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Damages – consumer guarantees – personal injury

In Moore v Scenic Tours Pty Ltd [2020] HCA 17 (24 April 2020) the appellant, Mr Moore, booked a holiday tour for himself and his wife with the respondent, Scenic.

The tour, which involved a European river cruise, did not proceed as promised. It was not in issue that Scenic had breached consumer guarantees in the Australian Consumer Law (ACL). 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 a contract to provide a pleasant and relaxed holiday recognised as a compensable head of loss in the High Court’s decision in Baltic Shipping Co v Dillon (1993) 176 CLR 344. The issue for the High Court was whether, as Scenic contended, s16 in Pt 2 of the Civil Liability Act 2002 (NSW) (CLA) applied to preclude Mr Moore from recovering damages for loss of that kind.

Mr Moore submitted, among other things, that loss consisting of disappointment and distress for breach of a contractual obligation to provide a pleasant and relaxed vacation was not precluded by the provisions of Pt 2 of the CLA, because those provisions were concerned exclusively with claims for damages for personal injury; and his claim for the disappointment of his expectation of a pleasant and relaxed vacation was not a claim for personal injury. The High Court accepted that submission.

Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly. Edelman J separately concurring. Appeal from the Court of Appeal of the Supreme Court of New South Wales allowed.

David Kelsey-Sugg is a Victorian barrister, 03 9225 6286, email dkelseysugg@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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