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Damages for disappointment can be recovered when a consumer acquires services that are intended to provide pleasure, relaxation or enjoyment but don’t live up to their promise.
Substandard travel and holiday services – and particularly cruise disappointment – are especially susceptible to such claims.
The consequential losses of a travel service provider’s failure to deliver on the promises it makes in a glossy brochure include those for distress, vexation, discomfort, frustration and of course, disappointment.
They are often associated with physical inconvenience that arises from the promises not being fulfilled and the damages referable to such “expectation” losses are labelled “disappointment damages”.
Can a passenger recover disappointment damages from a cruise ship operator if they are unable to participate in and enjoy the pleasures promoted by the brochure without establishing any specific deficiencies in the fitness or suitability of the services provided?
Apparently not, according to the ruling of a single judge in the Federal Court.
Julie Mclean-Phillips was enormously excited for weeks before embarkation in the expectation of her 13-night Sun Princess cruise from Fremantle in December 2016.
Unbeknown to passengers, there had been an outbreak of norovirus on the vessel which took out passengers from day one and Julie and her sister Vivienne about seven days into their voyage.
Both were violently ill – as were many others – from vomiting and severe diarrhoea with little assistance offered by the crew.
Various public areas on the ship were closed off and sick passengers confined themselves to their staterooms, unable to enjoy the dining service or any of the glamorous shipboard activities they had anticipated.
A class action was filed in late 2022 against Carnival as operator of P&O Cruises Australia with McLean-Phillips as the lead plaintiff.
The claim alleges she acquired Carnival’s services for the purpose of enjoying a “relaxing and pleasurable cruise and experience” as promoted by its brochure and on its website and for the cruise to deliver that particular result.
It seeks “disappointment damages” because – due to a “deficiency in services” – neither that purpose was fulfilled, nor that result achieved.
McLean-Phillips alleged the presence of norovirus on the vessel – which was not notified to embarking passengers by Carnival – affected the cruise right from the start by the closure of some of the ship’s facilities.
Had she known of the “likely” outbreak, she would have abandoned the holiday and that by any measure she had a very unenjoyable cruise experience that had not been delivered according to the promoted standards and benefits.
Carnival promptly applied to the court to have the Statement of Claim struck out alleging it failed to allege a factual matrix in respect of any deficiency in the fitness or suitability of the services provided.
It contended the applicants were required to plead how it had failed to deliver on its promises, ie, particulars by which the services it provided were alleged to have been “deficient”.
“The absence of a pleaded link between the services and the outcome of the cruise is fatal to the claim,” it submitted to Justice Ian Jackman in the Federal Court of Australia in Sydney.
In the court’s view the word “reasonably” in Australian Consumer Law section 61 necessitated some comparison between what was provided and that which was promised, ie it required the “deficiency” to be identified. Likewise the language in section 267 “requires identification of some deficiency or shortcoming in the supply of the relevant service”.
“If that were not the case” – reasoned the judge – “a passenger who suffered acute seasickness and had a thoroughly miserable holiday, would probably have a valid claim for compensation on the ground that the cruise ship operator had promised that passenger a relaxing and enjoyable time”.
“Similarly, there may unexpectedly be heavy storms for the duration of a cruise on a ship,” he explained, “which may mean that the passengers do not experience a relaxing and enjoyable holiday”.
That the breach of a s 61 guarantee does not require proof of the absence of reasonable care, was not to the point, Justice Jackman observed.
He ordered that the Statement of Claim should be struck out in its entirety but the applicants be granted leave to file and serve an Amended Statement of Claim to identify the service deficiencies alleged and relate the passengers’ cruise disappointment to them.
McLean-Phillips v Carnival plc t/as P&O Cruises Australia [2023] FCA 328 Jackman J, 12 April 2023
Categories: Cruise ship injury