High court win for Australian whose flood-hit Europe cruise became a bus trip

A New South Wales teacher whose luxury “once-in-a-lifetime” European waterways cruise became a bus trip across a flooded continent has had a win in the high court.

Seven judges on Friday unanimously allowed an appeal by David Moore, ruling he was entitled to damages for disappointment and distress caused by a breach of consumer guarantees under Australian consumer law.

In 2017 a NSW supreme court judge ordered the travel company Scenic Tours to pay Moore a $10,990 refund for the tour as well as $2,000 in damages for disappointment and distress.

But the court of appeal later set aside the $2,000 component, finding that the law relating to such a claim did not apply to “loss” sustained outside NSW.

At the time of Justice Peter Garling’s judgment, the lawyer behind Moore’s class action said he expected the award would be the first of a multimillion-dollar compensation payout to more than 1,200 holidaymakers.

Heavy rain had fallen in Europe in the weeks leading up to the June 2013 cruise, leaving towns and cities along the waterways between Amsterdam and Budapest flooded. Ships were unable to pass under bridges and some docking facilities could not be used and had been washed away.

Moore said he and his fellow travellers had spent their holiday being shuffled around Europe, often by coach.

In a letter to Scenic at the end of the trip, Moore and his wife said they believed they were going to relax in their own cabin with a balcony, cruise down the Rhine and Danube and enjoy the medieval castles, churches and culture of Europe.

“As it happened we were stuck between other riverboats with no views, in an industrial area or the cruising was done late at night whilst we were asleep,” the letter said.

“Transferring from ship to ship involved lengthy travel (sometimes in coaches without air-conditioning or working toilets).”

Garling found that Scenic was bound by Australian consumer law and obliged to provide information about events that would have impacted on a passenger’s ability to enjoy the cruise.

The high court upheld the disappointment and distress entitlement, ordering those damages to be reinstated and for Scenic to pay interest.

The question of whether other members of the class action may recover damages for disappointment and distress has been sent back to Garling for consideration.