The class action

Somerville Legal have been pursuing a class action against Scenic Tours in respect of 13 European cruises in 2013. The cruises were affected by flooding, turning them into bus holidays, rather than the advertised luxury river cruises. The class action was launched when Scenic denied liability and refuse to provide any adequate compensation. Click here for the background of the claim.

The judgment - NSW Supreme Court

Mr Justice Garling delivered judgment on 31 August 2017. Click here for the Judgment. On 13 November 2017, His Honour gave a further judgment, setting out detailed findings as to Scenic’s breaches of its duties to its passengers. Click here for a copy of that judgment.

Click here for Channel 10 news report.

The first appeal - NSW Court of Appeal

Following the judgment, Scenic appealed to the Court of Appeal of the New South Wales Supreme Court. Judgment in that appeal was delivered on 25 October 2018.

In summary, the Court concluded:

  1. The ‘services’ which Scenic were to provide to passengers, were luxury river cruises, not simply any mode of transportation from point A to point B;
  1. Scenic breached at least one or more of the consumer guarantees under the Australian Consumer Law, in relation to cruises 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11;
  1. Passengers are entitled to damages for paying for a holiday that they did not get but are not entitled to additional damages for distress and disappointment.

The second appeal - High Court of Australia

Following the judgment of the Court of Appeal, both we and Scenic appealed to the High Court.

The first step was to ask for permission to appeal, where the High Court decides whether the appeal should go forward. The High Court ruled in our favour on our appeal but ruled against Scenic on their appeal. It means this was the end of the road for Scenic in appealing the judge's decision.

We argued the case before the High Court in February 2020, claiming that the passengers are entitled to damages on top of a refund of their fares. 

The High Court found in our favour. It was a decision of 7 judges for us and nil against. the Court decided that passengers are entitled to damages for distress and inconvenience, on top of a claim for refund of the fares they paid.

The matter has now been sent back to the NSW Supreme Court for the judge to decide how much each passenger should receive. We are currently preparing the evidence to present to the court. It is likely that this will be determined in the next few months.

Click here for details of the Court of Appeal judgment.

Click here for the High Court judgment.

Click here to claim compensation and damages

Public Notice - Click here for important information if you reside outside Australia.


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