he would be able to unpack his bags once and stay in the same accommodation. He found this to be his preference since first taking a cruise.

He described his expectation in this way:

As earlier noted, this was the first holiday trip for Mr Davis after his retirement. He gave this evidence about his anticipation, which I entirely accept:

Mr Davis became more excited about the Cruise as it approached.

Mr Davis was disappointed and found the Cruise to be very dissatisfying. Most of all, he had expected to receive a cruise but found that there was barely any cruising at all. He had expected to unpack and pack his bags once and stay in the one place of accommodation, but the Cruise did not permit this. This was particularly important to him in advance of a coach tour in Spain and Portugal.

He expressed his disappointment in this way – which I accept:

At the time he swore his affidavit in 2020, Mr Davis still felt angry and disappointed about his experience, particularly in light of what he had paid for the Cruise. When he reminisces about travel generally with his companions, and is reminded of the events of this holiday, he feels particularly angry.

Mr Davis booked a cabin which was a balcony suite in Category BA which cost a little over 20% above the price of the base cabin.

Mr Davis accepted in his evidence that some of the experiences which he had had been positive, however, the effect of his evidence was that whatever positive experiences he had received were overwhelmed by the negative experiences.

This was an expensive trip for Mr and Mrs Davis which was meant to be a reward for Mr Davis’ lifetime of hard work upon his retirement.

I would assess damages for the stress and disappointment for Mr Davis $7,000.

Mrs Hill was retired at the time she, together with her husband, booked a cabin on Cruise 1. The booking was made about 11 months or so before the Cruise was due to depart. The Cruise package included her flights to and from Europe. Mrs Hill and her husband spent about a month in Europe and in the United Kingdom, including visiting their son and his wife and other family and friends before flying to Paris to commence the Cruise. At the conclusion of the Cruise, they undertook a further 14-day coach journey around Spain and Portugal.

Mrs Hill was a seasoned traveller prior to undertaking Cruise 1. She had embarked on 18 cruises on oceans and seas in various locations around the world. This cruising experience had commenced when she was about 18 years old and had continued from time to time since. She was enamoured of the cruising lifestyle, finding it an unrestricted and pleasant way to pass days and evenings with the possibility of different food and entertainment each day. She also enjoyed meeting and making new friends on her cruises. Of particular significance was that in April 2007 she undertook a Scenic cruise from Amsterdam to Budapest. She had a wonderful time on board that cruise and thought it was a very well organised cruise with a professional Cruise Director.

Although she had been on a number of bus tours in the past, she did not enjoy them and much preferred cruising. In particular, she preferred to be able to unpack once and stay in the same accommodation throughout her holiday.

Before booking her Cruise, Mrs Hill read through the Brochure published by Scenic. She was pleased with the itinerary for the South of France Cruise, which was important to her as she wanted to see new locations. She had not been to France before with her husband and was looking forward to that experience. She was particularly looking forward to the slow pace of the Cruise set out in the itinerary and being able to relax and slowly see the southern part of France, rather than undertaking a rushed trip.

Mrs Hill was particularly looking forward to the excursions provided to Tournus, a traditional silk factory and Pont du Gard.

She expected, having read the Brochure, that the river Cruise would be of a higher standard that the ocean cruises she had previously travelled on and she particularly wanted to make sure that she could cruise in comfort and relax because she had had a hip replacement prior to the Cruise. Because she was not keen on bus coaches and wanted to enjoy the 14-day Cruise, Mrs Hill was looking forward to being able to unpack her luggage once and to settle into her cabin.

It was of particular importance that the Cruise was an all-inclusive experience and that she did not have to worry about having cash available or budgeting for her expenses. She said this, which I accept:

This expectation reflected the services which Scenic offered and was in line with what a reasonable consumer may have expected.

As earlier recorded, very little cruising in fact occurred on Cruise 1 and the passengers were largely bussed to a variety of places, often requiring lengthy trips by road.

The ship was docked in Macon for many days. Whilst an excursion was organised to Lyon, it was quite unsatisfactory from Mrs Hill’s point of view. There was a lengthy bus trip and it was only possible to spend a short time in and around Lyon in circumstances where her expectation was, based on the itinerary, that the ship would be docking in Lyon. Lunch was not provided, each passenger was given €20 for lunch and, in effect, told to fend for themselves. The tour guide did not recommend any restaurant and, of course, Mrs Hill had no local knowledge of where to go. She was particularly disappointed and distressed that she had to arrange lunch without any assistance given that she had booked the Cruise to avoid such an experience.

On the evening of 25 May, Mrs Hill and the other passengers were informed by the Cruise Director that all passengers would be travelling by coach to Avignon on Monday 27 May and that they would be accommodated in hotels for the remainder of the Cruise. Mrs Hill found this to be a nasty shock and said that it felt like a nightmare. She was disappointed at travelling by bus to Avignon when she had expected to be able to cruise to that and other locations on the way. The passengers had to disembark the ship at 7am in order to travel to a hotel in Avignon. The travel to Avignon took about 10 hours with the result that Mrs Hill was very tired and felt a degree of pain and distress from being cramped up in the bus all day. Her knees were very sore and she felt very let down and irritated by the unpredictable changes.

Thereafter, Mrs Hill’s experience was most disappointing. She and her husband spent many hours on buses and they were accommodated in Nîmes at a low-quality low-budget hotel which was nowhere near the standard of the cabin on the ship or the accommodation that had been advertised in the Brochure. The breakfast provided at the hotel was not of an adequate quality and then they had to leave early to get back on a bus to spend more hours travelling to various other places. Lunch again was not provided on this day and although they met up with the ship later that afternoon and evening, it only commenced sailing in the evening, and it was simply too dark to enjoy any view of cruising on the river.

Mrs Hill was particularly disappointed and distressed about the Cruise. She gave evidence that out of the many cruises she had been on, this was by far the worst. She found the whole experience of Cruise 1 to be completely dissatisfying. She had expected a luxurious and relaxing experience of the kind she had previously experienced on a Scenic cruise and which was advertised in the Brochure. But this experience was entirely different. She was particularly dissatisfied because she was unable to unpack her bags once and stay in the same accommodation throughout the Cruise. She was looking forward to and was very disappointed to miss out on enjoying the scenery cruising along the river, instead having to endure long bus journeys without much scenery. She found the standard of the buses deteriorated throughout the Cruise.

Mrs Hill said this about her feelings when the Cruise was completed, which I accept:

When she looks back on the Cruise, Mrs Hill feels angry and upset. To the extent that she had enjoyable experiences, they have been overtaken by the complete disappointment in the Cruise as a whole. Her memories of Cruise 1 are overwhelmingly negative and she continues to feel disappointment in missing out on properly cruising through southern France. Having regard to her age, Mrs Hill feels it is unlikely she will have the chance of embarking on another river cruise and feels distressed and disappointed that as Cruise 1 was one of the last opportunities that her husband and she had to travel so luxuriously, she missed out on such an experience.

Although Mrs Hill was aware from a friend’s experience that low water levels could disrupt river cruises, she relied upon Scenic in that, if low water levels impacted on the Cruise, Scenic would organise alternatives commensurate with what was contained in their Brochure.

I accept that Mrs Hill was an experienced traveller. But that does not mean she was prepared for the experience of Cruise 1. Nor does it mean that she is not entitled to expect the services which were provided by Scenic to achieve the purpose and result guarantees.

Having regard to her age and all of the circumstances surrounding the taking of this trip, including the adverse experiences which she had on the trip and her disappointment and distress with those experiences, I would assess her damages for disappointment and distress at $8,000.

Ms Bosich, who is retired, booked to travel on Cruise 2 with her partner, Mr Trevor Smith. Although the evidence is unclear, it seems that the booking occurred in October 2012, about seven months or so before the trip. Prior to that, Ms Bosich had spent many months researching which cruise it would be appropriate to take – including by speaking to her travel agent.

A few years prior to taking Cruise 2, Ms Bosich had undergone surgery on her ankle, which meant that she was unable to sit comfortably for long periods of time in the same position. She also suffered from pain in her hips if she had to sit for long periods of time. As well, because she is quite tall, she often finds buses to be cramped and uncomfortable.

For those reasons, and for the extra leg room and comfort, Ms Bosich chose to purchase Business Class air tickets and to take a cruise holiday rather than a coach holiday.

At the time she booked, Ms Bosich was contemplating undergoing surgery for various medical conditions, and she took the view that this would be her last holiday away from Australia. She undertook her research, as I have said, for about six months because a cruise of this kind was an expensive trip for her and her partner, and she wanted to make sure that her money was well spent.

Ms Bosich read the Scenic Brochure carefully and noted such features as the Cruise would provide a five-star standard of luxury and service, that it would be a relaxing experience, that there would be plenty of time to relax and enjoy watching the river scenery no matter the weather, that there was a range of dining options in a relaxing atmosphere, an indoor and outdoor viewing area for the scenery and that there would be on-board entertainment every evening after dinner.

She gave this evidence, which I accept:

As mentioned earlier, Ms Bosich particularly opted for a cruising holiday because of her medical conditions. She had had surgery on her ankle and a hip replacement. Because of her height she found buses to be cramped. She said this of her expectations, having regard to her medical conditions:

Ms Bosich hoped that she would return at the conclusion of the Cruise feeling very relaxed and refreshed.

Ms Bosich used her savings in her superannuation fund to purchase the Cruise. It was important for her that the tour was all inclusive and that she could budget accordingly. She said this:

In her affidavit, Ms Bosich set out her anticipation leading up to the Cruise. She said she was very excited particularly to visit new towns and cities. She said this:

This was not at all unreasonable having regard to the luxurious cruise which Scenic offered in the Brochure for Cruise 2.

After Cruise 2 reached Bamberg, it remained docked there in an unattractive location. When the passengers were informed that they would be disembarking the Scenic Jewel early in the morning of 31 May 2013, Ms Bosich found that the process was very rushed and stressful because they were only advised the evening before, and little warning was provided to her. She found that she had only minimal time to ensure that her belongings and those of her partner were gathered together before they had to board buses. She was very disappointed at this point because she could not cruise the length of the Main River. She felt as though she was missing out on a huge portion of the cruising anticipated in the Cruise 2 itinerary.

Ms Bosich found the bus trip very uncomfortable, there were no bathroom facilities on the bus and there were high steps to board the bus which made it particularly uncomfortable for her to get on and off the bus. There was no enjoyable scenery from the bus and by the time the bus arrived at their destination, she was very fatigued and had lost all her energy.

The second ship on this tour was the Scenic Ruby. It was older and much inferior to the previous ship. It did not provide the luxury surroundings that Ms Bosich expected when she booked Cruise 2.

Ms Bosich was particularly looking forward to cruising through the Rhine Gorge, a feature which had been well described in the Scenic Brochure. She imagined that this would have been one of the highlights of her whole experience, and that the scenery on this stretch would be the best she would see. However, due to the disruptions, the ship travelled through that area overnight and the scenery was unavailable.

Ms Bosich described her dissatisfaction with the Cruise in this way in her affidavit, which I accept:

Ms Bosich said that any of the positive memories from the start of her Cruise were completely overshadowed in her mind as a consequence of the disruptions which occurred. She felt at the end of the stressful and frustrating experience that her holiday had been a complete waste of money.

She said this:

As a consequence of this poor experience, Ms Bosich feels unable to embark on another river cruise and gets upset and frustrated when she thinks about the Cruise. She was looking forward to this particular holiday being the highlight of her life, but it was not.

As earlier indicated, there is absolutely no reason for me to reject Ms Bosich’s evidence about her level of distress and disappointment.

With Cruise 2 I need to bear in mind that the first eight days proceeded in accordance with the published itinerary. There were then significant disruptions and the final two days again proceeded in accordance with the itinerary except that the Cruise resumed on the Scenic Ruby ship which was an inferior ship to that upon which Ms Bosich had booked.

I assess the appropriate level of damages for distress and disappointment for Ms Bosich at $6,000.

At the time he booked the Cruise in late November or early December 2012 for himself and his wife Suzanne, Mr Osenton was retired and working part-time. The package he booked, which included being accommodated in a Junior Suite (Category BJ2), was about 40% more expensive than the base cabin.

Mr and Mrs Osenton flew from Perth to Budapest, arriving the day before they were due to board the Scenic Jewel, and flew home from Amsterdam a day or so after the Cruise finished. Mr Osenton, prior to taking this Cruise, had rarely travelled within Australia or overseas. From time to time, for family reasons, he had travelled to the United Kingdom.

By the time he came to make the booking on Cruise 2, Mr Osenton disliked bus tours and did not wish to travel on them. He did not fancy living out of a suitcase on a day-to-day basis as would ordinarily be required on a bus tour. He found that it was a burden to unpack his belongings each night and repack the following morning. As well, he found the hectic schedules of the couple of bus tours which he had previously taken to be very tiring.

Mr Osenton had never been on a river cruise before making the booking on Cruise 2. He wanted to make it the best possible holiday for himself and his wife and thought that it would probably be the last major holiday he would have because he was approaching complete retirement and giving up his part-time job.

His expectation was formed by watching television shows such as “Getaway” and “Postcard” on which Scenic cruises were often featured. As well, he carefully read the Scenic Brochure. He recalled noticing that the accommodation, food and drink to be provided would be of a standard of luxury that would be provided in a five-star hotel. He also recalls being told that the Cruise would be the trip of a lifetime and he would have ample time to relax and watch the river pass and explore villages and countryside at his own pace.

Mr Osenton selected Cruise 2 because he had not been to any of the places along the planned route before. He thought that 15 days was a good period of time to be away from home and that it would be enough time to relax and unwind and see a good number of new places in order to have a memorable experience.

He said, and I accept, this:

Mr Osenton was attracted by the idea of being able to do as little or as much as he wished to on each day, having a choice of activities and being able to choose to relax and stay on the ship if he wished.

He said this in his affidavit:

Mr Osenton was looking forward to enjoying having food and drink of a high quality which could be consumed in the comfort of his own cabin, which was appealing to him. This led to him to upgrade his cabin to ensure that he had an adequate private balcony for that purpose, and to watch the scenery go by.

In comparison to some previous bus tours which he had taken, he expected that those particular benefits would make for a much more enjoyable and rewarding holiday. Mr Osenton, because he was not in full-time employment, had saved up for the trip for over two years and had purchased the Cruise by utilising a large amount from his savings. He justified the amount of money being spent because he saw it as a reward for himself and for his wife for their many years of hard work.

He said that because he and his wife were paying a lot of money for the Cruise, it was “extremely important to me that Scenic deliver on its promise of a luxury service. I expected a luxury cruise for the ticket price which I paid”. Mr Osenton thought that the Cruise would be a treat for himself and his wife and that it “would be something that [he] could tick off of [his] bucket list”.

On the evening of 28 May 2013, whilst the Scenic Jewel was docked in an industrial area of Bamberg with a lot of other ships around it, Mr Osenton received the news from the Cruise Director that because river levels were rising, the excursions would be carried out from that location by bus. Mr Osenton was not at all happy with that news because he felt he had paid for a river cruise, not a bus tour. Furthermore, he was not happy that the uninterrupted cruising which he had been looking forward to was now to be interrupted and broken up. By the following day, after a long bus tour to and from Rothenberg, Mr Osenton had lost all hope that his expectations for an idyllic river cruise would be delivered. He felt fed up and could not wait to return to the comfort of his own home.

On that day Mr and Mrs Osenton, together with the other passengers, disembarked the Scenic Jewel early in the morning and travelled by bus for a total of four hours to Rudesheim. The trip was unpleasant. The buses all stopped at the location of some toilets – where there were long queues from the passengers on the buses waiting to use those facilities. Lunch had not been provided and passengers were sent to a shop to buy food. To top off this poor experience, Mr Osenton’s wife’s baggage was lost during this transfer and she was left without her belongings for a period of 24 hours after embarking on the Scenic Ruby, which was quite stressful for both Mr and Mrs Osenton.

By the time Mr Osenton disembarked from the Scenic Ruby at the conclusion of the tour, he felt worn down and stressed rather than feeling relaxed and content as he had expected. He was completely disappointed with the Cruise which was much worse than he had expected. He hated the Cruise and resented the experience that he had had.

That feeling was derived because the Cruise was a complete disappointment to him, and he feels that it was a waste of time and money. It had taken Mr Osenton a long time to save for the Cruise, to adjust his budget accordingly and he felt that his expectations of a luxury cruise which would be relaxing with beautiful scenery were completely unfulfilled.

He found the buses provided by Scenic were far from luxurious and were cramped. The bus trips were tiring as a result of the journeys being very long, and they were simply unenjoyable.

Of his experience, his said this, which I accept:

Mr Osenton found that when the Cruise was finished he was very disappointed and was looking forward to returning home to the comfort, routine and predictability of his life and work at home.

He said this of his overall experience:

Mr Osenton accepted that the first part of the Cruise had taken place generally in accordance with the itinerary. However, looking back, he was disappointed because the negative experiences and the stress and tiredness that he experienced remain the prominent memories in his mind. He has found that the experiences of the first days have completely faded in his memory and have been completely overtaken by the negative experiences of the last days.

I have kept in mind, in assessing the level of damages for disappointment, that the first part of the Cruise took place as intended by the itinerary. True it is that the weather was not particularly favourable on those days, but that is not a matter which I have taken into account in assessing damages for Mr Osenton.

However, I do accept that such were the negative experiences of Mr Osenton that they have overwhelmed the pleasant experiences of the first few days. As well, having regard to his expectation, the amount of money he was paying, in particular the almost 40% uplift from the base cabin price to obtain the benefit a Junior Suite, those negative experiences would significantly outweigh, in memory terms, his overall experience of the trip and his enjoyment of it.

I assess the damages for Mr Osenton’s distress and disappointment at $6,000.

Ms Ward booked to travel on Cruise 2 with her parents, Pauline and Michael, in about October 2012.

Ms Ward decided to take a cruise holiday with her parents because her father was suffering from mesothelioma, a terminal illness, had a limited lifespan and was severely restricted in his movements as he had only one active lung.

Ms Ward described in her affidavit the reason for taking this trip, which I entirely accept:

Ms Ward spent about one year between commencing her research to identify an appropriate cruise and making her booking for Cruise 2. She wanted to look at the range of holidays available and she needed time to save for the purchase of her ticket.

Ms Ward was looking forward to the Cruise because she expected, having read the Brochure, that the entire Cruise would be a rare opportunity for her to escape and take time out from her own busy schedule. At that time, she was working as a shift worker and as a carer for her father, and between those responsibilities she had little or no time to do things which she enjoyed. She was looking forward to the Cruise because it presented an opportunity for her to be able to take part in activities in which she was interested while at the same time being reassured, and having a degree of peace of mind, that her father would be enjoying himself as well.

She particularly chose a cruising holiday because, having regard to her father’s limited physical strength, she thought that it was the only option which would accommodate his needs and allow him to go at his own pace for the entire Cruise. She thought her father would find it enjoyable and relaxing and that he would be rested and rejuvenated after it. For that reason, a cruise was particularly important because her parents would be able to pack and unpack their belongings just once and her father would be able to retire to his room at his convenience.

She said this in her affidavit, which I accept:

Because she wanted the best possible cruise for her parents and for herself, she chose Cruise 2 because the Scenic Jewel which was the ship scheduled for the Cruise was described as one of Scenic’s newest ships.

Because of the expense of the Cruise, Ms Ward thought that it would be her last holiday for several years as she would need to save further funds for any future overseas trip.

The offering of a luxury standard of service was important to her because she saw that she was paying a premium price for the Cruise. Because she had always wanted her father to have a very enjoyable holiday, it was important that the Cruise delivered a luxurious standard of service. It was important to her that the Cruise was good value for money.

In anticipation of the Cruise, Ms Ward became quite excited. Her preparations for the holiday included planning what clothes she would need and buying new clothes that she thought were appropriate. Leading up to the Cruise she had been acting in a supervisory position at work and had just purchased a property which together meant that she felt rather stressed at the time. She was looking forward to the start of the Cruise to escape these stresses and the burdens of her everyday life.

Ms Ward’s feelings of disappointment were complex. Her experience of the Cruise was affected by the effect of the disruptions on her father and her hopes and expectations of what it was that her father would enjoy. Contrary to her entirely reasonable expectation that she would become increasingly relaxed as the Cruise progressed so that by the time the Cruise had finished, she would feel a sense of refreshment, the opposite occurred. The good experiences of the first few days quickly deteriorated when the disruptions set in, and Ms Ward ended up leaving the Cruise feeling stressed and disappointed. The alternative transportation and the experience provided by Scenic was a matter which left Ms Ward completely dissatisfied. As she put it:

She found that the buses which were provided were cramped, food and drink was of limited availability, and she observed her father looked sad and tired after each bus trip. This made Ms Ward feel particularly disappointed because her father’s lack of enjoyment made her feel more unhappy about the experience. From Ms Ward’s point of view, recovering from the period of disruption was made harder because of the downgrading of the ship from the Scenic Jewel to the Scenic Ruby. The Scenic Ruby was not of the same quality and was obviously a much older ship by comparison.

At the end of the Cruise, Ms Ward left feeling quite let down because she had not experienced the trip of a lifetime – which is what she had expected.

Ms Ward went on with her parents to experience other parts of Europe, but she felt that such was the negative experience and disappointment engendered by the Cruise that it hindered her ability to enjoy the balance of the holiday. She expressed her disappointment in these words, which I accept:

I keep in mind that Cruise 2 was to some extent affected by bad weather, which is not a matter for which compensation is properly payable. I also keep in mind that the initial part of the itinerary was conducted as the itinerary suggested it would be. Equally, having regard to Ms Ward’s experience, such was the extent of the negative experiences which created the distress and disappointment for Ms Ward that they outweighed most of the earlier experiences.

I keep in mind that this was a very special trip for Ms Ward in light of her father’s terminal illness, that it was an expensive tour and that she had particular reason to want it to work well for the benefit of her parents.

I assess the appropriate sum for damages for Ms Ward for distress and disappointment at $8,000.

Mr Lardner travelled with his wife, his sister and brother-in-law on Cruise 3. He booked for the Cruise about 12 months before it departed. At the time he took the Cruise, Mr Lardner was 67 years old. He was self-employed and was largely reliant for his income on his superannuation.

He had previously undertaken bus trips and tours but did not like moving around from hotel to hotel and having to be packed and ready to leave, often early in the morning.

He investigated a series of cruises and in discussion with his travelling companions selected Cruise 3. He observed that the trip was to take place on a brand-new ship with luxurious staterooms with balconies, well-designed public areas and dining spaces.

He expected that the scenery would be spectacular, and it was important to him to take in those scenes whilst relaxing on the ship. He said that he deliberately booked a cabin with a balcony and which would have a small lounge area where he could spend time and entertain guests such as his sister and brother-in-law.

He said this, which I accept:

Mr Lardner had a particular interest in the history of World War I and World Ward II, war history museums and memorials. On this trip he was particularly looking forward to having a memorable experience in Nuremburg because of the itinerary permitting visits to areas of significance to the Third Reich in the World War II and the World War II Documentation Centre.

Mr Lardner specifically booked a cruise rather than a bus tour because, as he was travelling in a group of four, it would have been much more difficult to have had conversations as a group on the bus and to share time together.

When he booked the Cruise, he had a particular condition which when exacerbated made walking quite painful. It was, however, not such a bother when he was resting or walking at a leisurely pace. For that reason, he booked on the Cruise expecting to have plenty of time to take in the various sites and attractions and avoid exacerbating his medical condition.

In dealing with his expectations, Mr Lardner said this, which I accept:

In preparing for the trip, Mr Lardner went to the effort of putting together a slide show with photographs of the places that were featured on the Cruise itinerary and showed it to his travelling companions so that they would each know what to expect. He developed a real enthusiasm for the Cruise.

The Cruise commenced on 25 May 2013 and continued until 28 May 2013 in accordance with the scheduled itinerary. On 28 May 2013, the Cruise Director told the passengers, including Mr Lardner, that the Cruise could not go any further due to high water levels. Thereafter, as my findings in my earlier judgment on this Cruise show, the travelling was mainly conducted by coach. This had the effect that in Nuremburg where, notwithstanding that it was raining, the time constraints placed on the travellers were such that Mr Lardner found that he could not see many of the places he had in mind due to having to meet the travel deadlines. Thereafter there was considerable travel by coach which Mr Lardner found to be long, tiring and stressful. Of his experience on Cruise 3, Mr Lardner said, and I accept, this:

Mr Lardner went on to say:

Mr Lardner added this as to how he felt at the end of the Cruise, sentiments which I am certain would have been felt by many others:

As earlier indicated, Cruise 3 was a significantly disrupted cruise. Mr Lardner’s experiences mirrored that disruption. His disappointment and distress related, in the main, to the disruptions, the lengthy and tiring coach tours, the feelings of being rushed at destinations because of the coach tours and the inability to move at his own pace.

In my view, Mr Lardner is entitled to damage for distress, disappointment and inconvenience in the sum of $9,000.

Mr Russell, who operates his own accounting and bookkeeping business in rural Victoria, booked for himself and his wife to travel on Cruise 3 about 12 months prior to the departure date. His airfares formed part of the package with which he was provided. Although he and his wife flew Business Class, those flights were included for a lower price as part of the deal negotiated when he booked on Cruise 3.

Prior to booking on this Cruise, Mr Russell and his wife had enjoyed one cruise together about five years previously in Egypt, with a different company, and they had travelled to Hong Kong for about a week to visit a friend. Other than those two overseas trips, they had not travelled internationally at all.

Mr Russell booked on Cruise 3 intending that it would be a second honeymoon for his wife and himself and that it would be the “holiday of a lifetime”. He was looking forward to a holiday which included a cruise on a brand-new ship, luxurious accommodation with butler service and lots of rest and relaxation.

As Mr Russell had not previously travelled to Europe, he was looking forward to discovering and exploring the history, the old buildings and cultural sites. Mr and Mrs Russell booked into a number of the advertised attractions and excursions, for which they paid extra, because Mr Russell felt that they would contribute to long-lasting memories of his “holiday of a lifetime”.

Mr Russell was expecting in undertaking the Cruise to be able to enjoy it as a very relaxing experience. He wanted to arrive home from the Cruise feeling totally refreshed and as though he had accomplished something. In particular, he noted that one of the significant benefits of the Cruise was that he would be able to unpack his bags once and stay in the same place for the entire duration of the Cruise. Because of that particular attraction, he chose a top of the range, dual balcony suite on the top deck of the ship.

The cost of the cabin increased the cost of the base cabin by about 66%.

In his affidavit, Mr Russell expressed his disappointment in these terms:

The particular features which caused Mr Russell’s discontent, dissatisfaction and consequent disappointment were:

He said this:

In the end, Mr Russell felt as though he had paid for a very expensive bus trip which was not good value for money at all. Mr Russell accepted that he had enjoyed the first few days of the Cruise, but those positive and enjoyable experiences were “long forgotten and buried by all of the terrible days that had followed”. Ultimately, he regarded his holiday as not the “holiday of a lifetime” but, rather, more of a “holiday from hell”.

Particularly having regard to the significant uplift which Mr Russell paid to enjoy a dual balcony suite on the Amadeus Silver, his feelings of disappointment and distress at the experience he sustained on Cruise 3 are well understandable and I accept his evidence about those feelings.

Taking into account all of these matters, I would assess the damages for distress and disappointment for Mr Russell at $9,000.

Mrs Watson booked for her husband and herself to travel on Cruise 3 with two good friends, Mr and Mrs Hearne. Mrs Watson was employed on a casual basis and had made the booking in around September 2012, about eight months before the Cruise departed. Mrs Watson had not travelled in Europe before this trip and, at the time of booking the Cruise, she and her husband had just relocated from a regional city in NSW to Melbourne. This was a particularly difficult and stressful relocation and it caused them to look forward to a relaxing and stress-free holiday. Mrs Watson enjoyed travelling with Mr and Mrs Hearne, whom she regarded as good friends.

Mrs Watson commenced seeking information about the Cruise approximately 12 months prior to making the booking.

Mrs Watson was attracted to the Cruise because it was 15 days long, which she thought would allow for her to be fully immersed in the luxurious experience and in particular, it would be important to have a cruise of that length for her husband who had been working particularly hard. Mrs Watson specifically chose Cruise 3 because it meant that her and her husband’s 25th wedding anniversary would fall on the day when the Cruise was scheduled to sail through the Rhine Gorge and her birthday would fall on the day when the Cruise was scheduled to be in Würzburg in Germany, which was a particular attraction for her. She expected that these features of the Cruise, having regard to those special events, would be a great way to celebrate those events and to create special memories. As well, Mrs Watson was looking forward to sailing into Budapest in the evening, past the famous Parliament buildings which would be a spectacular to end her “once in a lifetime luxury cruise”.

Mrs Watson and her husband had previously taken a trip largely by coach and train in Canada during which they had to pack and unpack at every stop. One of the main reasons why she decided to undertake a river cruise on this occasion was to avoid doing that, and she would be able to unpack once for the two weeks and settle in and enjoy the holiday. She regarded the Cruise as a special treat for her husband and herself.

Mrs Watson and her husband saved for the Cruise over a period of about three years by putting all her income, which she earned in a casual role as a medical receptionist, towards their travel cost. This involved undoubted sacrifices on their part.

She said this of what her expectations were:

Mrs Watson in her evidence describes the extent of her feelings as the Cruise unfolded, and her feelings of disappointment and distress, which I accept.

There are two matters which to me highlight the feelings of disappointment and distress. When the Cruise passengers travelled to Vienna to board the Scenic Rhapsody where they were to be accommodated for a few days, although there was no cruising, Mrs Watson felt that she could not fully relax “because everything was up in the air and there was a lot of uncertainty about what was going to happen in the coming days”. That fact meant that she remained concerned about further disruptions to feel at all relaxed. The Scenic Rhapsody was an older ship older than the Amadeus Silver which she had booked and was not up to the standard which she was expecting. On another day she and her husband walked from the ship for about an hour into Vienna on their own. Mrs Watson did that because one of the features which had become prominent on the Cruise was that there was a negative atmosphere amongst the passengers, and she wished to avoid that negativity by taking the bus provided by Scenic.

The accommodation and food in Budapest were particularly disappointing for Mrs Watson.

The matters that particularly caused Mrs Watson disappointment and distress, in addition to the absence of cruising and sightseeing of the kind that she had anticipated, were that she was unable to unpack her bags once and stay in the same accommodation throughout the Cruise and that the disappointment and distress of the second half of the Cruise overshadowed the days of cruising at the start of the Cruise, which she found enjoyable. She thought that the buses were uncomfortable and because they had no seatbelts, she felt particularly unsafe when travelling in them in light of the wet weather conditions. She found travelling on the buses for long periods throughout the day very tiring and to her it made Cruise 3 feel like a low-quality school excursion.

At the end of the Cruise, Mrs Watson felt very flat. She did not feel relaxed and rejuvenated at all and when asked, after she returned home, how her river Cruise was, she described it to her many friends as being “the bus trip from hell”. This well reflects Mrs Watson’s feelings and reactions to the disappointment and distress of the Cruise which was provided to her.

Mrs Watson felt that she had received the opposite of what she had expected. She had thought she would be fully immersed in luxury and relaxation on the Cruise but found that at the end of the Cruise she felt cheated because of the lack of facilities, services and enjoyment which had been provided.

The passengers on Cruise 3 were significantly affected by the disruptions and received services which had a low value compared with the services that they had paid for.

I accept Mrs Watson’s evidence about the distress and disappointment which she felt.

I would assess damages for that distress and disappointment at $9,000.

Mr Cairncross was a man who, by reason of his work, was accustomed to doing a significant amount of international travelling, including long international flights, short stays in multiple countries and return trips to Australia.

About six months or so before Cruise 4 commenced, he and his wife decided that they wanted to go on a river cruise through Europe so that they could have a holiday together to relax, take a break from work, pamper themselves and enjoy each other’s company. This was particularly important as Mr Cairncross was frequently away from his wife on business trips throughout the year.

In particular, having regard to the way in which he usually travelled overseas for business Mr Cairncross was looking forward to an experience where he could relax and unpack his bags once throughout a 15-day trip. He was looking forward to everything being taken care of for him and not having to worry about moving from one place to another.

Initially, for the first few days of Cruise 4, there was no difference to the itinerary. Thereafter, on each of the subsequent days, there were major itinerary changes, and the Cruise did not, in effect, take place. One of the disappointing features of this Cruise for Mr Cairncross was that he could not obtain any clear information from the staff on board the Scenic Jewel when it was docked in Bamberg as to what was happening. After he and his wife changed ships on two occasions so that they arrived on 5 June 2022 in Krems to board the Scenic Sapphire, Mr Cairncross noted that the ship was moored in an industrial area without any views, and that there was a foul smell pervading the ship.

On the morning of 5 June, Mr Cairncross sought information from the Cruise Director about how long the passengers would be on board the boat in Krems, when it would be leaving and what was to happen with the Cruise. The Cruise Director informed Mr Cairncross that he did not know what was happening and was unable to offer any more information to he and his wife. Mrs Cairncross found this to be most upsetting. At that stage, having regard to the fact that they were not able to undertake any cruising, and what they felt was a lack of transparency from Scenic as to the actual changes of the itinerary and when they would be cruising again, Mr and Mrs Cairncross decided to leave the Cruise. The poor weather added to their decision but was not the reason for it. They incurred significant additional expenses for the further accommodation and travel. They travelled independently on to Vienna and then on to Budapest and then re-joined the Cruise on the last night of it in Budapest so that they could resume the second leg of their holiday.

Such were Mr Cairncross’ feelings about what had happened on this Cruise that he wrote to Scenic at the time in terms which articulately and forcefully expressed that disappointment. Those contemporaneous expressions were in my view entirely justified and reasonable. I accept those descriptions which were consistent with Mr Cairncross’ evidence.

For Mr Cairncross, his feelings of disappointment centred upon the fact that instead of having a relaxing cruise, he was subjected to long, boring and uncomfortable bus trips, ships being berthed in stinking industrial ports and a sense of becoming more stressed and frustrated with the experience as the Cruise progressed. He said in his second affidavit:

Mr Cairncross was cross-examined both at the first hearing and during this hearing, however I formed the opinion that his evidence was truthful and accurate on the issue as to how he and his wife felt and the extent of their disappointment and distress. After all, such was their feeling of disappointment and distress that they left the Cruise and were prepared to incur further expenses to travel to Vienna and on to Budapest in their own way rather than having to experience the negative experiences of the Cruise.

Taking all of these matters into account, I would assess damages for Mr Cairncross’ disappointment and distress at $10,000.

At the time she booked Cruise 4 and at the time of cruising, Ms Forrest was a school psychologist. She has since retired. She booked the Cruise about 12 months before its departure and travelled on it with three of her friends.

At the time she made the booking for the Cruise, Ms Forrest was a single parent. She had supported her daughter through her university degree and her daughter had recently obtained employment and moved out. She had a number of other financial commitments but made the decision to save for a river cruise. She had not previously travelled on a cruise, although she had been on a multi-day bus tour a couple of years before booking the river Cruise. The Cruise was only her second time travelling overseas, and she wanted to have a relaxing time to enjoy with her friends.

Ms Forrest researched the Cruise carefully before booking – it took her a long time to book the Cruise because she thought it was unlikely that she would be able to visit Europe again.

Because she had not travelled to Europe before, she was particularly looking forward to the Cruise and the tour. She was looking forward to experiencing a completely different way of life by visiting medieval towns and enjoying the scenery. She was particularly interested in Budapest and exploring it and learning about it.

Having regard to her family circumstances when she was growing up and the fact that she was a single mother who had supported her daughter at the same time as having significant financial commitments, Ms Forrest did not ever really think that she would be in a position to travel internationally and so she was quite proud of the fact that she had saved money to experience all of the features of Cruise 4. In those circumstances, it was particularly important to her that the Cruise was all inclusive and, therefore, she could relax and enjoy the whole trip without having to worry about budgeting extra money, changing accommodation and otherwise being stressed.

Putting it differently, Cruise 4 was for Ms Forrest the most extravagant purchase that she had ever made and she was looking forward to care being taken of her for a change, and indulging and spoiling herself.

It was a particularly important consideration for her that she would unpack her bags only once and stay in the same five-star accommodation for the entire trip.

Ms Forrest made sure that she booked a cabin with a balcony because she wanted to be able to sit outside and enjoy the privacy and beautiful views. That was a particularly important factor for her. She was also looking forward to the various dining options and the all-inclusive drinks package.

As is clear from earlier in my judgment, Cruise 4 was a cruise that was significantly disrupted after the first few days. Ms Forrest described her disappointment and distressed feelings on the Cruise in some detail. I accept what she has recorded in her affidavits. By about 7 June, which was the twelfth day of the fifteen-day Cruise, Ms Forrest was feeling very sore. She had found that the bus journeys were cramped, and she felt like she had been constantly packing and unpacking and changing accommodation throughout the Cruise. She felt that this was taking a toll on her body, particularly as a result of a pre-existing health condition she had, namely bursitis in her right hip and shoulder, which caused her significant pain.

Cruise 4 was a complete disappointment for Ms Forrest as she did not have the experience that she had been expecting at all. The most disappointing aspect of the Cruise was that she was unable to experience the luxurious comfort and relaxation which she had anticipated. As well, she found having to carry her own suitcase for a fair distance when embarking and disembarking from the various ships was extremely difficult on her body due to her pre-existing health condition.

Ms Forrest accepted that the first few days and some later experiences were enjoyable during the Cruise. However, she thought that those experiences were completely overshadowed by all of the disruptions that were occurring and felt that the positive experiences and enjoyment were only temporary. She felt stressed throughout the Cruise.

She said this in her affidavit:

Ms Forrest has continued to feel disappointed and distressed by the entire experience. She finds that she is often reminded of the poor experience she had when advertisements for river cruises appear on television. In particular, acknowledging that she was an anxious traveller before the disruptions occurred on the Cruise, Ms Forrest feels that she now has additional anxiety about travelling and has lost any confidence she had in undertaking any organised tour.

Accepting as I do, and as Ms Forrest did, that there were some features of this Cruise which she found enjoyable, I am nevertheless satisfied that those positive experiences were far outweighed by the negative experiences on this Cruise.

I would assess damages for disappointment and distress for Ms Forrest at $11,000.

Mr Holgye contracted polio as a child and, as a consequence, at the time of Cruise 4 walked with a caliper on his leg and with crutches. His condition limits the amount of walking he can do on any day.

Mr Holgye had previously experienced a bus tour and as a result of his disability found it extremely difficult and tiring, and so he decided with his wife that they would take a river cruise in Europe because it would allow him to experience the sights of Europe without having to walk great distances on his crutches.

Mr Holgye and his wife booked Cruise 4 in early October 2012. At that time, it was particularly important to him that the majority of the Cruise took place on board the ship and that the coach trips were short and sporadic over that period so he would not have to do too much walking.

Shortly after sailing from Amsterdam on 28 May, Mr and Mrs Holgye were able to observe a number of large mature trees which were growing out of the water and that there were obviously rising river levels. On that evening, during the port talk, the Cruise Director informed the passengers that there were problems with rising river levels which would affect their ability to sail on the ship and that there would be some revisions to the current itinerary.

On 31 May, passengers on Cruise 4 were required to disembark the Scenic Ruby and travel by coach to embark in Bamberg on the Scenic Jewel. The coaches were located about 1km up a hill from where the Scenic Ruby was moored. Mr Holgye found that particularly difficult on his crutches and that it was very difficult to get up and down the stairs on the coach. As a result of the lengthy coach tours on that day, the minimal rest and having to use his crutches, by the time he arrived at the Scenic Jewel he was extremely tired and had sore hands.

Mr Holgye’s evidence, which is careful and detailed, records all of the difficulties which he had with the arrangements which were made to travel by bus, to embark and disembark from different ships and having to endure shorter periods of time during excursions because of the need to re-join buses. I have no hesitation in accepting Mr Holgye’s evidence.

Upon returning to Australia, Mr Holgye engaged in correspondence with Scenic. In a letter sent on 23 July 2013, he said this:

As might be imagined, it was extremely important for Mr Holgye in booking Cruise 4 that he would be able to travel through the European countryside without having to pack and unpack on a daily basis. He knew that he would have difficulty moving luggage around and did not want his wife to have to attend to that task. He had also booked a larger cabin to enable him to have more room to move around due to his physical disability.

He described his expectations in this way:

In his second affidavit, Mr Holgye said this:

He went on to say:

Mr Holgye continues to have feelings of distress and disappointment at his experience.

A relaxing river cruise was a particularly important choice for Mr Holgye to make in light of his physical disability. He is undoubtedly disappointed at how his holiday went and distressed with what he had to endure.

Mr Holgye is entitled to damages for his distress and disappointment which I would assess in the sum of $12,000.

Ms Komiyama booked the Cruise from Canada where she lived in British Columbia. She intended to travel on Cruise 4 with her husband and four of their friends. Ms Komiyama and her husband, Bruce Tattrie, flew from Vancouver to Amsterdam, arriving a couple of days before Cruise 4 commenced and flew home from Budapest a couple of days after the Cruise finished.

Cruise 4 was the first occasion when Ms Komiyama had travelled on a river cruise. She had previously been on four ocean cruises – none of which was with Scenic.

Ms Komiyama and her travelling companions were all about the same age. She and they intended Cruise 4 to be a celebration of their collective 60th birthdays. As well, she and her husband were celebrating their 35th wedding anniversary while on the Cruise.

Ms Komiyama spent between six and 12 months gathering information about which cruise she wished to go on and then booking the Cruise. It was a complicated effort because each of her travelling companions had to organise time away from work so that they would be able to travel together. As well, Ms Komiyama was a carer for her mother, who suffered from dementia. In order to get away on the Cruise she had to undertake the process of finding a suitable substitute carer. She found this stressful.

Ms Komiyama expected that if she booked a cruise with Scenic, she would get to experience the wonderful scenery set out in the Brochure and the relaxation on board a luxury cruise ship as described in the Brochure. She carefully read the Brochure to decide what itinerary would suit her and which would be appropriate for her travelling companions as well. She was looking forward to seeing smaller towns and cities and exploring them at a leisurely pace. She also anticipated that she would be able to enjoy the views whilst cruising from the balcony on her cabin.

Because she was looking forward to the view, Ms Komiyama and her husband paid for an uplift in their cabin from the base cabin price.

The other matter which attracted Ms Komiyama’s attention was the range of excursions set out in the itinerary. She was particularly looking forward to some of the excursions. One was to Rothenburg down what was described in the Brochure as the “romantic road”. She was looking forward to a peaceful and relaxing excursion with beautiful scenery to a quaint town.

The other excursions that she was particularly looking forward to were those to Cesky Krumlov and Melk. Ms Komiyama’s daughter had previous travelled to Cesky Krumlov and she often described to Ms Komiyama and her husband how much she enjoyed visiting the city and how beautiful it was.

The Cruise was a very expensive purchase for Ms Komiyama and her husband. They had never spent that amount of money on a cruise before. However, because it was to be a special celebration, they decided to make the expenditure.

Cruise 4 was for Ms Komiyama a special, and not just an ordinary, holiday and, so, she wanted to enjoy the best experience possible. She was also looking forward to the opportunity to enjoy the fine dining and the all-inclusive drinks package which was offered.

Because of her role in caring for her mother, who suffered dementia, Ms Komiyama was particularly looking forward to a relaxing treat to be away from that burden. She expected that by the time the Cruise was over, she would feel extremely relaxed and as though she had had a rewarding celebration for her 60th birthday and 35th wedding anniversary.

One matter of importance to Ms Komiyama was that she was looking forward to the ability to pack and unpack her bags on one occasion only, which was to her an essential factor in going ahead with the booking.

Ms Komiyama’s experience of Cruise 4 was similar to those passengers about whom I have already written. This Cruise was undoubtedly significantly disrupted. On 31 May, when the passengers disembarked from the Scenic Ruby with their luggage, Ms Komiyama recalled that they had to walk about 1km uphill with their luggage in the pouring rain to board a bus. That experience alone was sufficient for her to conclude that the promise of a luxurious experience had “gone out the window”. When the passengers on Cruise 4, including Ms Komiyama, arrived to embark on the Scenic Jewel in Bamberg, Ms Komiyama recalled that it was docked in an industrial port and there was an unpleasant smell in the air. She was taken aback by this new docking location in an industrial harbour. She did not have a view of the river as she expected but, rather, had a view of an industrial setting without any enjoyable scenery.

Being docked in Bamberg felt to her as though she was in the middle of nowhere. Ms Komiyama found that, as a consequence of being bussed to various of the excursions rather than accessing them from the river, the amount of time available to enjoy those excursions was significantly curtailed. It meant that she felt rushed whilst undertaking the excursions.

Ms Komiyama found the bus tours generally to be long and she found the seating on the buses cramped and uncomfortable. She was very disappointed to have missed out on cruising the Rhine-Main-Danube canal and a large section of the Danube River. She found that most of the time spent on bus journeys had been spent on motorways so that there was little or no scenery and no opportunity to take photos of the countryside.

Ms Komiyama said, and I accept, that she found Cruise 4 to be a complete disappointment, and she was completely dissatisfied with how the Cruise delivered on the promise of being immersed in all-inclusive luxury and high‑quality food and drink. She found the most disappointing aspect of Cruise 4 was that she was unable to partake in a river cruise which was what she had anticipated and for which she had paid a substantial sum of money.

She was not relaxed at the end of the Cruise. She did not have the opportunity of only unpacking once and enjoying a single cabin throughout her Cruise and holiday.

In describing how she felt at the end of the Cruise, Ms Komiyama said, and I accept:

Rather than feeling relaxed when she arrived home, Ms Komiyama felt tired and disgruntled. Ms Komiyama’s feelings of disappointment continue up to now. Of those feelings, she said this:

I observe that Ms Komiyama and her travelling companions, because they booked in Canada, paid for their holiday in Canadian dollars.

I propose to make an award of damages for distress and disappointment in Australian dollars, as this will enable consistency in this judgment for all such awards. I was not asked to make any different assessment of damages for passengers who booked in countries other than Australia. It will be a matter for the parties to decide what the consequence of this approach is to be in terms of any formal orders which they seek to be made.

Taking into account the special nature of the trip, the particular inadequacies of Cruise 4 and Ms Komiyama’s feelings, I would assess her damages for distress and disappointment at $10,000.

Mr Edwards was at the time of Cruise 4 in his early 80s. He wished to travel by sitting in his cabin, relaxing and enjoying the scenery and sights from his cabin. He had, together with his wife, opted for a balcony suite. The balcony suite which he booked represented about a 35% uplift in the price of the base cabin.

By booking the Cruise, Mr Edwards felt he was treating himself and his wife “to a trip of a lifetime”. He had retired about 15 years before the Cruise and had not taken an opportunity to go on a luxury holiday. Mr Edwards and his wife had not been to many of the places in Europe which the itinerary for Cruise 5 visited. And he thought, having regard to his age and years of hard work, that Cruise 5 would be a “fabulous opportunity” to relax. Although he had taken bus tours in the past, he thought that this Cruise would be a far more relaxing way to travel.

It took between four and six months for Mr Edwards to seek information about the Cruise and then make a booking. He compared the various cruise packages which were on offer and chose Cruise 5 with Scenic because it appeared to him to be of a higher quality than cruises offered by its competitors.

Because Mr Edwards and his wife were retired, the Cruise was an expensive purchase for them. Accordingly, he expected to experience a luxury standard of service and to experience the trip of a lifetime. As an older traveller, it was particularly important to Mr Edwards to be able unpack his bags once and stay in the same accommodation throughout the Cruise. For Mr Edwards, the purpose of the holiday was to relax and enjoy the beautiful scenery from his cabin.

As mentioned earlier, Mr Edwards opted for a balcony suite, and this was the particular feature of the Cruise that he was looking forward to the most. He expected to be able to enjoy the scenery from his balcony regardless of the weather and that he would be able to retire to his cabin at his own convenience whilst still experiencing the scenery.

He was looking forward to the Cruise which, as I have mentioned, was expensive for Mr Edwards. He thought it would validate all of the hard work that he had put in over the years of his working life.

It is to be recalled that after the first four days of the trip, Cruise 5 was significantly disrupted and required the passengers to change ships twice so that they were accommodated on three different ships.

Of his enjoyment, Mr Edwards said, and I accept, this:

Again, as is not uncommon with the passengers whose claims I have been asked to assess, Mr Edwards accepts that there were several days at the start and at the end of the Cruise where there was no difference to the itinerary and the Cruise was able to take place as scheduled. However, such was the extent of Mr Edwards negative experiences and his disappointment, which deepened throughout the Cruise, he left the Cruise feeling completely let down by the ruined experience. He said this in his affidavit, which I accept:

Mr Edwards was completely disappointed in his experience of Cruise 5. He thought it was a complete waste of money and he did not get the sort of experience that he was promised in the Brochure. He said that upon returning home, he was profoundly sad and melancholy.

I accept that many of the days on Cruise 5 were wet and that, of itself, would have affected the passengers’ enjoyment of various excursions. However, the sense of disappointment and distress and sadness that Mr Edwards felt was not due to the wet weather. It was due to the failure of the Cruise to provide to him the services which were offered in the Brochure and to provide a once in a lifetime cruising experience.

I assess Mr Edwards’ damages for distress and disappointment at $8,000.

Mrs Targett decided she would travel on Cruise 5 with her friend, Mrs Field. She booked her place on Cruise 5 about 12 months before the Cruise commenced.

Although Mrs Targett had travelled with her late husband every few years, that travel had usually been to the United Kingdom or South Africa to visit their respective families. None of those overseas trips involved any holiday tour packages.

At the time she booked the Cruise, she had been relatively recently widowed. She decided she would spend some time in the United Kingdom visiting friends and family, and then take the Cruise.

Mrs Targett was looking forward to a luxurious experience, including luxury accommodation, food and drink, and a comfortable and convenient way to travel which would give her plenty of time to take in the river scenery. She saw the Cruise as a good way to make new friends and to socialise.

In particular as a consequence of her previous travel experiences, Mrs Targett knew that she wanted to avoid the responsibility and necessity of packing and unpacking things on a daily basis, of living out of a suitcase and, in particular, she wanted to avoid the struggle of having to move a suitcase from one place to another.

Her decision to take the Cruise was intertwined with her personal circumstances. She said this in her affidavit, which I accept:

Mrs Targett chose the Cruise because she wanted to see one of Europe’s great river systems in comfort and style. She had not been to most of the places which the Cruise proposed to visit and was generally looking forward to the entire experience.

The Cruise was an expensive purchase for Mrs Targett who had been retired for some time. She did not have a significant income, but she decided nevertheless to take the Cruise because she wanted to be “immersed in all-inclusive luxury experience, with high quality food and drink”. She expected, having regard to the price she had paid, that she would have a special and memorable experience.

The first four days of Cruise 5 proceeded in accordance with the itinerary. Thereafter, up until the last day, there were major itinerary changes and the passengers on Cruise 5 travelled, or were accommodated, on three different boats.

Mrs Targett’s experience and enjoyment of the Cruise commenced to deteriorate when the ship docked in Krems. She found that when travelling by coach there was nothing to do and nothing interesting to look at. Her disappointment increased and any positive experiences were soon forgotten. She was disappointed that she did not get to cruise down the river, and instead was having to spend time on long, boring, bus trips. She found that it was impossible to socialise and make friends on the bus trip because people were sitting in pairs and from that position, socialising of the kind one would have on board a cruise ship could not occur.

As well, her observation was that none of the passengers on the Cruise appeared to be happy. They sat around in pairs or small groups, did not seem to mingle and they had dour or sad faces, all of which contributed to Mrs Targett’s disappointment.

Mrs Targett was most dissatisfied with her cruising experience on Cruise 5. She was disappointed because she was unable to unpack her bags once and stay in the same accommodation throughout the Cruise and retire to her own private cabin at any time. She was disappointed that they did not explore much of the river and missed many of the attractions about which she had read. In particular, she was disappointed to miss the entire length of the Danube River after the first ship reached Melk and the Rhine-Main-Danube Canal. She missed out on the experience of going through the locks which she had anticipated as a unique experience. This caused her considerable disappointment. As she put it herself:

As she said:

By the end of the Cruise, she was completely disappointed and quite upset. She regarded the experience as a horrible one that she just wanted to put behind her. In light of her advanced age, Mrs Targett continues to feel disappointment. She is physically disabled now and may never have the opportunity to take another cruise.

Mrs Targett’s circumstances were unique. Her age, her limited income and the relatively recent loss of her husband all combined to ensure that the disappointment and distress she felt from booking and taking Cruise 5 was quite acute. She is not able to repeat the experience and have an enjoyable cruise again. She suffered from quite intense feelings of sadness, disappointment and distress.

Of course, the weather was not favourable during Cruise 5, but that is not the source of Mrs Targett’s disappointment. On the contrary, it was that she did not get the experience and the services which were promised to her.

In my view, Mr Targett’s disappointment and distress is at an upper level. I would assess it at $10,000.

Mrs Wilkinson travelled with her husband on Cruise 5. At the time of the Cruise she was retired, having previously been employed part-time as a secretary at a medical practice.

Mrs Wilkinson researched the Cruise she wished to take, and it took her about six months between commencing that research and booking the Cruise.

She found the proposed Cruise to be very appealing because of the idea that she could stay in premium accommodation on board a most luxurious cruise ship, spending her days either relaxing on board or else on educational excursions. She was particularly excited that the Cruise would visit Cologne as she had been born in Germany and had a cousin living there whom she had not seen for many years. They had made an arrangement to catch up for lunch.

Because she was retired, the Cruise was a very expensive purchase for Mrs Wilkinson. It was the most amount of money she had ever spent on a holiday. It required a lot of saving and budgeting. She did not think she would be able to repeat the experience.

Although Mrs Wilkinson had taken bus tours in the past, on this occasion she chose a cruise because she was attracted to the idea of having one place of accommodation and then cruising to other locations.

Due to a health condition, Mrs Wilkson found travelling on aircraft and buses for prolonged periods to be quite uncomfortable. That was why she picked this Cruise.

Mrs Wilkinson and her husband were both keen photographers and having looked through the Brochure, particularly the views which were portrayed from the cabins and private balconies, they decided to book a Panorama Balcony Suite which represented a 40% uplift over the cost of a base cabin on the Cruise.

It was particularly important for Mrs Wilkinson and her husband to enjoy good food and fine dining and a good selection of wine. She looked upon this holiday as a once in a lifetime experience.

The first few days on Cruise 5 proceeded in accordance with the itinerary, but after the ship departed from Vienna, the Cruise was interrupted. By the time 1 June came, the itinerary was disrupted in significant ways and except for the last day in Amsterdam, did not really resume as foreshadowed. Journeys to particular excursions were longer than they would have been had the Cruise continued; the docking locations in Krems and then Bamberg were industrial and extremely unattractive; the mood amongst the passengers was quite dour; and Mrs Wilkinson thought that the atmosphere was quite hostile as nothing was going to plan. She said that to her the trip was beginning to feel like a series of unpleasant surprises which made her feel anxious.

On the first occasion when the passengers were required to disembark from the Scenic Sapphire to change ships, Mrs Wilkinson found the change to be very disorganised and rushed and very stressful. It was a very long day on a bus via Nuremberg to get to Bamberg where the ship was docked in an equally unattractive industrial location to that in Krems.

Mrs Wilkson said this, which I accept:

The passengers were again required to change ship after two nights in Bamberg. To do so they had to take their luggage and walk about 500m to get a bus, which was a long trip to Mainz. Again, the docking location was an unpleasant one.

Although Mrs Wilkinson was able to catch up for a short time with her cousin in Cologne, the relaxed lunch that she had planned did not take place because of the way in which the cruising of the ship occurred.

Mrs Wilkinson was particularly disappointed with the amount of cruising that had been missed. She had booked a Panorama Balcony Suite expecting that she would be able to fully take in the scenery throughout the journey. However, in the case of Cruise 5, much of the river was completely skipped. Mrs Wilkinson found that when they were on the ship, her balcony was practically useless. She found that they were required to spend many hours sitting on buses to travel to destinations which in turn meant that the scheduled amount of time at each location was significantly reduced. The buses were uncomfortable. There was no tour guide on the buses to provide any sort of information about where they were and what they were visiting.

Mrs Wilkinson said, and I accept:

By the time the Cruise finished, Mrs Wilkinson was completely disappointed with how the Cruise had eventuated. She found that, because she was unable to relax and enjoy the river views and scenery, she was very disappointed. In particular, she was disappointed at how the Cruise completely failed to deliver what had been promised.

Mrs Wilkinson continues to be disappointed by the absence of any positive memories and photographs which she had hoped to take on her once-in-a-lifetime trip.

Whilst undoubtedly the adverse weather did not assist Mrs Wilkinson to enjoy the Cruise, the fact of the matter is she was disappointed because she did not get what she was promised, namely, a luxurious cruise along the main waterways of Europe, experiencing the luxury of Scenic ships with fine food and dining in a variety of locations, and being able to relax whilst all of that happened. On the contrary, she found the experience stressful, unenjoyable and, in effect, a long coach trip.

I assess Mrs Wilkinson’s damages for disappointment and distress at the events which occurred at $8,000.

Mrs Arnott and her late husband, Jeffrey, booked on this Cruise in about August 2012. They were accompanied by four friends. Two of their friends left the Cruise half-way through because of a family bereavement.

At the time of the Cruise, Mrs Arnott and her husband were both 63 years old. The late Mr Arnott was in remission from prostate cancer for which he had been receiving treatment for some years. Because of this health condition, it was particularly important for the late Mr Arnott to always be close to a bathroom. Prior to booking on Cruise 6, Mr and Mrs Arnott had undertaken a number of ocean cruises, including with Scenic. They had also previously experienced a number of bus tours. Mrs Arnott found them, whilst enjoyable, to be rather hectic and she was keen to avoid that by booking on Cruise 6.

Mrs Arnott did a good deal of research about undertaking a river cruise and was looking forward to the Cruise in particular because she and the late Mr Arnott had always been accustomed to enjoying recreational boating activities throughout their lives. Having done a hectic bus tour of a number of cities in Europe, Mrs Arnott thought that this particular trip would be one where she and her husband could relax and enjoy themselves with their travelling companions from the comfort of the cruise ship with the flexibility which it provided, particularly for the late Mr Arnott to come and go as he wished from his cabin and to be able to use the private toilet facilities in his cabin.

Mrs Arnott was also looking forward to being served, and enjoying, high quality food and drink and being able to share a social dining experience with her fellow travellers. In the past, on previous cruises, Mr and Mrs Arnott had particularly enjoyed mixing with their fellow travellers and meeting new people who had similar interests to theirs.

Mrs Arnott said, and I accept, this:

Mrs Arnott was particularly looking forward to cruising into Budapest and enjoying that city. She and her late husband had also discussed, and were looking forward to, the variety of the excursions which were offered from Cruise 6.

Five days (including the first and last) for Cruise 6 proceeded without any difference to the itinerary. There were significant itinerary changes on each of the other days, some fewer than others.

The Cruise was first interrupted when the ship docked in Mainz on 1 June, which was the fourth day. The passengers remained in Mainz until the ninth day of the Cruise, when they were transferred by bus to Vienna onto a different ship. At Mainz, the cruise ship was docked alongside other cruise boats. When Mrs Arnott opened the balcony doors of her suite, she breathed in a strong smell of exhaust fumes and neither she nor her husband felt able to use the balcony during the time the ship was docked in Mainz. Being able to use the balcony and stand out in the fresh air was something which both she and her late husband were looking forward to.

In advance of the transfer to Vienna, the passengers on Cruise 6 were required to have their bags packed and ready outside their cabin the night before the departure by coach. The day of the transfer was an early start which required the passengers to have been awake and had their breakfast in sufficient time to embark on the bus at or before 8am. On that trip to Vienna, lunch was not provided and passengers at the stopover were required to fend for themselves and find and pay for their own meals. The rest stops on that bus trip were mainly at the roadside, or else at petrol stations.

Mrs Arnott and her husband, together with the other passengers on Cruise 6, then spent four nights docked in Vienna. Again, they were unable to open their balcony door and enjoy the balcony feature. They had also missed out on a considerable length of the promised Cruise. They were unable to retire to their cabin to enjoy the scenery and were very disappointed at not being able to relax and watch the passing scenery and castles along the headlands and the river.

Finally, they were required to take a bus to Budapest and both she and her late husband again felt extremely frustrated because they had not paid for, nor been willing to undertake, a bus tour around Europe. Again, on the way to Budapest they were required to find their own meals. In one location, they were required to walk down a steep embankment (which was physically challenging) then cross a main road and climb under a fence to access a place which supplied food.

Upon arrival in Budapest, they were accommodated in a hotel. The passengers on Cruise 6 were spread across a number of hotels and Mr and Mrs Arnott were not accommodated in the same hotel as their remaining travelling companions. It was not possible for them to share the experience of Budapest which they had been looking forward to together with their travelling companions.

Mrs Arnott was completely disappointed with the Cruise. She and her husband thought that it was terrible and, having regard to the sums of money which they had paid, they were completely dissatisfied with what they had received.

This was to be a very different cruise for Mr and Mrs Arnott than their previous holidays which had often involved camping and road trips and recreation on the water. They were looking forward to a luxury river cruise, enjoying the passing scenery, engaging with their fellow passengers and enjoying good food and wine.

In particular, having regard to his interest in boating, the late Mr Arnott was looking forward to seeing how river locks operated, and he was exceptionally disappointed with not being able to see that occur. Their principal interest in the Cruise was to be on the water. In fact, they were provided with a road trip which was not what they were expecting, and which meant that they were both very disappointed.

Mrs Arnott did not find the Cruise at all relaxing. Because they were changing ships and being accommodated in hotels, she had to organise her belongings for each different stay without knowing when or what the next hotel or cruise ship swap would be. She was particularly annoyed at how they were unable to unpack their belongings once and stay in the same accommodation throughout the Cruise. At the end of the Cruise, both Mr and Mrs Arnott jointly concluded that they were happy to be getting off the ship because of their disappointment and their distress at the way in which their enjoyment of Cruise 6 had been ruined by missing out on all of the experiences which they had been look forward to.

Mr Arnott died about 11 months after the Cruise. The effect of this has been for Mrs Arnott that when she looks back on the Cruise as their last significant holiday together, her feelings of disappointment are rekindled because she had lost the opportunity of a relaxing river cruise with her late husband where they could both sit on the balcony, observe the scenery, enjoy each other’s company and the company of their travelling companions and new friends. She continues to feel that that special holiday opportunity is one that she can never retrieve.

In her affidavit, Mrs Arnott noted that she received a refund of $500 from Scenic about 12 months after the completion of Cruise 6. However, a refund was not paid to her with respect to her husband. In answer to a question in cross‑examination, Mrs Arnott agreed with counsel for Scenic that Scenic had given her a refund of “about $1,000” in respect of Cruise 6. She also agreed that she had travelled on a further Scenic cruise in 2015 or 2016.

The sum of money and the dates of that cruise were different from the dates which had been set out in her affidavit. The connection via the audio-visual link by which Mrs Arnott’s evidence was taken did not function particularly efficiently and some difficulty was encountered with the remote cross‑examination in referring Mrs Arnott to the relevant documents. It seems to me that, doing the best I can, the amount of refund is more likely to have been as set out in her affidavit and, as well, the date of the second Scenic tour which she took was that set out in her affidavit.

I am persuaded that the preferrable conclusion with respect to her refund is that she received $500 for herself and that her husband did not receive anything in light of the fact that, by the time the refund was offered, he had died.

I accept Mrs Arnott’s evidence as to why she went on another Scenic tour after Cruise 6. I do not think it reflects adversely on her evidence about the extent of her disappointment and distress at what occurred on Cruise 6. On the contrary, it suggests to me that what happened on Cruise 6 was completely out of her usual experience, and that she did not expect to be treated as badly again by Scenic. She also had personal reasons to accompany one of her travelling companions on that further cruise.

I am asked to assess damages for both Mrs Arnott and for the estate of her late husband.

Having regard to Mrs Arnott’s evidence, I am satisfied that the distress and disappointment that each experienced was the same. However, because Mrs Arnott has continued to experience distress and disappointment and negative feelings about the Cruise consequent upon her husband’s death, she should receive a slightly larger sum than his estate would.

I assess the damages for distress and disappointment for Mrs Arnott as being $9,000 and for the estate of the late Mr Arnott at $8,000.

I should add that it was not submitted that an estate of a passenger who travelled on any cruise was not entitled to recover damages for the distress and disappointment which that person had felt on the Cruise, even though the person had died prior to the hearing of these proceedings.

Mrs Bright, who worked as a part-time bookkeeper, travelled with her husband on Cruise 6.

She started discussing booking a river cruise about a year before she made the booking. Mrs Bright had not previously travelled overseas other than to America to accompany her previous husband on a business trip, about 25 years prior to Cruise 6.

At the time of booking the Cruise, Mr and Mrs Bright had been married for three years. They booked the Cruise as a delayed and luxurious honeymoon holiday which they both wanted to be special.

The Cruise was incorporated into a longer holiday with tours on either side of it which were not high‑end luxury trips. The budget of Mr and Mrs Bright could not extend to a luxurious holiday for the whole time they wished to be away. However, the Cruise was intended to be the luxurious centrepiece of their holiday.

Mrs Bright did a good deal of research, including talking to friends and attending a Scenic seminar prior to making the booking.

The Cruise was an extremely expensive purchase for Mr and Mrs Bright. They were not accustomed to purchasing high end goods and services but took the view that this was a special trip on which they ought to spend their money.

Mrs Bright had no prior knowledge of any of the towns which they anticipated visiting on the tour and was looking forward to Cruise 6 as being an entirely new experience for her sailing along the principal European rivers. She was expecting to have a unique experience, seeing the great sights of Europe from on board a relaxing ship. She was also looking forward to some of the excursions.

She said this in her affidavit, which I accept:

Mrs Bright also said that she was looking forward to what it would be like to experience high quality food and drink which was not something she was accustomed to doing in her everyday life.

In particular, she was looking to unpack once only and retreat to a lovely room as part of a relaxing holiday. The ability to unpack once and settle into only one room was of particular importance to her and Mr Bright because of the fact that they were taking bus tours on either side of this Cruise which would require them to regularly pack and unpack.

Mrs Bright summed up her expectations and anticipation in this way:

As earlier recounted, Cruise 6 was significantly disrupted for about two thirds of the itinerary. Mrs Bright was extremely disappointed at missing out on the experience of sailing along the rivers and watching the passing scenery go by. The bus tours did not replace that experience for her. By the time the Cruise had been disrupted, and she had experienced the bus tours, she came to the view that she was absolutely disappointed because she was no longer receiving any form of cruising experience. Whilst on bus tours, the food was not of the standard that she had been promised and was not the sort of luxury meal she had been expecting to receive. By way of example, Mrs Bright recalls that on the long coach transfer from Mainz to Vienna, their evening meal was provided at about 10.30pm when the coach stopped as a fast-food chain and the passengers, if they wished to have any food, were required to order and pay for the meals themselves. Prior to that stop, the last time Mrs Bright had had a meal was about 10 hours earlier.

On that transfer, the passengers did not have ready access to a toilet and when Mrs Bright asked the tour guide where she could go to the toilet, she was directed to some bushes on the side of the road.

By the time they arrived in Vienna in the early hours of the morning, Mrs Bright and her husband were absolutely exhausted and completely disappointed by missing out on more of their cruising experience. By the time they arrived on the next ship, she was quite jaded and tired and found that having to repack and unpack and shift her belongings from accommodation to accommodation ruined her expectation of a single cabin for the entire Cruise. She was particularly disappointed in having missed out on the Rhine-Main-Danube Canal and all of the views and spectacular scenery of passing many villages and towns between Mainz and Vienna.

Mrs Bright found that such was her disappointment and distress at what was occurring that when she went on excursions she found them to be disappointing. It felt to her as thought she was starting to see everything with different eyes due to the disruptions. She found that during some of the excursions she was consumed with the fact that the Cruise had been ruined by the disruptions.

She found, particularly whilst in Vienna, that she was very angry with the various alternatives being offered because she felt like she was on a floating hotel with bus trips to excursions.

Mrs Bright was completely disappointed with the Cruise. She does not have any special memories from the Cruise as she had anticipated that she would have, and she did not receive the relaxing luxurious experience which she paid for. She did not receive the benefit of coming home “to her cabin and relaxing” and she was particularly distressed by not being able to unpack her bags once and stay in the same accommodation throughout the Cruise due to changing ships and accommodation. She did not feel that she had any real cruising experience and that she missed out on cruising along a major part of the river system.

She thought the bus trips were disappointing because they were sub-standard and lengthy, which was particularly distressing considering that the Cruise had been booked between two bus tours which had been planned, and because she was looking forward to a river cruise and not a bus trip.

Mrs Bright said this, which I accept:

Mrs Bright’s disappointment and distress was contributed to by what she regarded as false assurances being provided to passengers by the Cruise Director. She concluded in this way:

Mrs Bright’s feelings of disappointment have not faded over time. She still gets teary about the events of the Cruise because she regards the sum paid for the Cruise as a lot of money in her terms and for which she did not receive any value. She feels disappointment in an ongoing sense in not being able to discuss an enjoyable river cruise with her friends and family.

I would assess the damages for disappointment and distress for Mrs Bright as being at the upper end of the range of damages in the sum of $10,000.

Mrs Butlin travelled on Cruise 6 with her husband. They were both residents of Alberta, Canada, and travelled to Europe from Canada for a holiday which included the Cruise.

At the time of the Cruise, Mrs Butlin was retired. Prior to that she had worked continuously full-time for the Federal Government in Canada for 28 years. She had chosen to retire early so that she and her husband could do some travelling. That was a significant decision in her case. Her husband was, at the time of Cruise 6, suffering from multiple sclerosis and could no longer work due to his condition. Her husband is a tall man – 6’5”. By the time of Cruise 6, and as a result of his health condition, he required either a walking aid or else an ankle/foot orthotic to help him walk. The walking aid was an electrical device that stimulated the nerves in his legs allowing his foot to swing and his toes to lift up when walking.

Mrs Butlin booked Cruise 6 with her husband, having researched river cruises for about nine months prior to that time. Mrs Butlin was not interested in ocean cruising, nor was she interested in undertaking a land tour by bus because long distance travel on buses causes her to feel discomfort and nausea. A bus trip was also not suitable for her husband because of his physical condition.

Such was her concern about the suitability of accommodation for her and her husband that she upgraded their accommodation category to a Junior Suite which represented an uplift premium of about 48% above the base cabin price.

The Cruise was a very expensive purchase for Mrs Butlin and her husband. They were both retired, they were humble and lived in a modest home.

Cruise 6 was to be their first European holiday and they were both looking forward to the range of countries and cities that they would see during the Cruise. After booking the Cruise, Mrs Butlin did a great deal of research into the regions through which the Cruise would pass and was very much looking forward to the itinerary of Cruise 6.

Mrs Butlin had read in the Brochure that she and her husband would be able to unpack their bags once and stay in the same accommodation for the duration of the Cruise. She said this in her affidavit, which I accept:

In particular, and unsurprisingly having regard to Mr Butlin’s health condition, the Cruise was the preferred method of taking a holiday so as to avoid the tiring and draining aspects of a bus tour.

It is to be recalled that Cruise 6 commenced on 29 May in Amsterdam. On the evening of 31 May 2013, at about 6pm, Mrs Butlin recalls the Cruise Director addressing passengers and saying words to the effect that “we might not be able to continue on because there might be problems with a lock on the river, but we’ll find out more as we go”.

Mrs Butlin’s reaction to this is contained in her affidavit in terms which I accept:

When the ship was docked in Mainz, Mrs Butlin did not experience a pleasant outlook from the larger balcony of the Junior Suite which she had paid for. She was very disappointed that she could not experience the full effect of watching the scenery from the balcony in her cabin. After a bus trip on 2 June, and whilst walking into the town of Mainz from where the ship was docked, it was apparent to Mrs Butlin that her husband’s leg was swollen. She concluded the swelling was a result of the previous bus trips. Various trips were conducted from Mainz while the ship was docked there, but Mrs Butlin found them to be gradually getting longer and that her husband was continuing to experience discomfort which affected their enjoyment of Cruise 6.

By the time the passengers were to be transferred by bus from Mainz to Vienna, Mrs Butlin was quite disappointed and distressed by the Cruise experience because it had been so tainted by the disruption. She felt distressed that her and her husband’s time on excursions was being severely compromised by the need to travel to and from the ship. She became quite distressed about the length of the bus trip from Mainz to Vienna and, in particular, the adverse effect it might have on her husband’s health and well-being. During the course of the bus trip to Vienna in the evening whilst having dinner in Linz, Mrs Butlin and with a large number of other passengers were particularly shocked and distressed to overhear their tour guide (who was pacing up and down the street outside their restaurant) apparently talking into her mobile telephone and saying words to the effect: “That’s it, I quit.”

This caused a degree of shock and distress to Mrs Butlin and her fellow passenger because they did not know what was going to happen next. They did not arrive in Vienna until 12.30am the following morning, by which time, unsurprisingly, the passengers were very tired and Mr Butlin was in significant discomfort. Mrs Butlin was also feeling uncomfortable from the long bus trip.

The passengers were accommodated in Vienna on the Scenic Pearl. To Mrs Butlin’s perception, it was not of the same quality as the previous ship. The food was not as good, the service was not as friendly, and she felt that every aspect of the Cruise had been diminished.

She also observed in particular that the standard of accommodation on the Scenic Pearl was noticeably worse than it had been on the Scenic Diamond. For example, on the Scenic Pearl her room had no air-conditioning for three days. The ship was generally run down when compared with the previous accommodation.

Whilst docked in Vienna, the ship was directly facing another cruise ship which was only a few feet away. There was no view out of Mrs Butlin’s cabin other than of the other cruise ship. She found that she had very little privacy and had no interest in sitting on the balcony directly facing another cruise ship.

Mr and Mrs Butlin’s time in Vienna was very disappointing. She said the following in her affidavit with respect to feeling unable to travel to Melk because of the lengthy bus tour to get there and back this, which I accept:

It was clear that throughout their time in Vienna both Mr and Mrs Butlin were exhausted and unable to enjoy that city and any excursions because of the very lengthy 16-hour bus trip which they had experienced to get from Mainz to Vienna. The passengers on Cruise 6 were then bussed from Vienna to Budapest – a trip of approximately 7½ hours. Whilst Mr and Mrs Butlin’s accommodation in Budapest was in a Four Seasons Hotel, meals were provided at another hotel and were of a very low quality.

Mrs Butlin was very disappointed with Cruise 6. Her time was not uninterrupted relaxation on a cruise down a river in the comfort of her own cabin while observing the view. Rather, she felt as though her time was mostly spent on long bus tours which were stressful and tiring. She was disappointed that she did not receive the high-quality service and luxury that was promised, and her excitement was entirely deflated.

She said this, and I accept:

In thinking back on her Cruise, Mrs Butlin did not recall any fond memories and remembered only the disappointing aspects of the Cruise.

As the evidence showed, Cruise 6 was to be a very important holiday for Mr and Mrs Butlin. A river cruise was chosen as opposed to any other form of transport to accommodate Mr Butlin’s health condition and needs and also because Mrs Butlin was not comfortable with taking long bus rides.

The Cruise was significantly disrupted. The experience they received was not what they were promised or had expected, and they suffered a significant degree of distress and disappointment.

I am only asked to assess the distress and disappointment of Mrs Butlin, although it does appear that Mr Butlin also experienced a similar level of distress.

I assess the damages for distress and disappointment for Mrs Butlin at the upper end of the range of damages in the sum of $10,000.

Mr Green, who had for many years been a member of the Australian Defence Force, was approaching retirement. He decided, with his wife Robyn, to use their accumulated savings to book their cruise as a retirement holiday to reward themselves for their years spent as members of the Defence Force.

Following a series of service-related injuries, Mr Green’s mobility was deteriorating. He wanted to experience a holiday which was relaxing, without stress and as an entry into his retirement. As well, he and his wife were celebrating their 25th wedding anniversary.

Mr Green commenced researching the cruise about 12 months or so before making a booking. In particular, he wanted to visit places of historical significance – including Nuremburg, and wanted to be able to relax, unpack his bags once and stay in the same accommodation throughout the cruise.

Mr Green’s evidence demonstrates that he had experienced a number of demanding and stressful postings throughout his service career, including to theatres of war and working on classified operations. In 2003, he suffered an injury affecting his back and spine. He had limited mobility at the time he went on the Cruise and was required to use a walking stick.

In particular, as a consequence of his service Mr Green was suffering from post-traumatic stress disorder (“PTSD”). This emphasised the need for him to have a relaxing cruise where he could unpack his bag once, be able to retire to his cabin as and when he felt the need, and to stay in stable accommodation. He was subject to anxiety attacks by reason of his PTSD. One of the features of this Cruise which attracted Mr Green and his wife was that because they were on a river cruise with an itinerary which was well chartered, that provided them with a sense of assurance in knowing the route that would be followed and the ports at which the cruise ship would stop.

Because of his background in the Defence Force, and his various studies and qualifications, Mr Green was particularly interested in a river cruise that would allow travel to some of the historical and military sites, such as Nuremburg, about which he had learnt.

Salzburg was another site of particular interest because of its military history and also its world heritage listing not only as the birthplace of Mozart, but for its unique and outstanding baroque architecture.

Mr Green’s motivation was expressed in these terms, which I accept:

Mr Green also said this, which I accept:

Mr Green paid for a Junior Suite which represented a 50% premium above the base cabin price. He chose that level of accommodation to allow him easy bathroom access given his mobility issues and because it was a higher-level suite, he was looking forward to being able to sit back in the cabin and enjoy the views of the passing scenery.

At the time of booking the Cruise, and increasingly as the time for the Cruise approached, Mr Green was looking forward to receiving “unparalleled luxury throughout the 15-day cruise as well as a heightened sense of relaxation as the cruise progressed”. He expected that he would feel reinvigorated and that he would have a sense of accomplishment, having undertaken the trip of a lifetime.

As the Cruise became more disrupted and travel by bus became a regular occurrence, Mr Green suffered significant stress and disappointment. To cope with any bus trip, having regard to his physical health, he needed to medicate himself to avoid feeling pain. Longer bus trips caused him to become nauseous and created difficulties for him as he experienced flashbacks or recollection of certain events during his military service.

He found the long bus trips very tiring. Mr Green felt frustration and disappointment whilst the ship was docked in Mainz because he had no opportunity to cruise along the river at a relaxing pace. He found that being stuck in Mainz made him want to leave the Cruise. He was not able to cope with the long bus trips because of the pain that he suffered whilst on them and chose to remain on board instead. The excursion to Nuremburg, which Mr Green had been greatly looking forward to, was cancelled and he was unable to experience the historic military aspects of Nuremburg.

This, of course, increased his sense of complete disappointment in the Cruise. Mr Green found the news that he would have to disembark at Mainz and travel by coach to Vienna and then re-embark on another ship particularly distressing. Such was Mr Green’s concern at the bus trip that he and his wife decided to catch a plane from Mainz to Vienna. This was paid for by Mr and Mrs Green and no offer was made by Scenic to pay for the flight. Although, after the conclusion of the Cruise some months later, he received reimbursement of the airfare, he found that the additional expense (which he had not budgeted for on the basis that the Cruise was an all-inclusive cruise) and Scenic’s lack of assistance to be particularly distressing.

Of this experience, Mr Green said, and I accept, this:

Mr Green and his wife were required to walk from their hotel accommodation in Budapest to another hotel to have their buffet meal. This was particularly difficult for Mr Green with his physical condition.

Mr Green was particularly disappointed and felt distressed about the Cruise. He noted that he had built up expectations over the year from when he first began planning the trip with his wife. He found that although parts of the Cruise proceeded as scheduled, his enjoyment of those parts was completely wiped out by the fact that he “did not get to indulge in the luxurious and relaxing experience throughout the 15 days of Cruise 6”. His disappointment was created by the stress of having to endure long bus trips and shifting accommodation and not receiving the trip which he had expected. Neither the meals nor the service was of the quality which he had expected. Mr Green was particularly disappointed to have missed out on Nuremburg which he had expected to be a highlight of his Cruise. Of his feelings at the end of the Cruise, Mr Green said he felt anger, disappointment and frustration combined with a sense of loss and personal embarrassment. He said this, which I accept:

Looking back on the Cruise, Mr Green continues to feel disappointed. He regards the Cruise as the low point in his life and wants to push it out of his mind.

In my view, given his background, and his physical and mental condition, Mr Green has a very high level of disappointment and distress from his experience on Cruise 6. I assess damages for Mr Green’s distress and disappointment in the sum of $11,000.

Mr Davis booked on Cruise 7, on which he intended travelling with his wife, about a year before the Cruise was due to depart from Budapest to Amsterdam. He and his wife chose a Balcony Suite on a higher level of the cruise ship, which represented about at 35% uplift on the price of the base cabin.

Mr and Mrs Davis flew straight to Budapest, arriving two nights before the Cruise was due to depart and flew home from Amsterdam on the day the Cruise finished. This was their first trip to Europe and they flew for the sole purpose of undertaking Cruise 7.

At the time of the Cruise, Mr Davis and his wife had been the owners of a retail franchise in which Mr Davis was working part-time.

Mr Davis had significant mobility and health issues. His mobility issues related to his contraction of severe polio as a young 5-year-old. It affected the muscle strength of his right thigh and calf and made walking particularly difficult. It also meant that he walked quite slowly.

The possibility of going on Cruise 7 was first raised with Mr Davis and his wife by their friends, Mr and Mrs Townsend with whom they travelled, about four or five months before they made their booking. During that four-to-five-month period, Mr Davis did a good deal of research and he satisfied himself that the itinerary of Cruise 7 would enable them to have a relaxing holiday which represented a reward for the years of hard work in their business. Their travelling companions had booked on a seven-day bus tour leading up to the start of the Cruise and invited Mr and Mrs Davis to join them. Mr Davis and his wife declined because, with his physical limitations, Mr Davis had an aversion to climbing stairs and undertaking extended walking. They also thought that the bus trip would not be relaxing and that living out of a suitcase for the duration of a trip was not something they would enjoy.

Mr Davis booked a balcony suite on the top level of the ship which was more expensive by a significant margin than the base cabin price. He did so after consultation with his wife because they wanted to experience the full ambience of the scenery as they cruised along the rivers. Although Mr Davis regarded the Cruise as expensive, he felt that he could justify such expenditure because he anticipated receiving a premium service with high quality food and drink, and a luxurious cruise which would be comfortable and memorable.

He said this in his affidavit, which I accept:

Mr Davis was looking forward to the fact that the ship would be his home base for the entire 15 days and that his cabin would be a place to which he and his wife could retreat when they wished. He did not wish to pack and unpack because he thought that would disrupt his relaxing experience.

Cruise 7 departed Budapest on time and arrived in Vienna with no change to the itinerary. Thereafter, as I have earlier described, there were significant interruptions to the itinerary which included changing ships on two separate occasions. After making the booking, Mr Davis was diagnosed with prostate cancer which required a radical prostatectomy. One of the lasting consequences of such an operation is typically, and in Mr Davis’ case was, a degree of incontinence which required management mainly by the use of incontinence pads. Mr Davis considered whether or not in light of that procedure (which occurred in August 2012) he should cancel the booking. He consulted with his specialist, who encouraged him, from the perspective of his cancer diagnosis and subsequent health treatment, to go on the Cruise. Mr Davis’ uncertain future was another reason why he was looking forward to a special luxury tour.

Because of his incontinence issues, Mr Davis was looking forward to the flexibility of having ready access to his cabin and ensuite bathroom and the privacy of that as well. As earlier noted, after arriving in Vienna, Cruise 7 became significantly disrupted. Mr Davis recalls that the ship was docked in a very bleak industrial area which meant that he received no benefit from having access to a balcony. The various bus tours organised whilst the ship remained in Vienna for six nights were not at all enjoyable for Mr Davis. He found it very difficult to get on and off the ship, and onto and off buses with his physical disability. His wife was very disappointed about bus trips because that was not what they had booked.

On the morning of 6 June, the passengers on Cruise 7 disembarked the Scenic Pearl in Vienna and travelled by bus to Bamberg to board the Scenic Jewel. It was an early departure at 8am and passengers were required to have their luggage available by 7am. The bus trip took about nine hours. The bus stopped on occasion but generally by the side of the road near open fields where passengers had the opportunity, in full view of other passengers, to relieve themselves. The topography was challenging, the lack of privacy was extremely problematic for all of the passengers including Mr Davis and, as he said in his affidavit, which I accept, he simply “did not expect to have to relieve himself on the side of the road during a luxurious river cruise”.

No morning tea or lunch was provided during that trip. The first stop was at Regensburg which they reached at about 4pm. One of the difficulties which led to significant distress and disappointment for Mr Davis was that it was not made clear to him or to the other passengers quite what the itinerary was, where lunch was expected to be taken, when they would have any opportunity to access toilet facilities and what would or would not be provided to them. He felt, and I accept, that this was not the cruise package with all-inclusive luxury that he had been promised and which was the purpose of his holiday.

Of the particular problems associated with his prostate cancer, Mr Davis recorded the following which must have been most distressing, inconvenient, undignified and quite humiliating:

By the time the passengers again transferred from Bamberg, Mr Davis had come to the view that the Cruise was a failed trip which caused him to feel considerable disappointment. He said, and I accept:

Mr Davis also felt that by this stage they were living out of a suitcase and that was not a relaxing feeling.

Mr Davis found the whole experience of Cruise 7 to be terrible. He was only able to experience two or three days of river cruising, he was unable to properly unpack and forget about his luggage throughout the length of the Cruise. His enjoyment of the Cruise was severely reduced by the very lengthy bus trips which were undertaken. He also found it particularly galling knowing that he was spending most of his time off the ship and had not received the cruise experience which he had anticipated.

Mr Davis said this, and I accept:

The trip was not restful or luxurious for Mr Davis. He was unable to unwind, relax, share the company of his wife and friends and take things at his own pace throughout the trip. What he envisaged as a reward for his hard work and wife’s hard work over the years did not occur. His memory is of a series of lengthy and uncomfortable bus trips rather than a relaxing experience cruising aboard a luxurious ship.

At the conclusion of the Cruise, he described his feelings in this way:

By the time the Cruise had finished, Mr Davis felt mentally and physically tired from the lengthy bus trips and he had a profound sense of disappointment from the failed trip because he thought he was never going to be able to take another such holiday due to his health and physical condition.

Mr Davis continues to feel a sense of disappointment.

I have assessed Mr Davis’ damages for distress and disappointment at $9,000 which is a sum at the upper end of such damages for the passengers on Cruise 7.

Mrs Martin travelled on Cruise 7 with her parents. She was in her early 50s and was working full-time as a pharmacy technician. She was a single mother who cared for her daughter who suffered from a psychiatric disorder. In preparation for the Cruise, she undertook three counselling sessions to support and validate her decision to take a holiday whilst leaving her daughter, who was then aged 21, at home. She saw the holiday as being an opportunity for respite from her role of caring for her daughter and as taking a break from the rigours of her daily life.

She had not travelled overseas with her parents as an adult and was looking forward to enjoying the trip with them as she thought it would be one of their last opportunities to travel together on a holiday.

In addition to hearing descriptions of a similar cruise from her sister, Mrs Martin researched the Cruise, including by accessing Scenic’s website. Mrs Martin had an interest in history and was looking forward to experiencing the historical sites identified on the itinerary for Cruise 7. She was looking forward to something that was unique, special and luxurious. She was particularly looking forward to visiting Nuremberg and Regensburg having regard to their history.

The Cruise was a particularly expensive purchase for Mrs Martin and, in order to pay for it, she refinanced her home loan. It was particularly important to Mrs Martin that the Cruise was offered as an all-inclusive experience because she wanted to avoid the need to spend more than the amount she had budgeted for. Mrs Martin booked a 9-day bus tour prior to undertaking Cruise 7. Because of that, she was particularly looking forward to being able to unpack her bags for the whole of the time on Cruise 7 and not having to live out of a suitcase.

She said, and I accept, that the main reason for her to take the Cruise was:

She was also looking forward to being looked after and having a place of comfort throughout the trip to which she could retire when she wanted to. She booked a cabin with a private balcony so that she could sit back and enjoy the passing scenery whenever she needed to just spend some time on her own.

She anticipated that the cruise package that she had booked, which consisted of all-inclusive luxury and relaxation while cruising down the rivers of Europe “would provide me with a unique and special experience that I could treasure in my memories”.

As the Cruise approached, she discussed it and the daily activities with her parents and they planned how they would spend each day together.

The first days of Cruise 7 for Mrs Martin were as expected. She enjoyed herself and had no concern or suspicion about any future disruption. However, that experienced changed promptly when the cruise ship docked in Vienna and changes commenced to be made. Nuremberg was removed from the itinerary which was a particular disappointment to Mrs Martin because she had seen that as being an historical highlight of Cruise 7. Whilst docked in Vienna for six evenings, Mrs Martin’s cabin directly faced a concrete wall. She found this to be a complete disappointment as she had looked extensively into features of the cabin when booking the Cruise and was looking forward to watching the scenery as the ship sailed along the rivers.

The bus trip from Vienna to Bamberg departed Vienna early in the morning, at about 8am. The first stop on that trip was at Regensburg at about 4.30pm when the passengers were provided with some lunch. Again, on the trip between Regensburg and Bamberg, Mrs Martin found that the buses did not offer any toilet facilities and the passengers were required to relieve themselves on the roadside. She was particularly disgusted as to how the rest stops during this bus trip were facilitated. She said, and I accept, this:

The bus trip concluded when Mrs Martin arrived at the Scenic Jewel at about 10pm having been on that bus trip for about 14 or 15 or so hours. Unsurprisingly, she found that the day was long, uncomfortable and stressful. She was particularly distressed because she had anticipated, in accordance with the purpose of the Cruise, that they would be cruising down the river and not waiting around due to delays caused by Scenic.

At Bamberg, the ship which she boarded (the Scenic Jewel) was docked in a most unpleasant location. Mrs Martin’s balcony was facing directly into an industrial area and she felt as though they were moored at the end of a dirty pond filled with weeds. She had no scenery to look at.

By 7 June 2013, which was the tenth day of the Cruise, Mrs Martin expressed her feelings in this way, which I accept:

The following day the passengers were required to disembark from the Scenic Jewel and travel by coach to be accommodated on the Scenic Ruby. From 9 June 2013, the Cruise largely proceeded in accordance with the itinerary. However, even those experiences, whilst enjoyable for Mrs Martin, were surrounded by the disruptions and disappointment and distress from earlier in the Cruise. The parts of the river that she did cruise on gave her a taste of what she should have experienced and reminded her of what she had missed out on.

Mrs Martin expressed her disappointment and distress in these terms, which I accept:

When the Cruise was finished, Mrs Martin found that she was glad that it was over. She felt exhausted and ripped off. She felt exhausted because she never completely unpacked her suitcase and was forced to change ships throughout the trip.

She said this of her feelings when she returned home, and I accept:

Having regard to all of the feelings so well expressed by Mrs Martin about her disappointment and distress and her particular circumstances, I assess damages for her disappointment and distress as a consequence of her experience on Cruise 7 in the sum of $8,500.

Mrs McArthur booked a cabin on Cruise 7 about 12 months before the Cruise commenced. She was travelling with her husband and his sister and brother‑in‑law. The purpose of the Cruise was to celebrate her 60th birthday and her husband’s recent retirement.

Mrs McArthur had a problem with her hip which caused her pain and reduced her mobility.

She had previously undertaken two ocean cruises and found that she liked the freedom on a cruise to do as much or as little as she wanted to each day. She found that she could moderate her pace, which meant that she did not over‑exert herself. She liked the leisurely pace of a cruise and the flexibility of it.

As she and her husband were relatively recently retired, they commenced to investigate and research taking a river cruise. She felt that at that stage, with her family grown up and she and her husband retired, they had the freedom to travel at their leisure.

She and her husband went through the Brochure looking at the various cruises which were on offer and chose to book a cabin on Cruise 7. She particularly noted from the Brochure: that the Cruise would provide a five-star standard of luxury with high quality service, including a butler to provide refreshments whenever desired; that the staterooms would contain private outdoor balconies with a spacious lounge with floor-to-ceiling windows to be able to watch the scenery as the rivers passed by; and that there would be multiple food options including fine dining with drinks included to experience whilst on the Cruise. In particular, the Cruise, she noted, was an all-inclusive price and that she would be experiencing an overall relaxing cruise with everything taken care of by the staff. She spent about 12 months researching and seeking information about various river cruises, including Cruise 7. She particularly wanted to make sure that the Cruise that was booked was suitable for her medical circumstances.

Mrs McArthur had never been to Europe before this Cruise and so she was looking forward to the opportunity to view the scenery along substantial distances of the rivers whilst relaxing on board the ship.

Mrs McArthur and her husband booked a Balcony Suite to enhance their enjoyment of the relaxing Cruise by use of a balcony at a higher level on the ship, which represented about a 26% uplift on the cost of a Basic Cabin.

In deciding to undertake the Cruise, it was particularly important to Mrs McArthur that she had a relaxing experience which would allow her to explore the parts of the Europe on the itinerary despite her limited mobility. She thought that her relaxation and enjoyment of the Cruise would deepen throughout the two weeks she was on board the ship. She expected, not unreasonably, that the river Cruise would allow her to rest and stay on board if and when she chose and that she would be able to watch the scenery go by no matter the weather from the comfort of her own balcony or the ship’s sundeck as she chose. She thought that being able to unpack once and stay in the same accommodation would assist in her relaxation.

She was particularly careful when selecting a cabin to choose one that was close to the entrance to the ship and close to the dining areas so as to minimise the amount of walking she had to do and one with a balcony so that when she came back to the ship, or on days that she did not feel like leaving the ship, she would be able to rest and relax in her cabin and enjoy the scenery. Of her expectations she said this:

The Cruise departed Budapest and continued to Vienna. Mrs McArthur found those first three days went as expected and she was even more excited to continue cruising than when the Cruise had first started. In Vienna the ship remained docked. It was moored alongside other ships which blocked any light coming into Mrs McArthur’s cabin from the outside. The smell in the area where they were docked was quite unpleasant. It smelt like fuel and sewerage to Mrs McArthur and to avoid having such an unpleasant smell wafting through the cabin, Mrs McArthur had to keep the windows and balcony doors closed.

On the evening of 5 June 2013, which was the eighth day of the Cruise, Mrs McArthur and the other passengers were informed that they would need to pack up their belongings and be ready to depart the ship by 7am the following morning. They were asked to carry their bags and leave them in an identified area because they were being moved to another ship by bus.

Mrs McArthur’s reaction was expressed in this way:

These feelings of disappointment were accompanied by feelings of guilt that she and her husband had recommended the Cruise to her husband’s sister and brother-in-law.

The bus trip from Vienna to Bamberg was a particularly stressful experience for Mrs McArthur. It was uncomfortable and not very spacious. There was little leg room. The bus driver did not appear to know where he was going and on a number of occasions the bus had to stop so that the tour guide could check the roads and tell the bus driver where to go. They finally arrived at the Scenic Jewel in Bamberg in time to have dinner at 9.15pm. By that stage, Mrs McArthur was very tired and wanted to finish her meal so that she could rest and recuperate for the balance of the Cruise. The long bus trip had meant that she could barely walk the distance from the bus to the ship whilst carrying her bag. Because she had been on the bus all day and been sitting upright and unable to stretch out, she found that the trip had exacerbated her pre-existing problems, causing her severe physical discomfort.

That particularly long bus trip created anger in Mrs McArthur. She felt she had been deceived about the whole Cruise. She felt that it was not what she had paid for or expected and consequently from that day on, she did not feel as though she was able to enjoy the remainder of the Cruise. She was physically too exhausted.

She was particularly disappointed that they had completely missed the Rhine-Main-Danube Canal. On 7 June, which was the second evening Mrs McArthur had been on the Scenic Jewel in Bamberg, she received the news from her husband (who had attended a meeting of the passengers) that the passengers would be moving by bus on the following morning to a further ship. She records her reaction in the following way, which I accept:

Mrs McArthur was particularly disappointed by this stage of the Cruise because she had missed out on sailing the entirety of the Main River in addition to the Rhine/Main/Danube Canal and much of the Danube River.

Of the last three days’ cruising, she said this:

At the end of the Cruise, Mrs McArthur was completely dissatisfied because Scenic had not delivered on what she expected, namely a luxury experience which would allow her to relax and explore and enjoy Europe and its beautiful sights and attractions.

Each day she felt as though she was tied to a clock determined by Scenic. This meant that she was dissatisfied, disappointed and distressed with how she was unable to escape and relax. Her expectations of a leisurely, luxurious holiday were completely destroyed.

In particular, she was completely disappointed and distressed with how she was unable to unpack her bags once and stay in the same accommodation throughout the Cruise. Overall, she was completely disappointed with Cruise 7 as “it was not the luxurious, relaxing and wondrous experience that was depicted in the brochure and that I had anticipated”. In reality, the Cruise for Mrs McArthur turned out to be much, much worse than she expected.

At the end of the Cruise, she felt stressed and exhausted. She had expected to feel relaxed and enlivened from all the exciting experiences that she had had, but instead she felt the opposite. Such was the extent of the disruption and the disappointment which it caused that the days of the Cruise which had proceeded without disruption were completely forgotten like a distant memory.

At the end of the Cruise, she said this of her feelings, which I accept:

The exhaustion impacted on the next part her holiday which followed on after the Cruise and which involved her travelling around the United Kingdom.

Mrs McArthur’s feelings of disappointment and distress continued after the Cruise finished and after she returned to Australia.

Having regard to all of these matters, I would assess damages for Mrs McArthur’s distress and disappointment in the sum of $8,500.

Mrs Robinson booked her cabin on Cruise 8 to travel with her husband about 14 months before the Cruise commenced. Mr and Mrs Robinson were travelling with close friends, Mr and Mrs Atkinson.

They were residents of Quebec and travelled from there to Europe for the purpose of the Cruise. They spent one night in Amsterdam before the Cruise commenced and one night in Budapest after the Cruise concluded. Otherwise, they flew to and from Canada directly.

Mrs Robinson was retired at the time of the Cruise. She had worked full-time as a project director for 15-20 years and had undertaken project management on large scale projects with large enterprises. She was accustomed to managing large number of employees who were often spread through different countries throughout the world. Mr and Mrs Robinson had undertaken a number of ocean cruises prior to making their booking for Cruise 8. They particularly enjoyed cruising because they were able to unpack their bags once and stay in the same accommodation throughout the cruise. During their working lives, both Mr and Mrs Robinson had worked hard and had only limited time off. They had previously enjoyed undertaking expensive and luxurious ocean cruises to reward themselves for their hard work.

Although Mrs Robinson had experience of a bus tour when she was considerably younger, that was not an experience that she wished to repeat. Accordingly, at the time of booking Cruise 8, she wanted to experience a level relaxation and luxury on a river cruise and did not want to experience a bus trip.

Cruise 8 was the first big holiday that Mr and Mrs Robinson had taken after Mr Robinson’s retirement in 2012. They wanted to celebrate that retirement and enjoy a luxurious trip together with their friends, Mr and Mrs Atkinson who lived in Scotland.

From reading the Brochure, Mrs Robinson was informed that Cruise 8 would take place on a new ship called the Scenic Jewel. She saw that the ship provided for balcony suites, one of which she booked. That was particularly important to her because her observation was that the cabins on river cruises were likely to be somewhat smaller than the cabins she had previously been accustomed to on ocean cruises.

She was particularly looking forward to exploring Vienna at her own pace by using a facility offered by Scenic on this tour of independent sight-seeing assisted by GPS-guided equipment.

Mrs Robinson said, and I accept:

Mrs Robinson expected that she would be cruising along the principal rivers of Europe and receiving a luxurious and all-inclusive product delivered to a high standard and unpacking just once and with many excursions being available.

Cruise 8 commenced in Amsterdam. Rather than embarking on the Scenic Jewel, Mrs Robinson and her husband and travelling companions embarked on the Scenic Ruby. There were a number of days of this Cruise, including the first and last days, with little, if any, difference to the itinerary, but most of this Cruise involved significant and major changes. Passengers on Cruise 8 spent their nights on three different ships. The Scenic Ruby, which is where the Cruise started, was not of the quality of the Scenic Jewel. The accommodation provided on that ship was not luxurious and it included what Mrs Robinson regarded as a sub-standard and poorly designed bathroom.

Although cruising commenced and proceeded to Cologne, the ship could not dock in a place which provided easy access for passengers. Mrs Robinson’s recollection, which I accept, was that the ship was not docked in a convenient position and that it was difficult to re-join it. She had to climb over a fence and then down onto a pier where the ship’s crew held the ropes of the ship against the pier. One of the excursions to Marksburg Castle took place whilst the ship was moored there, but it involved a much longer bus trip than would ordinarily have been expected and the difficulties of embarking and disembarking the ship in its location caused Mrs Robinson to feel as though she was “walking the plank” as if she was in the movie “Peter Pan”.

The Scenic Ruby docked in Koblenz where it was moored between many other ships. Mrs Robinson found that the balcony of her cabin was directly facing other cruise ships and she was unable to see any scenery. The amount of daylight available to enter her cabin was extremely limited. She was very disappointed about this because she had specifically booked a cabin with a large balcony, but it was unusable in the circumstances. A photograph of the over 20 ships moored at Koblenz which Mrs Robinson took shows that these ships were often moored five abreast. It was certainly not a congenial mooring location or configuration.

Later on 7 June, the fifth day of the trip, the ship left Koblenz and cruised a short distance to Wiesbaden. This cruise segment was a particular highlight of Cruise 8 because it travelled through the Rhine Gorge and included a view of the world‑famous Lorelei Rock and various castles. However, the way in which Cruise 8 addressed this was to undertake that cruising in the dark with the spectacular view unable to be enjoyed and appreciated. This was a complete disappointment to Mrs Robinson.

The passengers on Cruise 8 disembarked the Scenic Ruby from Wiesbaden and were transferred by bus to the Scenic Jewel in Bamberg. That was about a 10-hour trip. Whilst on the Scenic Jewel, Mrs Robinson was docked for three nights in a swamp area overlooking an industrial dockyard to the west of Bamberg. Mrs Robinson’s perspective was that the swamp area appeared to be infested with insects, there were many bugs around, there was a strong smell of sewerage and, as a consequence, she was unable to use her balcony during this time.

Whilst Mrs Robinson was glad to finally be on the Scenic Jewel, it was docked in an unpleasant location, and there was simply no scenery available. Excursions were undertaken from there but generally they left very early and, accordingly, if passengers proceeded on them, a leisurely and inviting breakfast could not be had. Passengers returned late from their excursions and had limited time to rest and change before evening meals.

One of the places Mrs Robinson was looking forward to visiting was Nuremberg. Contrary to what was portrayed in the itinerary because the passengers were travelling from Bamberg, the round trip on a coach took about six hours and the passengers were limited to only two hours whilst in Nuremberg. Whilst Mrs Robinson found her experience of Nuremberg to be interesting and positive, ultimately it was completely overshadowed by the very long bus trip to and from the city of Nuremberg and the limited time spent there. The bus travel was uncomfortable and there were often delays due to queues for washroom access.

The passengers on this Cruise then, on 14 June, which was the twelfth day of the Cruise, undertook a bus trip from Berching to Vienna which took about 10 hours, including a stop for lunch. Their time in Vienna was reduced to a single day and then, whilst the Scenic Pearl cruised to Budapest, it docked in an area where there was obviously high water and considerable detritus and bugs. The air-conditioning on the Scenic Pearl was not functioning in the lounge or dining room. Vienna and Budapest were experiencing reasonably high temperatures and the facilities generally on the Scenic Pearl were a significant downgrade from the Scenic Jewel. The level of Mrs Robinson’s disappointment rose as a consequence.

Cruise 8 left Mrs Robinson greatly disappointed. She was completely disappointed with how she was unable to just unpack her bags once, but rather her trip was spread across three stationary trips with transfers that required her to pack and unpack three times. This meant that she did not receive the uninterrupted relaxation that she had expected. She was not able to watch scenery go by because she was unable to utilise her balcony. She was disappointed because what she received was less than satisfactory accommodation with all ships docked in undesirable locations. She did not feel as though she had been immersed in an all-inclusive luxury cruise. She had to pay for some of her own meals during the trip, the food and drink provided for passengers was disappointing, the service was abysmal, and seating in the dining room was very limited. She was particularly disappointed with the lack of cruising throughout the two weeks as she did not get to see and experience much of what had been promised.

She found that the lengthy days on buses to travel to and from various sights “stole several days of her vacation” which added to her stress and made it impossible for her to relax. She generally found the early starts and late finishes of the bus excursions to be exhausting and stressful. Of her disappointment and distress, she said this in her affidavit, and I accept:

Mrs Robinson was bitterly disappointed, shocked and disgruntled at the end of Cruise 8. Once she returned home, she was very tired and tended to dwell on the ruined cruise experience.

As she concluded, she and her husband had paid for a luxury river cruise and were completely disappointed to have very little cruising throughout the trip, instead being required to endure very long days on buses. Her feelings of distress and disappointment continue.

As has earlier been noted, Cruise 8 was a significantly disrupted cruise. The value of the services received by the passengers was a very small proportion of what they had paid. Mrs Robinson’s experience reflected those facts. She was entitled to, and did, feel distressed and disappointed at what had occurred.

In all the circumstances, I assess the damages for her distress and disappointment at $10,000.

Mr Whyman, who is a resident of Ontario, Canada, booked on Cruise 8 with his wife, Louise, in early June 2012. Mr Whyman was retired at the time he took the Cruise. He had worked full-time prior to his retirement in about 2010. For the purpose of his work as an engineer, he would often work on-site at various locations around the world. His wife retired in 2011.

Prior to undertaking Cruise 8, he had, with his wife, enjoyed a significant number of ocean cruises at different locations and with different companies. Mr Whyman and his wife particularly enjoyed undertaking ocean cruises because they enabled them to see new places and experience many different port locations without having to shift from one place of accommodation to another. He also enjoyed undertaking those cruises because he loved being on the water as a mode of travel and had been, from the time of his youth, accustomed to operating ships and sailing them throughout his life.

Mr Whyman had never holidayed in Europe prior to undertaking Cruise 8. He was looking forward to seeing the interior of Europe.

Whilst considering whether to book on a river cruise, Mr Whyman attended a presentation by Scenic in Ontario and obtained a Brochure. He recalled reading the Brochure and observing the presentation – which were both consistent, one with the other. He was also provided with a further brochure from Scenic Cruises entitled “What’s new in 2013”. He said that he observed in the course of the presentation that Scenic provided complimentary electric bikes throughout the Cruise, which was of particular interest to him as he considered it would allow him to explore places they were visiting at his own pace. From all of the information, he expected that the Cruise would be the ultimate cruise experience with first class service, comfortable meandering along the rivers, and unhurried excursions visiting the towns and people along the way. He expected that he and his wife would have to unpack only once and would stay on the same ship throughout the duration of the holiday.

Mr Whyman chose the itinerary for Cruise 8 because, from what he had read in the Brochure and consistently with what he had been told in the presentation, he thought that it presented a significant number of interesting places to visit along the way and a more comprehensive route along the principal rivers, the Rhine, the Main and the Danube. He also expected that he would enjoy cruising past castles and towns at a relaxed pace, able to take in the view. He also envisaged, from what he was told, that he would be able to visit towns along the way at his own pace.

Of particular interest to him and his wife was seeing and sailing past the Lorelei Rock, which was a formation in the Rhine Gorge which had a romantic history and was the source of old legends. That was high up on his list of highlights and he looked forward to viewing it from the balcony of his cabin together with his wife.

The cost of the tour was regarded by Mr Whyman and his wife as being extremely expensive. However, having regard to the fact that he understood it to be an all-inclusive cruise, he took the view that this was a real benefit. Prior to the Cruise, he and his wife were looking forward to receiving a high level of indulgence and enrichment throughout the duration of the Cruise, particularly having regard to what he regarded as a high cost for the Cruise.

It was of particular importance to him that he and Mrs Whyman would be able to unpack their bags once and stay in the same accommodation through the 15 days of the Cruise. He was also particularly looking forward to spending time in his private cabin with his wife on the balcony watching the scenery regardless of the weather. This was a feature which had been promised in the Brochure.

As is apparent from earlier parts of this judgment, Cruise 8 did not get off to a promising start because instead of embarking on the Scenic Jewel, which was a brand-new ship, the passengers embarked on the Scenic Ruby which was an older and smaller ship. Mr Whyman’s cabin on board the Scenic Ruby was very small and was poorly laid out so that when a shower was taken, water flooded over into the stateroom. There was only very limited space to unpack belongings. The ship docked in Koblenz in the evening after cruising for a little over a day. It was rafted up between other cruise ships which meant that there was no view of any scenery from the ship. There was little privacy in the cabin which Mr and Mrs Whyman occupied as they looked directly into another cabin on the next ship a few feet away.

Whilst docked in Koblenz, Mr Whyman and his wife, together with the other passengers on Cruise 8, were offered alternative excursions to those which had been scheduled. The excursions were not real substitutes for what had been proffered on the itinerary. They involved long bus trips, which by this stage Mr and Mrs Whyman found very tiring and not at all appealing. As well they noticed that the atmosphere on the Cruise had deteriorated. A number of the passengers were vocal at meals about their disappointment with the disruptions which made the atmosphere on the ship between the passengers and the crew rather tense and not at all relaxing. On the evening of 7 June, which was the fifth day of the Cruise, the Scenic Ruby commenced sailing through the Rhine Gorge. Mr Whyman had looked forward to this as one of the real highlights of the Cruise. However, the ship cruised through this segment of the Rhine River at night and neither Mr Whyman, nor his wife nor any other passenger was able to see the Lorelei Rock and the spectacular area of the Rhine Gorge which had been promised.

Mr Whyman was extremely disappointed to have sailed this part of the river at night and had started to feel by this time that he was not receiving the complete experience of sailing along the river that he had been promised with the Cruise. The following day he and Mrs Whyman were transported by coach – leaving Wiesbaden at 8am – to Bamberg.

The bus tour took a number of hours, including a stop for lunch at Würzburg. Upon arrival at Bamberg, Mr Whyman found that it was necessary to carry their own suitcases from the bus to the ship which involved trying to walk down a very steep embankment to board the Scenic Jewel, which caused a lot of trouble and which Mr Whyman did not regard as being at all safe.

In Bamberg, the Scenic Jewel was docked in a backwater area near an industrial complex with industrial barges, sand piles and gravel all around. There was no nearby town or village to walk to and absolutely no scenery to look at. The ship was docked alongside an industrial warehouse. By the second day of the ship being docked in Bamberg Mr Whyman was quite distressed and disappointed. He records, and I accept, that he felt quite low and tired and worn out by the travel by bus combined with the poor quality of excursions being provided as alternatives to the cruising. It also meant that he was concerned about what might happen on the rest of the Cruise. He also found that once the disruptions occurred and they were taken by bus to various excursions, many of the mealtimes were rushed. Breakfast was usually taken at 6.30am before boarding a bus at 8am. He also found that he and his fellow passengers very often returned to the ship from excursions late in the day which led to dinner being kept very short.

It seems that the continued travel by bus was very wearing for Mr Whyman.

The third ship swap occurred between Berching and Vienna. It required an early morning departure at about 8am. This third ship swap was particularly distressing for Mr Whyman. He found that he was very disappointed in the ruined Cruise by this stage and did not want to endure a long bus ride to effect yet another ship swap. He considered leaving the Cruise such was his disappointment, but ultimately did not do so. That decision was essentially because it was quicker and easier to finish the Cruise having regard to where they had reached than to make independent arrangements to reschedule his holiday.

The bus trip to Vienna took about 10 hours and they arrived on the Scenic Pearl later than was scheduled or expected. Mr Whyman and his wife and fellow passengers had about 30 minutes to get ready to travel to a concert which had been scheduled. Whilst the activities in Vienna accorded with what Mr Whyman generally anticipated, he found that any sense of relaxation had been completely overtaken by how much his itinerary had been varied throughout the trip and the constant time constraints on excursions. He was also very tired from the lengthy bus trips. By the time he departed Vienna, he found that the whole ruined cruise experience and tension among the passengers made for a very stressful atmosphere. The accommodation on the Scenic Pearl in Vienna and on its way to Budapest was well below the standard that he had booked and paid for. There was a lack of cupboard space. The shower leaked onto the stateroom floor. The air-conditioning throughout the ship, including his cabin, was not working. The outside temperature was hot and there was no relief to be gained.

Overall, Mr Whyman found Cruise 8 to be extremely disappointing as they had only experienced about three days of cruising, which had meant that they did not see significant parts of the Rhine, Main and Danube Rivers. He felt as though they had instead experienced a floating hotel docked alongside other cruise ships. He was disappointed because he had been expecting to sail into beautiful towns and dock locally, however the docking was generally in remoter locations which were not accessible to any nearby town. He said this in his affidavit, which I accept:

Mr Whyman found that because they were transferred between three different ships throughout the Cruise, he became completely distressed and disappointed by the fact that he was unable to simply unpack bags on one occasion and stay in the same accommodation. The circumstances surrounding the swapping of ships were stressful and the alternative transport provided was sub-standard.

Mr Whyman accepts that Cruise 8 sailed for the final stages from Vienna to Budapest, but he found that he was unable to enjoy those final days because he was still recovering from the exhausting bus trips and the Scenic Pearl was not at all a comfortable environment because of the problems it was experiencing with air-conditioning.

By the end of the Cruise, Mr Whyman was feeling overstressed and totally disappointed. The discomfort he felt towards the end of the Cruise added to his exhaustion and distress.

He said this about how he felt after the Cruise, which I accept:

Such was their distress and disappointment, Mr and Mrs Whyman have not been on another river cruise since their experience on Cruise 8.

Cruise 8 was, as has previously been described, significantly disrupted. I assess the damages for distress and disappointment with respect to Mr Whyman’s experience of Cruise 8 in the sum of $10,000.

Cruise 9 commenced in Budapest on 8 June 2013 and was conducted by Evergreen. Mr Houghton and his wife, who were both retired, booked a cabin on Cruise 9 about 12 months before it left. He planned to travel to Europe and spend some time in Austria visiting relatives before the Cruise and, also, to travel by road through the Czech Republic and Slovenia with his brother who lived in the United Kingdom.

He spent about six months or so researching and finding out as much information as he could about river cruising and the Cruise being offered by Evergreen before booking it.

Prior to this occasion, Mr Houghton had done a number of trips in Australia, New Zealand, the USA and Canada by bus. Whilst he found those trips enjoyable, because they were well planned and organised, he wanted to experience something different with river cruising and, in particular, he did not want the inconvenience of packing and unpacking on many occasions throughout the trip.

He selected the Cruise because it fitted in with his travel plans and, after having a busy week with relatives including his brother, he thought that it would be a good way to relax and unwind over a two-week period. Mr Houghton had not been to Budapest before and, accordingly, wanted to depart from there as a great way to start the Cruise and to set the tone for the rest of his holiday.

Mr and Mrs Houghton, in deciding to undertake the Cruise, had just finished a hectic year which included renovating their family home, and felt, particularly after a busy week of planned travelling with relatives immediately prior to the Cruise, that they wanted a trip that would enable them to relax, have new experiences and have a memorable luxurious holiday. As earlier noted, it was particularly important to Mr Houghton to be able to unpack his bags once and stay in the same accommodation.

As well, Mr Houghton expected to be able to sit on the balcony of his cabin or else on the top deck of the ship to watch the scenery, including castles, go by at a leisurely pace. Mr Houghton was looking forward to the freedom to choose what to do each day, whether it was retiring to his own private cabin to enjoy the scenery or socialising. He was expecting good dining experiences, lots of time to relax and that Evergreen would fulfil their promise of a high standard of service on a relaxing cruise.

Upon arrival in Budapest, Mr and Mrs Houghton were not accommodated on the Amadeus Silver, which was a new ship. Rather, they were accommodated in a hotel somewhere out of the city centre. It was about an hour’s walk uphill from the centre of Budapest. Buses were provided but at irregular and much-delayed intervals to shuttle passengers in and out of Budapest. The fact that the hotel was out of the centre of Budapest and was not readily accessible meant that Mr Houghton’s experience was disappointing for him because he was denied the flexibility which he had anticipated to either be in his room to rest or to walk around and enjoy the sights as he saw fit.

Mr Houghton and his wife were moved from Budapest to Vienna by bus. The bus provided was inadequate because it was not an appropriate long-distance bus. The trip was long and caused significant disappointment to Mr Houghton.

In his affidavit he said, and I accept, this:

In Vienna, Mr and Mrs Houghton and the passengers on Cruise 9 boarded the Amadeus Brilliant which was docked in a noisy area with a pungent smell outside of the city centre. The accommodation was not what was promised or expected and the nature of it left Mr Houghton feeling unenthusiastic without any enjoyment of the ship.

After two nights being accommodated on the Amadeus Brilliant, Mr Houghton and his fellow passengers were told that they would be moved by bus from there to Nuremburg. Mr Houghton found that the bus trip to Nuremberg was quite long and became very uncomfortable because he was required to sit in the same spot for the whole duration. Again, he felt real disappointment about the fact that his freedom of movement and choice were so limited.

By this stage, Mr Houghton was feeling most disappointed to be missing out on so much of the river scenery with each day spent on the bus. He had expected to be spending every day doing or seeing something new along the river but instead, by this stage, had spent most the days on a bus.

Of his time leading up to his departure from Nuremberg, he said this, which I accept:

In Nuremberg the passengers were accommodated on the Amadeus Silver, the ship which was meant to be their accommodation for the entire Cruise. On the evening of 15 June, which was the eighth day of the Cruise, the Amadeus Silver cruised towards Bamberg in the evening. This was the first cruising that had happened on this itinerary. Such was the relief of the passengers that as the ship commenced cruising, there were people cheering all around Mr Houghton. The Cruise then followed largely in accordance with the itinerary after that evening. However, that did not relieve Mr Houghton of his disappointment. He said in his affidavit this, which I accept:

By the time the Cruise had finished, Mr Houghton had found that he had a most disappointing experience. He was completely dissatisfied with his inability to unpack his bags once and stay in the same accommodation throughout the Cruise. He did not feel satisfied and was disappointed by the lack of high‑quality accommodation throughout the first part of the Cruise, including the fact that the ships were docked in out-of-town locations which were unpleasant and did not allow the passengers to readily explore the cities and towns at their own pace.

Mr Houghton was disappointed and dissatisfied with how he was unable to retire to his own private cabin to enjoy the scenery as the ship cruised along the river. He was particularly disappointed at having missed out on so many of the advertised highlights of the trip including sailing on the Danube and a night cruise in Budapest and then sailing out of Budapest. He said this:

He went on to say that the Cruise was much worse than he had expected, and he was left feeling very disappointed. The second half of the Cruise, whilst it was enjoyable, showed him how good the experience could have been if they had had the opportunity to do the full cruise. He found that although that second half was, as I have said, enjoyable, it did not make up for the disappointment he had suffered during the first half and, in particular, did not make up for the long bus days and not being able to cruise on the earlier and significant stretches of the river.

Mr Houghton continues to feel annoyed about what occurred.

Cruise 9 was significantly disrupted. About one half of it had real itinerary changes. Mr Houghton and his wife were accommodated in three different sets of accommodation and generally found themselves most disappointed.

In my view, having regard to all of these circumstances, and in particular the extent of disruption of Cruise 9, I would assess Mr Houghton’s damages for distress and disappointment at $6,500.

Mr Willems was employed full-time as an IT administrator at the time he booked, together with his new partner, Ms Buchanan, on Cruise 9. Neither of them had ever taken a holiday like a river cruise in Europe before. Mr Willems had done some small number of trips to the United States for work but generally regarded himself as an inexperienced international traveller. Mr Willems and Ms Buchanan booked their Cruise about 12 months or so before Cruise 9 commenced. They did so after having spent a month or so examining all of the alternatives. Part of their reasoning for choosing Cruise 9 was that they wished to see and experience Europe from along the main rivers and also to visit the land of Mr Willems’ birth. Ms Buchanan had previously suffered from deep vein thrombosis (“DVT”) and did not want to risk a relapse of that condition by taking a bus tour around Europe. Accordingly, they determined that they would travel on a luxury river cruise with Evergreen and would fly to Europe in Business Class seats.

Mr Willems and Ms Buchanan booked a private Balcony Suite which represented and uplift of a little under 30% above the cost of a base cabin.

In addition to taking the Cruise whilst in Europe they planned to do some further travelling.

Prior to reaching Budapest, Mr Willems and Ms Buchanan had had exchanges with Evergreen staff about the likelihood of the Cruise going ahead. Whilst I am not assessing damages on the basis of what was said or promised by Evergreen in these exchanges, those exchanges are important as they record contemporaneously their feelings.

For example, on 6 June, which was 48 hours or so before the Cruise was scheduled to commence, in an exchange with a representative of Evergreen, who had told Mr Willems and Ms Buchanan that they needed to make their way to the Novotel Hotel in Budapest where they were booked in for two nights’ accommodation, Mr Willems said:

On the morning of 10 June, which was the third day of the Cruise, the passengers, including Mr Willems and Ms Buchanan, were transported by bus from Budapest to Vienna, stopping in Bratislava on the way. The trip took about 9½ hours not including the stop for lunch. Not all of the passengers on the Cruise could be accommodated on the ship in Vienna and some were accommodated in a hotel. The ship in Vienna was moored in an industrial area which gave off a pungent smell. The docking location in Vienna was a long way from the centre of Vienna and was not readily accessible because there was no public transport. After a couple of nights in Vienna, the passengers were transported by coach via Salzburg to Nuremberg. By the time they arrived in Nuremberg they had been on the bus for about 14 hours – which was most uncomfortable and distressing. Mr Willems and Ms Buchanan were particularly concerned about any possible exacerbation of Ms Buchanan’s pre-existing DVT condition. Spending three nights in Nuremberg, Mr Willems and Ms Buchanan and the remaining passengers were then transferred to Bamberg by bus. This was again a very long trip.

The first cruising on Cruise 9 took place on the evening of 15 June 2013.

Mr Willems was particularly disappointed by the end of the Cruise with the long bus trips which he did not find remotely enjoyable. No doubt this was because he had specifically sought to avoid bus travel on the trip and he was left feeling cramped and uncomfortable from the long periods of time he spent on buses. He also felt stressed by his concern for his partner and her health condition.

Whilst travelling on buses, Mr Willems was not provided with food and drink of the kind which he had been promised. The food at the hotel in Budapest was not of a high quality but was, he thought, very ordinary. He said this, which I accept and which is unsurprising:

Speaking of the last few days of the Cruise, Mr Willems said, and I accept:

Mr Willems was extremely disappointed that Cruise 9 did not provide him with the relaxing and enjoyable experience which he had been promised. He was completely dissatisfied with many of the features of Cruise 9, including that he did not get to unpack his bags only once and stay in the same accommodation. He did not get to enjoy a private stateroom from where he could relax and watch the countryside go by. He missed out on 800km of cruising that he had hoped to experience in full and generally speaking, did not feel that the standard of luxury promised was delivered at all.

Ultimately, the Cruise did not allow him to relax and enjoy the break in the middle of his trip that he had planned for and wanted. At the end of the Cruise he was completely disappointed with what he had experienced. He felt shattered, disappointed, angry, upset and unhappy. He thought that the Cruise was a wasted opportunity and regretted purchasing it. He found that he was fatigued after the ordeal of the Cruise and did not enjoy the remainder of his time in Europe as much as he had been anticipating.

I take all of these matters into account in assessing the appropriate sum of damages for Mr Willems. In my view, the appropriate sum of damages for his distress and disappointment is $6,500.

Mr Hiscock, at the time of the Cruise, was 63 years old and was employed full-time by the Government of South Australia as an IT support agent. Together with his wife, he booked a cabin on Cruise 11 about eight months before the Cruise took place. At the time they booked the Cruise, Mr and Mrs Hiscock had only previously travelled at an economy standard – whether they were travelling independently or on one occasion on an ocean cruise. On this occasion, they decided to book a river cruise which was more luxurious than their usual economy standard because they were both nearing retirement and wanted to treat themselves to such an experience. A river cruise in Europe had always been on Mr Hiscock’s “bucket list”.

Mr Hiscock researched cruises for a couple of months before booking Cruise 11. At the time of booking, Mr Hiscock thought the river Cruise was appealing because it would pass through a number of interesting destinations and would provide excellent scenery from the ship. He particularly wanted a 15-day Cruise which was longer than his previous cruise experience, so that he could unpack his bags once and forget about everything for the entire cruise. He expected, in light of what he had read in the Brochure, that he would feel very relaxed after 15 days of being on holiday.

In particular, they wanted to finish the Cruise in the Netherlands so that they could spend a week or so catching up with Mrs Hiscock’s relatives.

For Mr Hiscock, the freedom to choose where to go and what to do on each day was very important. Based upon his previous travelling experience, he did not enjoy being tied to a clock and being required to follow a strict itinerary. However, in researching Cruise 11, he observed that there were a wide range of excursions being offered each day, and that he could decide to do as many or as few as he wished. He expected he would have lots of freedom of choice and movement to explore various things at his own pace. One of the particular features which had attracted him to this Cruise was the capacity to exercise a choice as to whether to go on excursions or stay on the ship and, as well, the choice to retire to the privacy of his cabin and not have to spend time in common areas all the time.

Whilst the Cruise was the most expensive holiday that Mr and Mrs Hiscock had ever undertaken, they made the decision to go on the Cruise based on the Brochure – including what was promised by way of high quality accommodation, food and drink, the promise of visiting so many places to which they had not previously been, and that it was an all-inclusive luxury holiday during which the passengers did not have to worry about anything at all.

It was particularly important for Mr Hiscock “to be able to become fully immersed in the all-inclusive luxury experience, including high quality food and drink” because he had never splashed out and spent so much money on a holiday.

He was also looking forward to sitting back, relaxing and enjoying the scenery from the private balcony which had been allocated. Being able to unpack once and being able to enjoy the scenery from his cabin were two particularly important features for Mr Hiscock in his decision to book the Cruise for he and his wife.

Mr and Mrs Hiscock flew out so that they would arrive in Budapest one night before the Cruise commenced.

Cruise 11 did not commence in Budapest but rather, after staying in a hotel, Mr and Mrs Hiscock and their fellow passengers were driven to Krems, which is a town further along the river in a westerly direction from Vienna. There, they boarded the Scenic Sapphire. The distance between Vienna and Krems was about one hour in the bus. This was extremely disappointing for Mr Hiscock. First, he had missed out on sailing out of Budapest, which he anticipated, from what he had read in the Brochure and the enquiries he made, would be one of the Cruise’s highlights. He was also extremely disappointed to learn that they would not be mooring in Vienna and that instead of cruising along the rivers, he was subjected to a most uncomfortable bus trip. On a break in the bus trip, the passengers had access to public toilet facilities which were filthy and unpleasant. Although there were clean private facilities available, this required the payment of a fee in circumstances where neither Mr Hiscock nor Mrs Hiscock, and I would assume many other passengers, were in possession of the relevant local currency.

Upon arrival on the Scenic Sapphire in Krems, Mr Hiscock was informed that they would not be cruising but would be staying for a few nights. In fact, they ended up staying five nights in Krems and this disruption caused significant distress and disappointment to Mr Hiscock. He felt disheartened to be stuck at what he thought was an isolated industrial surrounding in Krems because there was simply nowhere to go and nothing to see within walking distance.

His experience of talking to other passengers at that time was that they were also commenting on their disappointment about missing out on cruising and using buses. This distressed him because it negatively impacted on the atmosphere of the Cruise.

The industrial harbour in which the ship was moored at Krems had little, if any, view. It was close to a series of factories all of which started work at 5am, with the resultant noise and impact on the passengers. Mr Hiscock found that this did not contribute in any way to his feeling relaxed. Mr Hiscock’s level of disappointment and distress at the continued mooring of the ship in Krems increased as the time went by. This was particularly as he could observe that other boats that had been docked in Krems had commenced sailing along the river.

On 15 June, which was the sixth day of the Cruise, the passengers were required to disembark with their luggage and then travel all day by bus to Regensburg where they arrived at about 8pm. They boarded the Scenic Jewel there. By 16 June 2013, the Cruise was largely back on schedule and the balance of the Cruise proceeded without disruption.

Mr Hiscock found Cruise 11 to be a complete disappointment. He did not have the relaxing 15-day cruise experience which he had been expecting for his once in a lifetime holiday.

He was very dissatisfied with how he was unable to unpack his bags once and stay in the same accommodation throughout the Cruise. That was one of his main expectations at the time he booked on the Cruise.

He did not feel that he had been immersed in an all-inclusive luxury cruise. He felt mostly that he had spent a considerable number of hours travelling by bus to reach the cruise vessels, to swap one vessel for the other and to undertake excursions. This was particularly distressing and disappointing because the buses were very cramped and not at all luxurious. There was little, if any, view of enjoyable scenery from the buses.

When the Cruise finished, Mr Hiscock felt very disappointed. Compared with when he started the Cruise, he felt far worse as his expectations of the luxurious, all-inclusive holiday had not been fulfilled. The fact that the Cruise proceeded without major disruption in the final stages of it did not make up for the disappointment which he had experienced, because he felt that what he had missed out on in the first week was irreplaceable. Because he did not think he would ever be able to afford to go on a cruise again, this was no doubt a particular disappointment. He remains very disappointed.

As can be seen from the expert reports and my earlier conclusions, I am satisfied that Cruise 11 was very significantly disrupted. I assess damages for Mr Hiscock’s distress and disappointment in the sum of $9,000.

Mr Jesche booked on Cruise 11 with his wife Christa. They booked about seven to eight months prior to the date of departure of the Cruise.

After the Cruise, they spent over two months in Berlin visiting family and friends.

At the time of the Cruise, Mr Jesche was in his early 70s and was retired. Because he had been born in Germany and grew up there, he had a lot of family and old friends who lived in and around Berlin.

Mr and Mrs Jesche had travelled quite a lot during their time together. They had travelled around New Zealand for 21 days on a bus tour in 1990. Mr Jesche found the bus tour difficult because he and his wife were constantly surrounded by a large group of people without much time to relax on their own in privacy.

In Australia, they tended to holiday by using a caravan, travelling around Australia quite regularly. Mr Jesche enjoyed these holidays but found that they were tiring and certainly hard work.

By the time he came to book Cruise 11, he found that the adventurous kind of holiday was becoming harder to enjoy and he wanted to experience a more relaxed way of travelling. He had had two knee joint replacements, and that meant that moving around was a lot harder that it was when he was younger. Accordingly, he and his wife decided to book a river cruise with the objective of having a leisurely and relaxed holiday.

Mr Jesche and his wife were very fond of Vienna. They had visited it together on a number of occasions. They were very much looking forward to returning to Vienna in style and enjoying the city again. The itinerary of Cruise 11 was selected by Mr Jesche because he wanted to see the rest of the Danube River and expected that they would have plenty of time to explore the entire river system and enjoy it on the basis of a luxury river cruise of the kind set out in the Brochure. Mr Jesche was also looking forward to the variety of excursions which were offered. In particular, Cruise 11 was selected by Mr Jesche because it provided an opportunity to go and visit Salzburg. He had previously lived and worked close to Salzburg but had never been there. It was a place of real interest to him.

Mr Jesche said, and I accept, this:

Mr Jesche’s expectations were not at all unreasonable having regard to what the purpose of the Cruise was, and the result which he was expecting. He was looking forward to a luxurious cruising holiday with interesting excursions on board a well-fitted-out ship and experiencing good food and wine with good company. He expected to be able to relax throughout the entire Cruise.

Because of his family in Europe, prior to leaving Australia, Mr Jesche had heard about flooding in Europe. He contacted his travel agent, who contacted Scenic on his behalf and reassured him that the floods would not affect the cruise and that it would be proceeding. This was a matter of some relief for Mr Jesche.

Whilst in transit at Sydney Airport, Mr Jesche received a telephone call from his travel agent about the floods. Mr Jesche asked whether or not he could delay his Cruise until the floods had cleared because he was visiting family in Germany and, accordingly, could rearrange his holiday to go on the Cruise later. It seems clear to me that his travel agent contacted Scenic and reported back to him saying that she had done so and that Scenic had indicated that it was not possible to delay the Cruise.

Upon arrival in Budapest, on the first day of the Cruise, Mr Jesche attended a meeting in which he was informed that the water level was too high to cruise and that they would be travelling by bus to Vienna to board the ship. He was very disappointed that they would not be cruising out of Budapest and into Vienna as he had a particular expectation of enjoying that part of the Cruise.

The bus trip to Krems was about eight hours or so with one stop for lunch on the way. It was particularly tiring for Mr Jesche. He was disappointed with that part of the trip because he had not booked for a bus trip and had not wanted to do one.

Because the ship was docked in Krems, it was a significant bus trip to get into Vienna. This had been one of Mr Jesche’s anticipated highlights. He felt as though they did not have enough time in Vienna because of the time occupied in the transfer by bus from Krems to Vienna and return.

He was particularly disappointed to miss out on seeing Dürnstein, a town he had greatly looked forward to visiting.

As I have noted earlier, Mr Jesche and his wife were particularly looking forward to visiting Salzburg but that trip was not available whilst the ship was berthed in Krems. Mr Jesche was extremely disappointed that he had missed out on sailing a large part of the Danube River from Budapest to Krems.

On 15 June 2013, he was required to disembark the Scenic Sapphire early in the morning and then travel all day by bus to Regensberg where they boarded the Scenic Jewel at about 8pm. It was docked in a most unattractive area. Mr Jesche found the bus journey particularly exhausting and uncomfortable and was extremely disappointed by the experience he was having.

By 17 June, which was the eighth day of the Cruise, the cruising itself got underway. He felt bitter that it had taken such a long time before the cruising started. He also was constantly disappointed because he felt he did not have the time remaining on the Cruise to relax as he had hoped and anticipated.

By the end of the Cruise, Mr Jesche felt that although the final stages of the Cruise had proceeded without any major disruption, those stages did not make up for the disappointment and distress at what had occurred in the first part of the Cruise. Mr Jesche found Cruise 11 a very disappointing experience. He had expected to enjoy cruising across a 15-day period, but instead did not get this for almost half the Cruise. He expected a relaxing and enjoyable experience visiting places he wanted to see in a luxurious setting. But by the end of the Cruise, he was just disappointed with what he had received and had no positive feelings about his experience. Rather, he was just happy to get off the ship. He was particularly dissatisfied and disappointed with the fact that he was not able to unpack his bags once and stay in the same accommodation throughout the Cruise.

Because he was spending time in Germany at the end of the Cruise visiting relatives and talking to them, he found that his recounting of the Cruise continued to cause him disappointment and distress.

He said in his affidavit, and I accept, this:

This was a particularly important trip for Mr Jesche. It was much anticipated and, as has earlier been noted above, Cruise 11 was not at all satisfactory.

I assess the damages for distress and disappointment of Mr Jesche in the sum of $9,000.

Mr Peattie, a self-funded retiree, commenced discussing with his wife the taking of a river cruise in 2012. Mr Peattie had some physical disabilities. He had chronic pain conditions in his knee, having had three knee replacements, and other orthopaedic surgery, as a result of being seriously injured in his one-time occupation as a police officer. His knee problems did not lend themselves to coach travel, particularly in his later years and it was for that reason particularly, that he and his wife thought they would explore a river cruise as an ideal way to see a variety of countries and cities and to avoid extended coach travel.

Because of his physical condition, Mr Peattie, together with his wife, closely examined the Brochure and the itinerary for Cruise 11 to try and anticipate how much coach travel was involved. He formed the view that if there was any more coach travel than that noted on the itinerary, he would have considerable difficulty in participating in the Cruise.

About a year prior to Cruise 11, around the time Mr Peattie was booking to go on Cruise 11, he and his wife undertook a coach tour with Scenic around the Northern Territory. For the places he wished to visit, there was no practical alternative to undertaking a coach tour. Although he completed that coach tour successfully, between that time and when he booked Cruise 11, his left knee had deteriorated, and he did not feel that he could manage any further coach tours.

He had previously undertaken a cruise along the Nile River in Egypt. Mr Peattie found the pace of the cruise to be very relaxing and particularly liked being able to decide “whether to undertake an excursion or simply relax on the ship, without being dragged from place to place without a choice”.

The river Cruise was booked by Mr Peattie and his wife to celebrate his retirement from practising as a barrister in New South Wales. He had recently retired from his profession and wanted time as well to recuperate from knee surgery. Prior to commencing the Cruise, Mr Peattie and his wife spent some time motoring around Scotland and then flew to Prague for a tour of Prague before commencing Cruise 11 in Budapest.

On the day of departure from Prague for Budapest, Mr Peattie and his wife and other people following the same itinerary were told that Budapest was under water and instead of travelling there from Prague, they were going to be moved to Vienna by bus. The departure was said to be early the following morning. A bus was provided which was very basic, obviously uncomfortable and provided little leg room between the seats. A video taken by Mr Peattie of that trip showed that it was far from a comfortable bus trip. Rather than travelling to Vienna, after about eight hours of travelling by bus, Mr Peattie and his wife arrived at Krems in an industrial port to find the ship docked there. Krems is about an hour’s drive from Vienna. There was no town near where the cruise ship was moored, there were no signs of shops or anything like Vienna. Mr Peattie described Krems as a heavy industry industrial port on the river. Whilst he found out later there was a township of Krems, it was a bus trip away from where the ship was docked, and there was no public transport.

From Krems where the passengers on Cruise 11 remained until 15 June, all expeditions were conducted by bus. The time taken for the buses to travel from Krems to Vienna (and then return) meant that for each day there was not a great deal of time during which Vienna and its highlights could be enjoyed.

On 15 June, passengers were transferred to a different cruise ship. Initially, the ship which the passengers were on sailed for a short distance and docked in an isolated position on the river, which was not near any town or village. That occurred on the evening of 15 June. The following morning, passengers were asked to be ready and have their breakfast and arrangements concluded by 8am. They were then transferred by bus to the Scenic Jewel which was in Regensburg. That bus tour took approximately 13½ hours. By the time Mr Peattie and his wife arrived on the Scenic Jewel, he was physically and mentally tired from the lengthy and exhausting bus trips. Such was the condition of his knees that he had to take strong pain-killing medication and he was required to use a walking stick for support. At the start of his tour he did not need such additional aids.

After boarding the Scenic Jewel, the trip continued largely in accordance with the itinerary.

Mr Peattie said, and I accept, that his object in undertaking Cruise 11 was to feel rested and relaxed by the time it was finished. He was expecting an easy paced holiday during which he could choose whether to participate in excursions or not, or else to relax on board the ship without being concerned about his physical condition.

It was important to him that he would be able to relax in his cabin on board the Scenic ship with its balcony. He was looking forward to enjoying breakfast while watching the scenery go by and settling into his cabin without worrying about packing and unpacking and moving around all the time as if one was on a coach tour. He was expecting high quality service and a high-quality provision of food and drink. He was expecting a slow and peaceful cruise along the rivers of Europe, seeing those sites of interest to him and enjoying a leisurely and luxurious experience at his own pace.

By the time the Cruise ended, Mr Peattie said, and I accept, that he was completely disappointed with what he had experienced on Cruise 11. This disappointment included the fact that he could not enjoy relaxing in his cabin on board the ship as it sailed down the rivers of Europe without having to worry about packing and unpacking, hours being spent in a cramped bus and generally rushing about. He found that, other than towards the end of the Cruise, he simply had no opportunity to watch the scenery go by whilst sitting back and relaxing. He found it difficult to take much enjoyment from days involving long bus journeys due to the discomfort those journeys caused him. They left him more tired and in more pain than he would have experienced on a luxury river cruise of the kind that he booked and paid for.

Mr Peattie said that in the last day or two of the Cruise, he did begin to experience some periods of enjoyment. However, those periods caused him to reflect on the first part of the tour and to realise what he had missed out on – which made him very disappointed and distressed because he had a feeling that he had been cheated from having similar experiences.

By the time the Cruise finished, he did not feel relaxed and rested as he had expected and he felt like he had accomplished nothing by undertaking the Cruise. He felt exhausted and cheated and was relieved to step off the ship so that he would not have to deal with the Cruise anymore.

Mr Peattie’s feelings of distress and disappointment with the Cruise continued for some time afterwards, in large part because of ongoing correspondence he had with Scenic which did not enable him to put his distress and disappointment behind him.

Cruise 11 was an important cruise for Mr and Mrs Peattie. He wished to celebrate his retirement after a working career – including as a police officer and a barrister. He had mobility issues connected with previous injuries to his knees which had required joint replacement and had specifically chosen a river cruise rather than a bus tour to take account of that.

Cruise 11 was, as previously indicated, very significantly disrupted and it is not surprising that Mr Peattie felt completely disappointed with the Cruise experience. I accept that he could not wait for the Cruise to end.

Taking all of these matters into account, I assess Mr Peattie’s damages for distress and disappointment are towards the upper end of the range of passengers on the Cruise, in the sum of $10,000.

Mrs Shaw and her husband, together with their friends, Mr and Mrs Martin, booked a cabin on Cruise 11, about 12 months before it departed.

At the time she booked on the Cruise, Mrs Shaw had retired from her work at a hospital in the field of dietetics and community health. Her work generally occupied those times when her children were at school or else on weekends when her husband could look after them.

Mrs Shaw had not been to Europe before and, accordingly, decided to look into booking a cruise along the rivers between Amsterdam and Budapest. Mrs Shaw was provided with the Scenic Brochure – which she took home and read carefully. Shortly after reading the Brochure, she and her husband booked on the Cruise. As a consequence of reading the Brochure, Mrs Shaw expected that the Cruise would be a full luxury experience with everything included from unlimited beverages to fine dining and all-day butler service. She thought that the Cruise sounded like the holiday of a lifetime which would allow her to become more and more relaxed with each passing day.

She selected Cruise 11 because she wanted to see the cities between Budapest and Amsterdam and wanted to experience cruising along the Danube River.

She was particularly interested in taking up the excursion to visit Salzburg which she knew to be the setting for “The Sound of Music”. She saw this as being a real highlight of her trip. She was also looking forward to seeing Budapest and Vienna and also experiencing the river system itself. She was looking forward to learning all about the places along the river, discovering them herself so that she could have memorable experiences to last a lifetime that she could share with her family and friends.

Mrs Shaw noticed from the Brochure that she could book a luxury stateroom on a Scenic ship where she could unpack her bags once and stay in the same room through the Cruise without having to move one place of accommodation to another. This was quite important for Mrs Shaw because she and her husband had planned a bus tour after the Cruise and wanted to experience a fully relaxing cruise.

She said this, which I accept:

Mrs Shaw and her husband booked a Balcony Suite with their own private balcony which she expected to be able to use no matter what the weather so that she could enjoy the scenery on offer throughout the Cruise. She was also looking forward to being able to retire to her cabin at any time to rest during the Cruise.

The quality of food and drink was particularly important to Mrs Shaw because she had some quite specific dietary requirements. She wanted to have an experience where she could be assured that there were suitable food options available and one way she thought that could be readily achieved was to have a chef on board who was familiar with her dietary requirements when preparing her meals.

The holiday was a particularly expensive purchase for Mr and Mrs Shaw.

Like other passengers, Mrs Shaw first came to hear about the fact that she would not be joining Cruise 11 in Budapest when she was in Prague on the final day of her pre-cruise tour. She was told that the passengers would be transported to Krems where they would board the ship. The bus trip from Prague to Krems took about six hours. As she was sitting on the bus, she recalls having felt a great sense of disappointment at missing out on seeing Budapest and Vienna from the river. They were two major cities on the itinerary. She had also, as I have earlier mentioned, been looking forward to sailing along the Danube River, but by being transported by bus to Krems, a significant part of the Danube River was omitted.

No food or drink was provided by Scenic on the bus to Krems, but passengers were left to their own devices to purchase food and drink at any stop made by the bus. Upon arrival in Krems to board the Scenic Sapphire, Mrs Shaw found that it was docked in an industrial area and from her cabin she only had a view of a concrete wall to look at for the entire time that the ship was docked there.

The day after arriving in Krems, Mrs Shaw undertook one of the offered excursions by bus to Budapest. The round trip involved about 13½ hours on the bus to achieve that visit. There was only one rest stop in each direction – which was barely enough time for the passengers to use the amenities.

Whilst in Budapest, the maximum time available was four hours of which 1½ hours was occupied having lunch. This was not what Mrs Shaw had imagined and it was certainly a major disappointment to her. The only food she could eat at lunch on that day was a dry bread roll because there was no suitable alternative meal available to accommodate her dietary requirements. The guide that was travelling with the bus was unable to assist her because the guide had a language barrier with the staff at the restaurant. Overwhelmingly, Mrs Shaw was disappointed with the tour to Budapest as it was not leisurely, was too short, she did not get adequate food and 13½ hours was spent on buses going between the ship and Budapest. This, of course, was as opposed to the ship being moored in Budapest and the passengers being able to experience Budapest in a leisurely way.

On the fourth day of the tour, again while the ship remained in Krems, an excursion by bus to Vienna was organised. The journey occupied about 2½ hours each way, but the whole day felt very rushed to Mrs Shaw and it was after 9pm by the time the passengers returned to board the ship for dinner. By that stage Mrs Shaw was feeling extremely distressed and agitated that each day was worse than the one before it. On 14 June 2013, at a meeting with the passengers on board the ship, the Cruise Director informed them that they needed to be transferred to a ship which was about 300km away. Mrs Shaw described her reaction to that news in the following terms, which I accept:

On 15 June 2013, the passengers departed the ship at about 9.30am and arrived on the next ship at about 8pm. It was a very long day sitting on the bus, broken by a short visit to the Melk Abbey. Lunch was provided at a restaurant, but again no alternative meal was made available to Mrs Shaw to cater for her dietary requirements. Again, she was only able to eat a dry bread roll. She was particularly distressed by this incident. She said, and I accept:

She was very disappointed that the excursion to Salzburg was cancelled because she had been looking forward to it.

By 16 June 2013, Mrs Shaw’s recollection is that the Cruise was back on schedule and continued in accordance with the planned itinerary. Even though the Cruise continued according to the itinerary, Mrs Shaw continued to worry that the Cruise would be disrupted and that she would have to pack up and move again. She felt unable to enjoy the remainder of the Cruise and was disappointed by that because of the dissatisfying experience of the first part of the Cruise.

By the time the Cruise ended, Mrs Shaw was very disappointed that she did not get the chance to create as many happy memories as she had expected. She records that looking back on the Cruise, she was completely dissatisfied with how she was unable to experience the 14 days of complete luxury and relaxation that she was so looking forward to.

In particular, she was distressed by Scenic not doing anything to acknowledge or accommodate her severe food allergies whilst on long tours off the ship. On some occasions there were simply no food options available which were suitable for her, and she went hungry.

She said of her distress and disappointment after the Cruise, which I accept:

At the end of the Cruise overall, Mrs Shaw felt completely disappointed. It was much worse than she expected, she was completely dissatisfied with how she was unable to escape and relax, and the Cruise did not allow her to have the experience that she could take pleasure in describing to her family and friends. She said, and I accept:

She found that when she arrived home, the full disappointment of the Cruise set in. It was not assisted by what she regarded as a wholly inadequate refund received from Scenic. She said that this added to her deep feelings of disappointment, hurt and anger from the experience and did not allow those feelings to abate.

The Cruise was for Mrs Shaw and her husband a particularly important one. She had retired and wished to celebrate that event in her life. She was looking forward to being able to relax and enjoy various sights that were promised, the excursions that were promised and being able to pack and unpack on one occasion only.

I would assess the damages for disappointment and distress of Mrs Shaw at $9,000.

Section 61 of the ACL provides guarantees that services provided to a consumer will be reasonably fit for the purposes for which the services acquired by the consumer and also a guarantee that the services will be of such a nature and quality that they might reasonably be expected to achieve the result which the consumer wishes the services to achieve.

In my first judgment, I found that Scenic was in breach of these guarantees for each of the Cruises. These findings remained undisturbed by the appellate process.

The Court of Appeal’s judgment also concluded that Scenic had been in breach of the due care and skill guarantees in respect of Cruises 4, 5, 6 and 7. However, those breaches are contrary to s 60 of the ACL, and the defence raised here based on s 61(3) of the ACL has no application to the due care and skill guarantee.

The scope of each guarantee is defined by the answers to common questions 5 and 6, which respectively record the “particular purpose” for which the services were acquired in this case and the “result’” they were expected to achieve. As noted earlier, these answers reflect the judgments of the proceedings at first instance, on appeal to the Court of Appeal, and on appeal to the High Court of Australia. The answers are:

Both of these answers require an understanding of what the services were that Scenic was providing. The services were described in the answers to common questions 1 and 3 in this way:

Section 61(3) of the ACL is in the following terms:

The Court of Appeal in its judgment when dealing with the effect of the Terms and Conditions of the contract on the services supplied to which the consumer guarantees were applicable, said this:

In considering the s 61(3) defence, the Court must be satisfied by Scenic that any individual group member either did not in fact actually rely on Scenic’s skill and judgment to provide the services which might reasonably be expected to achieve the purpose or the result. Alternatively, the Court must be satisfied by Scenic that it was unreasonable for any individual group member to so rely.

The parties proceeded to make submissions on s 61(3) of the ACL on the basis that it applied to both the purpose guarantee and the result guarantee. This approach seems to be consistent with the Court of Appeal’s judgment in this matter. Neither of the parties, in their submissions, differentiated between the purpose guarantee and the result guarantee. Rather, their submissions applied to both guarantees. I accept that it may be possible in some cases for a defendant to make out a s 61(3) defence in respect of one of the consumer guarantees but not the other. However, in the factual circumstances in this case, such an approach would be illogical. Neither party urged it and, accordingly, the question is whether Scenic has made out the defence in respect of both the breaches of the purpose and result guarantees.

In its submissions, Scenic accepted that the time at which the Court should consider whether reliance existed is at the time of the booking of the Cruise and, further, that the fact that Scenic chose to go ahead with the Cruise at some point later in time is not relevant to the issue of reliance. In oral submissions, counsel for Scenic seemed to submit that reliance may occur at a later point in time. Ultimately, he submitted that the point in time one fixes upon for the purpose of reliance in the context of the defence under s 61(3) does not matter. He made that submission on the basis that in substance the s 61(3) defence comes down to the existence of a sphere of expertise of Scenic which did not in the circumstances here change from the date of booking to the date of embarkation, or the date of completion of the Cruises.

In my view, having regard to the terms of the legislation, the time at which reliance or non-reliance, or unreasonable reliance, is to be considered is at the time of the acquisition of the services. Here, that was at the time the booking was made which, in the cases I have considered, range between a period of about six months and 18 months before the Cruise commenced but was generally about 12 months.

Scenic submits that there was no actual reliance by the group members on Scenic because at the time the booking was made, group members either knew of the Terms and Conditions of the contract which were set out in the Brochure, or else ought reasonably to have known of them. The evidence demonstrates that some of the individual group members read the Terms and Conditions and others did not. There was no evidence as to there being any common understanding of what the Terms and Conditions meant.

Scenic drew attention to cl 2.7 which reads:

Scenic submits that by that clause, it intimated or made known to each of the group members that they must not rely on Scenic’s skill and judgment to ensure that either the purpose or the result guarantee was fulfilled in circumstances which were beyond their control, namely those described in cl 2.7 and those which were specifically noted in cl 2.10, namely (relevantly) road, river or weather conditions, high or low water levels, flooding, lock closures or unscheduled vessel maintenance.

As well, Scenic noted that at the bottom of various pages describing each of the individual Cruise itineraries, the following words appeared:

Scenic submits that since cl 2.7 gives an intimation that consumers should not rely on its skill and judgment, the reasonable consumer would understand that it was not accepting any responsibility for events beyond its control which caused it to be in breach of the purpose or result guarantee. Scenic submits that it could not be rational for a consumer to rely on it where, by way of example, a municipal authority prohibited it from cruising a particular part of the river, or else prevented it from mooring at an intended destination.

In support of its submissions that Scenic could not reasonably be understood to be accepting responsibility for the future provision of services to the requisite standard required by the purpose and result guarantees, Scenic submits:

In addition, Scenic submitted that any reliance was unreasonable because:

It is appropriate to observe that the statutory guarantees contained within s 61(1) and s 61(2) of the ACL are separate from, and stand apart from, the contract which a consumer enters into for the provision of services. It is a matter of fact in each case to determine if the services to be provided are co-extensive with the contract. So much is clear from the judgments of the High Court of Australia and the Court of Appeal in these proceedings.

The nature of the guarantee in each case is that it arises where a consumer, expressly or by implication, makes known to the supplier of the services being acquired either the purpose for which the services are being acquired or else the result that the consumer wishes to achieve.

In my view, on the facts demonstrated in this case, and in light of the previous findings, the plaintiff and group members have proved that they, at least by implication and in some cases expressly, made it known to Scenic that they were acquiring the services for the purpose described and, as well, the result which they wished to achieve. The answer to Q5 and Q6 of the Common Questions set out at [11] above make this clear.

Putting it in summary form, the purpose for which the group members acquired the services was to enjoy an all-inclusive five-star luxury river cruise experience with the additional services promised. The result that they made known was that they wished to receive the services that Scenic had assured them they would receive in the Brochure.

One then turns to the terms of the Brochure which is the basis of Scenic’s submissions. The services which were to be provided were all to be provided by Scenic as part of an all-inclusive luxury package – the Brochure did not suggest that any other party or entity other than Scenic was providing the services. Scenic did not suggest that the passengers had any responsibility for providing any part of the services. On the contrary, the passengers were being enticed by the Brochure to do nothing other than to arrive at the port of embarkation and enjoy all that followed on their entirely unforgettable journey of a lifetime.

In the opening letter of welcome at the front of the Exh P8, the Scenic Brochure, consumers were invited by Mr Glen Moroney, the founder and Managing Director of Scenic, who did not give evidence in the proceedings, that it was his pleasure to invite them to join Scenic Tours for a once-in-a-lifetime cruise along the grand waterways of Europe. He went on to say the following:

Although the Evergreen Tours Brochure (Exh P9) did not include such a direct letter under hand of Mr Moroney, it did include the following descriptions of the Evergreen Tours. First, on the welcome page at the start of the Brochure, the following is written:

Two pages further on in the Brochure is a page with the heading “The Evergreen Experience”. It includes the following:

On the following page, in a banner across the page separating colour photos of various European sights, are the words:

Included in both Brochures are references to staff and in particular, the existence of Cruise Directors.

In the Scenic Brochure, the existence of Cruise Directors is referred to regularly throughout the Brochure. They are described as experienced Cruise Directors. The crew is described as an all-English-speaking crew.

As well, the importance of the crew is part of the Brochure. Under a description that a Scenic Tour is the Ultimate River Cruising Experience, is this statement:

On that page, passengers are encouraged to simply relax and enjoy the experience. It is noted that the crew and tour guides “are among the very best available”.

On each of the pages of the itineraries for the variety of tours offered, it is noted that an experienced Cruise Director is provided on each Cruise. As well, airport transfers are noted as being provided.

In those circumstances, given that when the group members booked the Cruises and the guarantees were engaged, they could not exercise any control over the provision of the Cruise, the level of services that were to be provided, when and how the Cruise departed or, indeed, anything at all to do with the Cruise services that were covered by the purpose and result, I am well satisfied that each group member was entitled to, and did, rely on the skill and judgment of Scenic to provide the services sufficient to achieve the purpose and result guarantees.

Indeed, the very substance of what was said in the Brochures, including: the letter of introduction from Mr Moroney in the Scenic Brochure; the reference in the Evergreen Brochure to the existence of European-based operations teams; and in both cases the provision of experienced staff, in the context of assuring group members that the Cruise being booked was all-inclusive, was that Scenic would provide the luxury which the Brochure promised and that passengers on the Cruises would just have to sit back, relax and enjoy a hassle-free holiday. All of these statements bespeak the exercise of skill and judgment by Scenic in providing the services to the group members.

It may be obvious, but is worth noting here, that there is missing any statement about, or notice to the effect that, the passengers have any role to play in the provision of the Cruise, and any of the services, other than to relax and enjoy the holiday of a lifetime. There is missing from any of these “ecstatic words” any hint from, or reservation by, Scenic that the service and services may not be provided in accordance with what each Brochure says.

It is neither rational nor reasonable to conclude, as Scenic submits the Court should, that the group members or any of the passengers on these Cruises had any ability at all to influence the provision of the services such that one would conclude they were not relying on the skill and judgment of Scenic to provide those services, in all circumstances so as to achieve the purpose and result for which the services were acquired.

The submission that the Terms and Conditions contained in each of the Scenic and Evergreen Brochures (which were in essence identical), in what would colloquially be known as “the fine print” intimated to intending cruise passengers that they should not rely on Scenic’s skill and judgment (or such reliance was unreasonable) cannot be accepted.

There is a further reason why this submission cannot be accepted. I commented on the font size, layout and location of the Terms and Conditions in my first judgment: see [347] and [382]. I said this:

The intimation that Scenic suggests is to be found in cl 2.7 of the Terms and Conditions is buried in small font on a three-column page layout which is very hard to read and is to be drawn from a clause which is not in the plain, effusive language of the earlier much more prominent statements about the luxurious all-inclusive cruising experience. In my view, no group member nor any reasonable consumer would have thought to (nor could be expected to) read the Terms and Conditions so as to find out that they could not rely on Scenic’s skill and judgment to provide the services on the Cruise.

As well, the submission fails because an examination of the Terms and Conditions do not permit such a result. It is necessary in that examination to consider all of the Terms and Conditions together rather than, as Scenic does, to choose one or other clause.

I have previously set out cl 2.7 to which Scenic referred. Clause 2.6 refers to fees which may be charged by Scenic to a passenger in event of a late booking, a variation to the tour or a cancellation of the tour by the intending passenger. Clause 2.8 deals with the obligations of the passenger. That clause provides that the passenger must follow the Tour Director’s instructions at all times to ensure tour safety. It also provides that if Scenic or its staff form a view that a passenger is negatively affecting their own health, safety or enjoyment or that of other passengers, they can terminate the contract. The clause specifies that it is a matter for any intending passenger to have a valid passport and to obtain all necessary entry visas for countries that are to be visited. It warns that if a passenger is refused entry because of the absence of the required documentation, they will be responsible for any costs associated with any disruption including re-joining the tour.

It is to be seen that this clause requires a passenger to rely on the skill and judgment of the Tour Director, and to comply with their instructions. As well, it provides only a limited scope of responsibility on an individual passenger, namely, to look after the requisite personal travel documentation.

Clause 2.9 contains provisions relating to the cancellation of the tour by Scenic. Relevantly there are the following conditions:

Clause 2.10 which is set out in my first judgment at [348] deals with how Scenic can vary the contract. Clause 2.11 deals with how variations will be communicated. Clause 2.12 has been earlier referred to in the context of a notification of general risks.

Clause 2.12 is in this form:

When one examines all of the Terms and Conditions together as a whole, I am not persuaded that a reasonable consumer or any of the group members would take the Terms and Conditions to be notification by Scenic of the fact that any reliance on Scenic’s skill and judgment either was not available or, alternatively, if available, that it would be unreasonable to so rely.

That is because the Terms and Conditions cover the full range of possible circumstances ranging from what Scenic says its tour obligations are; what the passengers’ tour obligations are including following directions given by the Tour Director; the ability of Scenic to cancel or delay the tour and the consequences thereof; the ability of Scenic to vary the contract followed by a notification of what Scenic describes as general risks; followed immediately by a clause dealing with limitation of liability largely relating to the tour risks.

In those circumstances, the reasonable consumer would read the tour Terms and Conditions as setting out the terms and conditions of the contract which govern the parties’ contractual conditions, as to what each party is entitled to do.

Clause 2.9 sets out the rights of Scenic to not operate, cancel or delay a particular tour and what the consequences are. If anything, this clause suggests that Scenic will exercise its skill and judgment about when and whether to operate a cruise.

Clause 2.10, which permits a variation of a tour itinerary, suggests that in the event of high or low water levels, flood or lock closures, Scenic will exercise its skill and judgment to vary an itinerary. Passengers are not invited by this clause to play any role in the contractually permissible variations of an itinerary.

Clause 2.12 comes after these clauses and when read together with the preceding clauses about cancellation, delay and variations, does not suggest that Scenic is abrogating the exercise of its skill and judgment for the provision of cruise services as Scenic now submits.

There is certainly nothing about the Terms and Conditions which would constitute a circumstance, even if read, and even assuming that the reasonable consumer was capable of reading and understanding the Terms and Conditions printed as they are in very small type and in a hard to read layout, did not rely on or that it was unreasonable for the intending passenger to rely on the skill and judgment of Scenic.

On the contrary, the entirety of the services outlined in the Brochure, the way in which they would be provided and the tenor of the expressions used accompanied by the emphasis placed on Scenic’s experience in providing river cruises in Europe and offering all-inclusive luxury tours, leads inevitably to the conclusion that Scenic was exercising skill and judgment, that it was not concerned to differentiate in the way in which it submits now between services it provides and those that are beyond the control of Scenic. Put differently, I am satisfied that each group member relied on Scenic’s skill and judgment and that, contrary to the submissions of Scenic, I am not satisfied that Scenic said or did anything to discourage that reliance, make it only a partial reliance or in any other way make such reliance unreasonable.

In its submission that reliance was unreasonable, Scenic suggested that at the time of booking, the group members’ knowledge or means of knowledge with respect to a flooding event was equal to that of Scenic.

The footnote reference upon which that submission was based was to a sentence in a letter from a group member written to Scenic after that group member’s Cruise had concluded. The letter contained a reference to a 1 in 600-year flood event. Clearly that passenger was making that reference as a consequence of having been through the flooding. However, that passenger does not point to any source of that factual assertion.

Whether or not the flooding was a 1 in 600-year event is simply unproved. There is no doubt, as I said in my first judgment at [155], that no witness was called by Scenic to give evidence about the extent of Scenic’s knowledge of the extent of the flooding and of the river levels in Europe. The highest the evidence rises is the content of an internal Scenic email which is set out at [231] of my first judgment. Even the source for that statement is not revealed.

The material which can be gathered from emails which were sent by Scenic was only that it regarded the high water levels as being “unprecedented”: see [213] and [223].

But more importantly, the Court is being asked to equate the knowledge of group members, most of whom had not taken a European river cruise before, and even those that had have not been shown to have had any particular knowledge of high water, with that of Scenic which was undoubtedly a large organisation, with operations staff based in Europe, staff on the cruise ships who were experienced in cruising along the rivers, and which had been in the business of providing river cruises for many years to first time or infrequent travellers who would have a general appreciation that a cruise may encounter adverse weather conditions. Even if the group members had knowledge that water heights might affect a cruise, that is simply not the same as that of Scenic. How might it affect the cruise is not something which any intending passenger would know. That is because such knowledge is within the scope of those who are experienced in operating the cruise. Intending passengers, the group members, have not been shown to have known of the heights of bridges, the comparative river heights, what height increase in the river level would or would not prevent a cruise travelling and how such things would impact on the navigation of the cruise. These are not matters which I would expect to be within the group members’ knowledge.

I reject the proposition that it was unreasonable for group members to rely on Scenic because their knowledge or means of knowledge was the same as that of Scenic.

Finally, it was said that a reasonable consumer would have obtained travel insurance and that conduct made it unreasonable for the consumer to rely on the skill and judgment of Scenic to deliver the purpose or result notified.

I reject this. First, whether or not a consumer takes out travel insurance will depend upon a broad variety of factors including what the consumer was intending to do whilst away from Australia, what personal health conditions the intending passenger suffered and how that might affect the taking out of insurance. Secondly, what the cost of the insurance was. Thirdly, what the terms and conditions of any available insurance policy were. Naturally, both the cost and terms would relate to coverage and exclusions within the policy. The mere fact that it was possible for a group member to take out insurance does not mean that a decision not to or, alternatively, a failure to take it out constitutes that traveller as a consumer who is not reasonably relying on Scenic’s skill and judgment with respect to the purpose and results to be achieved by the provision of the services.

In summary, I reject the submissions by Scenic that the s 61(3) defence is established with respect to any of the group members.

The services promoted in the Brochure were such, once agreed to by the intending passenger making a booking, as to implicitly record the purpose which the consumer wanted and the result which they expected the services to achieve.

The whole of the circumstances show that the group members as intending passengers relied upon Scenic, a large, apparently reputable, and well experienced river cruise operator to provide the services in a way which would achieve both the purpose and the result. That reliance was plain at the time of booking when the choice offered to intending passengers was to book on the Cruise or not and was not a choice which enabled them freedom to negotiate an individual tour. In those circumstances it is clear that they were relying on the skill and judgment of Scenic to provide the Cruise, and the services which it was obliged to.

The fact that there may have been days upon which the weather was inclement or adverse or perhaps days upon which the water levels might be higher or lower than usual, and even accepting that every group member knew about those matters, does not mean that there was no reliance on the skill and judgment of Scenic to provide the services. On the contrary, the services that were going to be provided and which the Court has earlier found were required to be provided by Scenic, are those which could only be delivered by an organisation exercising its skill and judgment. If it determined to embark on the Cruise, then the consumer guarantees were such that Scenic was obliged to comply with them.

That is not to the detriment of Scenic because it could have chosen, but did not do so, in the range of circumstances described in my first judgment, to cancel or defer the tours. The fact is that Scenic did in fact exercise such skill and judgment as it determined was appropriate and decided to continue with the Cruises without providing the services which would have achieved the purpose or the result which was made known to it.

The s 61(3) defence wholly fails.

The group members claim an entitlement to damages pursuant to s 267(4) of the ACL in respect of the monies they paid for return airfares from their home countries to Europe so as to enable them to embark on the Cruise which they had booked. Scenic resists such a claim and says that it is inappropriate for the Court to award damages of this kind either to any individual group member or on some collective basis.

Section 267 is in the following terms:

Section 267 makes it plain that damages pursuant to s 267(4) are in addition to damages pursuant to s 267(3) – being the subsection under which I considered damages for the reduction in value of the services actually provided.

The failure to comply with the purpose and result guarantees was found in my first judgment to be a “major failure” within the provisions of s 268(1)(a) of the ACL. At [774] of my first judgment, I said:

In analysing whether damages pursuant to s 267(4) of the ACL are available, it seems that the first of a number of pre-conditions is that the services were supplied in trade or commerce to a consumer: s 267(1)(a). That is admitted by Scenic on the pleadings.

The second pre-condition is that the consumer guarantees relating to the supply of services, here the purpose and result guarantees and the due care and skill guarantee, are not complied with. That issue has been resolved in favour of the group members in my earlier judgment and in the judgment of the Court of Appeal and is recorded in the answers to common questions 7, 8 and 12. In summary, there was a breach of the purpose and result guarantees in respect to Cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 & 11. There was a breach of the due care and skill guarantee in respect to, relevantly, Cruises 4, 5, 6 & 7. The fact that there was no breach of the due care and skill guarantee in respect to Cruises 1, 2, 3, 8, 9 & 11 does not affect the eligibility for or calculation of damages under s 267 of the ACL.

The final pre-condition is that in s 267(1)(c), namely that the failure to comply with the guarantees did not occur only because of any act, default or omission by a person unrelated to the supplier either by itself, or an agent or employee, or else the cause of the failure occurred after the services were supplied and was independent of human control. In my first judgment, as explained at [440]‑[450], this third pre-condition is fulfilled. That is because the failures arose within the Scenic group by reason of the employees or agents of that group and occurred at the time the services were being provided.

It is next appropriate to consider whether the claim for damages for consequential loss by way of the value of the airfares said to be wasted as a consequence of the breach of the consumer guarantees, is a loss which is reasonably foreseeable.

Whilst Scenic submitted that damages constituted by the cost of the airfares were not able to be awarded under s 267(4) of the ACL, it did not submit that such damages were not reasonably foreseeable.

I am satisfied that such damages are reasonably foreseeable. There are a number of reasons for this. First, many but not all of the group members had their flights booked by Scenic as part of their Cruise package. Sometimes, depending on the package which was negotiated, the cost of flights was included in the price of the Cruise itself. Secondly, even if Scenic did not itself make the bookings for the air travel, it knew with respect to almost all of the passengers, it would seem, when the passengers were arriving at the embarkation port. That was because it included airport transfers as part of the services provided as part of the Cruise price. Thirdly, the Cruises all took place in Europe. The bookings were made by people in countries outside Europe, typically Australia, Canada, other countries in the Pacific and the United Kingdom. The passengers had to get themselves to the embarkation port and then back home. It was obvious to Scenic that in so doing, passengers would incur costs of one form or another – overwhelmingly, airfares.

The fundamental goal of compensatory damages is to restore the injured party to the position they would have been in had the breach of contract or tort (or breach of consumer guarantee) not occurred: Robinson v Harman (1848) 1 Ex Rep 850 at 855; 154 ER 363 at 365; Baltic Shipping at 362; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 (“Amann Aviation”) at 80‑82 per Mason CJ and Dawson J; at 98 per Brennan J; at 116-117 per Deane J; at 134 per Toohey J; at 148 per Gaudron J; at 161 per McHugh J.

It is worth noting in the judgment of Mason CJ and Dawson J in Amann Aviation the following remarks at page 81:

It is to be noted as Mason CJ and Dawson J said in Amann Aviation, a claimant is not entitled by the award of damages upon breach to be placed in a superior position to that which he or she would have been in had the contract been performed.

In the context of these claims, and consistently with the remarks of Edelman J in the High Court’s judgment in this matter, there is no reason to assess damages according to any different principle than that applicable for breach of contract or tort. The fundamental principle of restoring the claimant to the position they would have been in had there not been a breach of consumer guarantee is the appropriate guiding principle.

The plaintiff submitted that in the application of s 267(4) in the circumstances here, the loss by way of wasted expenditure being the airfares occurred as a result of the failure to comply with the guarantee. The group members submitted that although they may be compensated under s 267(3) for the reduction in value of the services provided, the cost of the airfares were nevertheless wasted because they were spent in order to enable the group members to participate in the Cruise, thereby experiencing all of the services to be provided by Scenic. Where those services were not in fact experienced, then the group members argued that the cost of travel from home to Europe for the Cruise was wasted and recoverable.

The group members also submitted that such costs were wasted in whole where the passengers, although spending a few extra days before or after the Cruise, flew to Europe for the sole purpose of undertaking the Cruise, that they were nevertheless also entitled to a part of the cost of the airfares if the incurring of that cost was for the dominant purpose of taking the Cruise, the primary reason for taking the Cruise or that the Cruise was one of a number of purposes for taking the flight.

Scenic argued that the cost of the airfares in any of the cases articulated by the group members was always an expense which would have been incurred and to award damages by way of the whole or any proportion of the airfares would be to have the effect of overcompensating group members because once group members had received compensation pursuant to s 267(3) of the ACL for the lost value of the services in the circumstances and also damages for disappointment and distress pursuant to s 267(4) of the ACL, they had been restored fully to the position they would have been in had the breaches of the consumer guarantees not occurred.

In addition, Scenic argued that the expenditure on the airfares was not “wasted” because the group members received the full benefit of the flights. That is to say, the flights were taken, they achieved their purpose of transporting the group members from their home countries to the relevant location in Europe and all services related to the flight were provided.

Finally, Scenic submitted that the costs of the airfares were not costs incurred by the group members as a result of any contravention of the consumer guarantees.

It seems to me that the starting point of the analysis on this question is to identify the nature of the breach of the consumer guarantees. As earlier indicated, the breach of the consumer guarantees was found to be a major failure because I was satisfied that the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. This finding is undisturbed and applies to all the group members and in respect of each of the 10 Cruises.

If the consumer would not have acquired the services, then they would not have flown to Europe for the purpose of taking the Cruise. Accordingly, consistently with the remarks of Mason CJ and Dawson J in Amann Aviation, the consumers would not have purchased the airfares and would not have expended the cost of the airfares. In those circumstances, I am satisfied that the cost of airfares can be regarded as falling within the description of wasted expenditure.

However, as Scenic points out, and as the group members’ submissions accept, many of the group members did not travel to Europe solely for the purpose of taking the Cruise. Many spent long periods away from their home base undertaking not just the Cruise but weeks of personal travel or, alternatively, adding other tours to their holiday. Hence, as the group members accepted, the categories of group members could readily be identified.

There are those for whom the sole purpose of travelling to Europe and incurring the airfares was to take the Cruise. In respect of group members falling into that category, I am satisfied that the airfares were wasted, and that they are entitled to damages by way of the cost of the airfares and taxes actually paid by them.

There is no difficulty, as it seems to me, in identifying those group members who fall into such a category. First, the Cruise will be the only reason they travel to Europe. Secondly, that reason may be found even though they may spend two of three nights, after landing on their way to the city of embarkation, or else in the city of embarkation and two or three nights in the city where the Cruise finished, or else on their way to the airport of departure from Europe. The point to be made is that other than flying to and from Europe to take the Cruise, although there may be some incidental time spent other than in the port of embarkation or disembarkation it can be readily determined that such group members travelled to Europe for the sole purpose of the Cruise.

In my view, those group members in that category are entitled to a full refund of their airfares and taxes which they paid. On the evidence before the Court, the claimants who would fall into that category are: on Cruise 2, Ms Jennifer Bosich and Mr Paul Osenton; on Cruise 4, Ms Patricia Komiyama; on Cruise 7, Mr Thomas Davis; and on Cruise 8, Mrs Janice Robinson.

Other group members who fall into this category of travellers are, in my view, entitled to recover the full cost of their airfares as wasted expenditure.

A more difficult circumstance exists in circumstances where the Cruise was the dominant purpose for travelling from their home country to Europe. A good example of this may be argued to be the plaintiff, Mr Moore. As described in my first judgment, Mr Moore booked a package which was described in the booking advice issued to him on 6 September 2012 as “Paris and Jewels of Europe (PACR 310513.1) from Paris to Bud”. Mr Moore and his wife flew to Paris, arriving on 1 June 2003, stayed for two nights in a Paris hotel before travelling by train to Amsterdam to embark on Cruise 8. Those nights in Paris were not part of the Cruise and were not part of any other group travel. In the case of group members such as Mr Moore, it becomes an individual question of fact as to whether or not Mr Moore would have travelled to Europe if there had not been any consumer guarantee failures. In other words, if he would not have acquired the cruise services which he did, would he have nevertheless travelled to Europe.

In Mr Moore’s case it is self-evident that he would not. No reasonable consumer would travel to Europe to spend two nights in Paris and then come home. In my view, Mr Moore is entitled to a full refund of his airfares and taxes by way of compensation under this heading.

At the other end of the spectrum of travel is that described by one of the claimants whose damages are being assessed, namely Mrs Morna Hill, who, before and after the time she spent on Cruise 1, travelled throughout Europe and the United Kingdom for, in total, about 6 weeks.

In that circumstance, I am not, and could not be, persuaded that the airfare was a wasted expenditure. Clearly it was not. This claimant received the full benefit of the airfare regardless of whether they would have booked on the Cruise or not.

Between those examples, there are many, many others. Indeed, as the plaintiff submits, there are ways in which those examples could be categorised.

I am not persuaded that I can make findings which accord with the plaintiff’s categories. Nor am I persuaded that one can apportion airfares between the different purposes of travel where more than one purpose exists. It seems to me that apportionment is not consistent with wasted expenditure. The notion of damages by way of wasted expenditure is costs which would not have been incurred but for the breach of contract, the tortious conduct or the breach of statutory guarantee. Once one gets to the stage of suggesting an apportionment exercise, then one is accepting that the damages were not wasted because, at least in part, they would have been incurred.

In my view, the s 267(4) damages permissible with respect to airfares is limited to those whose sole purpose was to attend the Cruise, and in respect of whom it can be readily concluded that they would not have travelled to Europe at all had they not booked for the Cruise. In those circumstances, Mr Moore and his wife would be entitled to recover their expenditure as would those to whom reference has been made.

I am not in a position to identify others within the group who would fall into that category, other than those whom I have earlier named.

Interest is payable on this head of damages in accordance with and in the same way as I have earlier discussed at [82] for the lost value damages claim.

The plaintiff submitted that the Court having determined damages, as I have, should engage in the aggregation of those damages on a cruise-by-cruise basis.

Having regard to the way in which I have determined damages, which did not accord with all of the submissions of either the plaintiff and group members on the one hand or the defendant on the other, it is not appropriate for me to determine the aggregation question without further submissions from the parties in light of my conclusions.

The question of aggregation of damages, which requires estimation or prediction, is best determined by reference to identified facts and identified heads of damage and sums of money.

In those circumstances, I will defer considering any question of aggregation until receiving further submissions.

However, as will be clear from the way in which I have awarded damages, the awards of damages pursuant to s 267(3) by way of lost value will be identical, at least in percentage terms, for all passengers on each Cruise.

Insofar as I have awarded damages for distress or disappointment pursuant to s 267(4) of the ACL, it will be observed that the damages are awarded on an individual basis, but they necessarily reflect the degree of disruption experienced on each of the Cruises. Those Cruises that had greater degrees of interruption, I have concluded as a matter of general approach, resulted in greater disappointment and consequent distress. Damages are nevertheless a matter to be assessed on a case-by-case basis.

Insofar as group members are entitled to damages for wasted expenditure pursuant to s 267(4) of the ACL by way of airfares, as I have explained, where the sole reason for the travel to Europe was for the purpose of obtaining the cruise services, then those airfares will be recoverable. It will be a matter of fact in each case as to whether or not it was for the sole purpose. In making that assessment, as I have remarked I do not regard it as at all unreasonable that group members will have spent two or three nights in Europe including in the port of embarkation before the Cruise and two or three nights in the port of disembarkation or travelling to the country of departure.

In other cases, it will require a case-by-case analysis of whether but for the breach of the consumer guarantee, the airfares would have been incurred in any event.

In light of the various complexities in the assessment of damages which I have undertaken, the appropriate course is to allow the parties time to consider the judgment and the formal orders which ought to be made, and to invite counsel to confer on the orders which the Court ought to make.

I order the proceedings be fixed for directions before me on Friday 13 May 2022 at 9.30am. It would be appropriate for counsel to provide to my chambers 24 hours before that hearing the formal orders that are either agreed, or where not agreed, the orders that each contend ought to be made.

The parties have liberty to apply to relist the matter if further time is needed, or for any other reason.