scenic tours pty ltd

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Combining innovative design, world-class facilities and state-of-the-art technology, Scenic Eclipse sets the benchmark in 6-star cruising. Unrivalled worldwide voyages, exceptional once-in-a-lifetime experiences, and a dedicated crew await you on board The World’s First Discovery Yachts.  

The Scenic Difference

The difference is in the detail.

Explore further than ever before on board  Scenic Eclipse , The World’s First Discovery Yachts™ . Setting the benchmark in 6-star ultra-luxury cruising, we’ve changed the way you experience the world, travelling to some of the most remote regions on Earth. Each of our handpicked itineraries offers an exceptional small-ship cruising experience that puts you, our guest, at the heart of everything decision we make. This is more than ocean cruising, this is 6-star ultra-luxury cruising in a class of its own.

Unrestricted global navigation

Combining world-class design and ground-breaking technology, Scenic Eclipse has been purpose-built to sail to the most remote and extreme environments. We set the benchmark in 6-star ocean cruising for an unparalleled discovery experience. 

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Travel lesser-known routes with a maximum of 228 guests for immersive access to dreamlike destinations. Experience optimal sightseeing on board one of two state-of-the-art helicopters^ and a submersible^.

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Our expert Discovery Team is hand-selected for each voyage and destination according to their areas of expertise. They’ll safely guide and educate you every step of the way, ensuring you get the most out of the destinations you visit.  

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Whether it’s watching authentic Asian street food sizzle on a teppanyaki grill, or the open galley at Chef's Table, a choice of up to 10 dining experiences ensures every meal is a moment of sensory indulgence.

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Scenic Eclipse is designed for you to indulge and unwind. From the 550m² Senses Spa++ to the Pilates and yoga studio, and the spacious pool and spa terraces, all your wellness needs are covered.  

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Scenic Eclipse sets the standard in ultra-luxury cruising with 114 luxurious suites across five decks. Each one features all the amenities you would expect from a 6-star hotel, plus a personalised butler service.

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Be enriched with all-inclusive excursions on each Scenic Eclipse voyage, immersing you in your destination to create stories for life.  

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Discover awe-inspiring destinations to plan your ultra-luxury journey of a lifetime. Find out where Scenic Eclipse will be and when with our cruise calendars. 

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The NSW Court of Appeal recently delivered an interesting judgment in the matter of Scenic Tours Pty Ltd v Moore [2023] NSWCA 74 .

The Plaintiff in this matter, Mr David Moore, was the lead Plaintiff in a class action against Scenic Tours (“Scenic”) by thousands of disgruntled cruise ship passengers from multiple separate cruises.

For extra context, we suggest reading our 2020 article discussing Moore v Scenic Tours Pty Ltd [2020] HCA 17 :

Damages for ‘Disappointment and Distress’ Available to Consumers for Breaches of Consumer Guarantees for Travel and Recreational Contracts .

The Plaintiff booked a European river cruise tour through Scenic Tours (‘Scenic’).  The cruise was promoted as a luxurious, once in a lifetime cruise.  Inclement weather meant that most of it was undertaken by bus and not boat, which did not suit the Plaintiff who had spinal issues.

The Plaintiff alleged breaches of the Australian Consumer Laws including that the tour was unfit for purpose ( Section 61(1) of the ACL ).

Scenic argued that the poor weather and flooding were totally out of their control, and in any event should have been anticipated by passengers.

In the earlier decision Moore v Scenic Tours Pty Ltd  [2020] HCA 17 the High Court overturned a successful appeal by Scenic, and held that damages for disappointment and distress were available to the Plaintiff and weren’t subject to the restrictions of the Civil Liability Act 2002 .

The High Court sent the class action back to the original Supreme Court judge, Justice Garling, to determine the remaining claims - including as assessment of damages for all group members.  Damages were assessed at approximately $8.4 million for the reduction in value of the cruises, and other resultant damages were awarded. 

Damages for disappointment and distress over the experience were also awarded between $6,000 to $12,000 in respect of a sample of group members, as well as compensation for airfares to Europe.

The decision

The Court of Appeal found against Scenic’s submission that Justice Garling erred in rejecting its defence to allegations that it had breached consumer guarantees, and therefore had wrongly awarded damages for the reduction in value of the cruises, as well as for distress and disappointment.

Specifically, the Court of Appeal rejected Scenic’s reliance on Section 61(3) , which provides that the Section does not apply if the circumstances show that the consumer did not rely on, or it was unreasonable for the consumer to rely on, the skill or judgment of the supplier (as had also earlier been determined in relation to Mr Moore’s claim).

However, the majority of the Court of Appeal upheld the challenge to the award of damages for airfares to Europe, in part because it had not been established that none of the group members would have gone on the cruise if they knew the consumer guarantees would have been breached.

Implications of the decision

As with the earlier High Court decision, we can only expect to see ever increasing claims by disgruntled passengers, which will now often include a component for distress and disappointment.

If you have a query relating to any of the information in this piece, or you would like to speak with a member of  Holman Webb's Insurance team  in relation to a matter of your own, please don't hesitate to reach out today.

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Copyright HolmanWebb 2024

High Court uncaps damages for disappointment and distress in cruise ship class action

Authors: jack pembroke-birss, max brighton.

Australia |  Publication |  April 2020

Introduction

Key takeaways, brief background, mr moore’s claim for damages for disappointment and distress, what was the issue before the high court, what did the high court decide, how are damages for disappointment and distress calculated, could scenic tours have excluded its liability, what does this mean for businesses providing consumer services.

The High Court’s decision in the class action of Moore v Scenic Tours Pty Ltd 1   has significant implications for businesses that provide services aimed at enjoyment, relaxation, pleasure and entertainment.

These include services provided by travel agents, hotels, cruise ship operators, airlines, event and wedding planners, spa-operators and businesses offering other travel and recreational services.

In this update, we provide an overview of the decision, review how damages for disappointment and distress are assessed, discuss whether liability can be limited for this type of loss, and consider the broader implications for service providers.

• The effect of the decision is to remove the cap on damages for disappointment and distress arising from breach of contract or the consumer guarantees in the Australian Consumer Law
• Claims for disappointment and distress are not personal injury damages
• Any reasonably foreseeable losses for disappointment and distress caused by a failure to comply with the consumer guarantees are recoverable by consumers
• Given the subjective nature of the assessment of damages for disappointment and distress, it will be difficult for service providers to quantify the amount for which they could be liable
• Service providers cannot exclude, restrict or modify liability for such losses
• The decision has increased the risks to service providers of class actions

In 2012, Mr Moore and his wife booked a European river cruise holiday with Scenic Tours. The two week packaged holiday was described as “a once in a lifetime cruise” in “all inclusive luxury”.

Mr Moore and his wife chose Scenic’s river cruise because they wanted to see different locations in Europe without having to unpack their belongings more than once. The river cruise also suited Mr Moore because he found it difficult to spend extended periods of time sitting down, particularly in confined spaces, following spinal surgery. The tour was paid for 12 months in advance with what Mr Moore described as his “life savings”.

The tour commenced in Paris on 31 May 2013. The river cruise along the Rhine, Main and Danube Rivers was scheduled to depart from Amsterdam on 3 June 2013 on board the Scenic Jewel and to conclude two weeks later in Budapest. The cruise was severely disrupted by adverse weather conditions that resulted in high water levels on the Rhine and Main Rivers.

Instead of cruising for ten days as scheduled in the itinerary, Mr Moore’s experience was of many hours spent travelling by bus; he cruised for only three days. The cruise also began on board a different vessel to the luxurious Scenic Jewel . By the time the cruise concluded in Budapest, the Moores had changed ship at least twice.

The holiday tour fell far short of the “once in a lifetime cruise” in “all inclusive luxury’ that Mr Moore was promised by Scenic. 2

A class action was commenced by Mr Moore in the Supreme Court of New South Wales on behalf of 1,500 passengers of 13 Scenic cruises that were disrupted by the adverse weather conditions.

It was not in issue before the High Court that Scenic’s attempts to perform its contractual obligations resulted in breaches of consumer guarantees in the Australian Consumer Law (the ACL ).

Those consumer guarantees included supplying the cruising service with due care and skill, supplying a tour which was fit for the purpose, and supplying a tour of a nature and quality that passengers could reasonably expect.

Mr Moore claimed damages in respect of loss suffered by him as a result of Scenic’s breaches. The alleged loss included, among other things, disappointment and distress for breach of contract to provide a pleasant and relaxed holiday. 3

That type of loss was recognised as a compensable loss in the High Court’s decision in Baltic Shipping Co v Dillon which related to the sinking of the cruise ship MS Mikhail Lermontov in the Marlborough Sounds in New Zealand in 1986. 4

The issue before the High Court was whether section 16 in Part 2 of the Civil Liability Act 2002 (NSW) (the CLA ) applied to preclude Mr Moore from recovering damages for disappointment and distress for a failure to comply with the consumer guarantees in the ACL.

The High Court determined that section 275 of the ACL, a Commonwealth law, picked up and applied Part 2 of the CLA. Part 2 of the CLA applies to awards of personal injury damages whether the claim is brought in tort, in contract, under statute or otherwise.

However, the High Court accepted Mr Moore’s argument that his claim for disappointment and distress was not a type of personal injury damages. That meant that his claim for disappointment and distress was not regulated by Part 2 the CLA. 5 Rather, Mr Moore’s claim for disappointment and distress was regulated by the common law principles relating to the assessment of damages for that type of loss.

Until the High Court’s decision, it had been unclear whether Baltic Shipping  applied independently of the civil liability regime. The position in New South Wales and other jurisdictions with a similar civil liability regime was that damages for disappointment and distress constituted non-economic loss in relation to personal injury. Under those legislative schemes, recovery for such losses were precluded unless the severity of that loss exceeded the threshold amount. 6

Relevantly, section 267 of the ACL provided that Mr Moore could “recover damages for any loss or damage suffered” by him “because of the failure to comply with” the consumer guarantees “if it was reasonably foreseeable” that Mr Moore “would suffer such loss or damage as a result of such a failure.”

Mr Moore’s claim for $2,000 in damages for disappointment and distress, which was awarded at trial, was reinstated by the High Court. 7 The claims for damages by the other class members have been remitted to the trial judge for determination.

A consumer may recover damages against a supplier for any loss or damage suffered by the consumer because of a failure to comply with a consumer guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. 8 For a breach of contract that is not also a failure to comply with a consumer guarantee, the type of loss must be not unlikely to result from the breach.

Given the nature of the services being provided by Scenic Tours, it was reasonably foreseeable that Mr Moore would suffer the disappointment and distress that he did.

The trial judge observed that Mr Moore’s claim of $2,000 for disappointment and distress was “modest” and that he would have been prepared to award a greater amount. 9

The trial judge referred to several cases where up to double the cost of the holiday or fare was awarded as damages for disappointment and distress. 10

We set out below the approach taken by courts 11 when assessing damages for disappointment and distress:

• Damages for disappointment and distress are assessed ‘at large’ or, in other words, are not capable of precise calculation.
• The amount of damages must be fair and reasonable compensation for the disappointment and distress caused.
• Each case must be assessed according to the subjective disappointment and distress which a person has suffered having regard to all of the facts and circumstances.
• The amount awarded should not reflect the situation of other parties in other actions, even if the situation is similar.
• Only if an award is grossly disproportionate will it be set aside – in deciding whether there is a disproportion, it is not resolved by reference to some norm or standard derived from a consideration of amounts awarded in other cases.

In addition to damages for disappointment and distress, the High Court said 12 that damages for what might broadly be described as mental harm consequent upon a breach of contract are also available at common law in categories where the harm is: 

• ‘pain and suffering’ consequent upon physical injury; and
• ‘vexation and discomfort” consequent upon physical inconvenience.

Damages for these types of losses are assessed in a similar way to the approach detailed above.

The effect of the High Court’s decision is to uncap liability for breaches of contract and the consumer guarantees for ‘disappointment and loss’ for services aimed at pleasure or relaxation, and for ‘vexation and discomfort’ consequent upon physical inconvenience. ‘Pain and suffering’ consequent upon physical injury will continue to be regulated by Part 2 of the CLA. 13

While the ACL permits a supplier of goods and services to which the consumer guarantees apply to limit liability for failures to comply with the consumer guarantees, those limitations only apply to good and services that are not goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.

The type of services that Mr Moore contracted for were clearly of a kind ordinarily acquired for personal, domestic or household use or consumption.

A term of a contract is void to the extent that it purports to exclude, restrict or modify liability for the failure of goods and services of a kind ordinarily acquired for personal, domestic or household use or consumption to comply with the consumer guarantees. 14

Courts will now assess damages of this type of loss according to the statutory and common law principles discussed above. Given the subjective nature of that assessment, it will be difficult, if not impossible, for service providers to quantify the amount for which they could be liable.

Importantly, for the reasons discussed above, service providers will not be able to exclude, restrict or modify liability for such losses.

We expect to see a surge in claims for disappointment and distress, pain and suffering, and vexation and discomfort by consumers due to the recent disruption to global travel caused by the COVID-19 pandemic: the disappointment and distress of a failed holiday, pain and suffering caused by the physical injury of contracting COVID-19, 15 and vexation and discomfort due to being quarantined and detained in hotels and on cruise ships for extended periods. 

The question will be whether it was reasonably foreseeable that consumers would suffer these types of losses as a result of a failure to comply with the consumer guarantees. Given the large number of consumers who have received services and experienced one or more of these type of mental harm, the risk of service providers facing class actions has never been more acute.

Moore v Scenic Tours Pty Ltd [2020] HCA 17.

Moore v Scenic Tours Pty Ltd [2020] HCA 17 at [6]-[7].

Sections 60, 61(1) and 61(2) of the ACL.

(1993) 176 CLR 344.

Baltic Shipping Company v Dillon (1993) 176 CLR 344.

See section 16(1) of the CLA: “No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.”

Mr Moore was also awarded $10,990 in compensation for loss of value under section 267(3) of the ACL.

Section 267(4) of the ACL.

Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [919].

Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [914].

See Moore v Scenic Tours Pty Ltd [No 2] [2017] NSWSC 733 at [912]-[913]; Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at [11]; Rogers v Nationwide News Ltd (2003) 216 CLR 327 at [69].

Moore v Scenic Tours Pty Ltd [2020] HCA 17 at [69].

Practice areas:

• Litigation and disputes
• Class actions
• Hotels, hospitality and leisure

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The Ocean Experience

Where ultra-luxury meets worldwide discovery.

• Ocean Experience
• Previous page

Experience   the extraordinary in every way

Combining innovative design, world-class facilities, and state-of-the-art technology, Scenic Eclipse sets the benchmark in 6-star cruising. Unrivaled worldwide voyages, exceptional once-in-a-lifetime experiences, and a dedicated crew await you on board The World’s First Discovery Yachts™.

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Scenic Tours Pty Ltd.

Description.

Scenic Tours Pty Ltd is a limited by shares Australian proprietary company. Located at NSW 2300 since 2016-07-05 the company is, as the updated on 2023-02-18 ABN database shows, registered. The company has been registered for Goods & Services Tax since 2000-07-01. Known company numbers for Scenic Tours Pty Ltd are as follows: ACN - 002715602, Australian Business Number - 85002715602. Scenic Tours is one of the trading names this company has used, to be precise, the trading names list includes 2 positions that is Scenic Tours since 2003-02-13, Australian Scenic Tours since 2000-03-10 to 2003-02-13. Scenic Tours Australia is an example of a business name Scenic Tours Pty Ltd used. The complete list includes 41 business names. Scenic Tours Australia was the company's business name from 2023-02-18. Other business names include Scenic Tours Africa and Outback Explorer Tours. This Australian proprietary company was previously located in NSW 2300 (from 2014-09-21 to 2016-07-05), NSW 2300 (from 2014-01-10 to 2014-09-21), NSW 2300 (from 2001-09-28 to 2014-01-10). We found 40 trademarks that reference this company. 1992-05-14 is the date the documents needed to start the registration process of trademark no 578353 were submitted. This trademark is categorised as "composite" and its application status is "removed, live". Other company trademarks include trademark number 578354, application status "removed, live", registered on 1992-05-14 in the "composite" category;trademark number 640669, application status: "registered, live" registered on 1994-09-16 in the "fancy series" category.

Details for ABN 85002715602

Business names, trading names, main location, goods & services tax (gst).

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Company Trademarks

Trademark number: 578353, trademark number: 578354, trademark number: 640669, trademark number: 791366, trademark number: 795221, trademark number: 799748, trademark number: 853609, trademark number: 1090661, trademark number: 1210303, trademark number: 1230965, trademark number: 1231459, trademark number: 1231461, trademark number: 1287453, trademark number: 1287454, trademark number: 1287455, trademark number: 1535670, trademark number: 1535812, trademark number: 1536646, trademark number: 1545900, trademark number: 1553908, trademark number: 1553910, trademark number: 1553959, trademark number: 1553961, trademark number: 1553963, trademark number: 1553965, trademark number: 1559777, trademark number: 1568840, trademark number: 1568841, trademark number: 1608704, trademark number: 1651104, trademark number: 1651105, trademark number: 1651106, trademark number: 1651107, trademark number: 1651108, trademark number: 1651109, trademark number: 1658872, trademark number: 1658873, trademark number: 1658874, trademark number: 1664213, trademark number: 1664713, financial services authorised representative data, licence number: 000386837, licence number: 000241713, licence number: 000222444, licence number: 000239545, licence number: 000245631, find company, nsw 2300 location, selected companies in this postcode area.

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Africa Land Journeys  

Prepare to be amazed by the breathtaking marvels that await you in Africa. 

• Luxury Land Journeys | Escorted Tours
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Take in iconic landmarks and a kingdom teeming with magnificent creatures.

Experience the rich traditions, wildlife, and cultures of this beautiful continent with a handcrafted land journey. From South Africa's breathtaking natural landscapes and the majestic Victoria Falls to Kenya and Tanzania's expansive savannahs.

Explore Africa

Discover the highlights awaiting you in Africa, Kenya and Tanzania to enhance your luxury Africa escorted tour with Scenic.

• South Africa & Victoria Falls
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Why choose Scenic? 

It’s more than an escorted land tour - it’s a luxury journey in a class of its own. Enjoy the combined ease of personalised travel, with a selection of experiences that offer you a true insight into the culture, landscape and history of Africa.

Small Group Touring 

Enjoy fully escorted small group touring with a maximum of 30 guests on your land journey in Africa (24 guests in East Africa). You’ll have unparalleled access at a comfortable pace as you explore your destination.

Scenic Special Stays

A selection of handpicked, luxury accommodation will ensure your land journey in Africa becomes that little bit more extraordinary. A choice of remarkable hotels notable for their location, character and heritage are available. Or stay in a selection of exclusive game lodges such as the Sabi Sabi Bush Lodge in South Africa’s Kruger National Park or Sarova Mara camp in Kenya’s renowned Maasai Mara National Reserve.

Scenic Enrich

Be immersed in the cultural heart of your destination with our exclusive Enrich experiences. Journey into the traditional life and culture of warrior tribes like the Maasai and Zulu or indulge in an authentic African-style bush breakfast amidst the breathtaking open plains of the Maasai Mara. These once-in-a-lifetime moments are just a taste of what awaits you on our all-inclusive experiences.

Scenic Freechoice

Enjoy the highlights of Africa with Scenic’s all-inclusive Freechoice excursions. Choose from diverse sightseeing, activities and dining options at a pace that suits you. From touring South Africa’s famous vineyards or vibrant townships, walking in Nelson Mandela’s footsteps, in the tracks of an impala or on foot through bushland, you can choose from a wealth of experiences. 

Expert Tour Directors & Guides

When you embark on your luxury land journey, you can do so with the assurance that we’ve taken care of all the small details. Your expert, handpicked Tour Director, driver and local guides are dedicated to delivering an exceptional level of service to the Nth Degree and will be on hand to ensure you love every moment of your trip.

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