River cruise line Scenic has lost its appeal in the NSW Court of Appeal over compensation for 1,000 passengers affected by flooded rivers in Europe in 2013 – and now faces possible additional litigation over how it treated passengers during last year’s drought.
According to Somerville Legal, solicitors acting for former passengers, the lead plaintiff in the 2013 case has now been given dispensation to argue he and other guests should be entitled to additional damages for “distress and disappointment”.
And in separate proceedings, Scenic has been ordered to hand over documents relating to 47 cruises run in 2018 after Associate Justice Harrison found passengers “may be entitled to claim for relief” over how they were treated and compensated when cruises were disrupted by the drought.
The High Court dismissed Scenic’s application for special leave to appeal from a 2018 decision in the NSW Court of Appeal. According to Somerville, the judge ruled that Scenic “breached their obligations under the Australian Consumer Law” to passengers aboard 14 cruises.
The lead plaintiff in that case, Mr David Moore, has been granted special leave which will give him and other passengers the chance to argue for the additional damages.
But two more passenger aboard 2018 cruises have also commenced proceedings in the Supreme Court of NSW seeking preliminary discovery from Scenic, to determine whether a class action will be viable.
The lawyers will be arguing that, “despite their experiences with the 2013 cruises, Scenic again did not cancel tours and refund money to passengers”.
Said a statement from the lawyers: “We will allege that this resulted in Scenic providing sub-standard tours to passengers.”
The lawyers continued: “The plaintiffs seek documents related to luxury European river cruise holidays provided by the defendant to Australia and non-Australian resident passengers.
According to the court documents: “Each of the plaintiffs paid a significant sum of money for holiday tours for themselves and their partners. They say that theirs, along with those of another 12 known cruises and potentially many more of the over 300 operated by the defendant in 2018, were disrupted by severe drought condition in Europe that year.”
Some of the issues that passengers had during their 2018 river cruises included long bus tours, vessel transfers as well as some passengers having to pay for rebooking of flights.
And some had paid up to $50,000 for their dream holidays.
One case in the court documents state, “The cruise, scheduled to commence on November 21, 2019 instead commenced as a bus tour for four days. On recommencement of cruising on November 25, 2018, the ship docked in port for two days. Further changes were made to the tour itinerary, with part of the cruise substituted with a ferry ride and the last two days were substituted with a bus tour.
“The total suspension was eight out of 14 or 57 per cent of the total cruise. The couple interviewed received a $2,100 insurance payout of about seven per cent of their $29,996 spent.”
Mr Moore and the other passengers on the 14 cruises in 2013 were affected by heavy rain in France and Germany.
It led to massive flooding on the Rhine, Saone, Rhone and Danube rivers which resulted in passengers spending hours on “substandard coaches, including one without a working toilet and air-conditioning”.
Mr Moore and his wife Janette Howell told Fairfax Media at the time they had spent their entire savings – $26,000 – on what they expected to be a river cruise through the French and German countryside.
Somerville Legal director Ben Hemsworth said some of the elderly travellers involved in the 2013 case had now died as the legal process had been lengthy.
The new decision meant Mr Moore and other claimants would need to get a travel industry specialist to try and value the holidays they actually received, including the lack of cruising days and coach travel, on the open market to assess compensation.
“We believe they would be worth nothing,” he said.
He added the compensation so far given to those involved in the 2018 cases had mainly come from Scenic insurance.
Cruise Passenger contacted Scenic for comment, but the company declined saying the legal case was continuing.