Scenic Tours Class Action 2013

The class action

Somerville Legal pursued 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. After 10 years of relentless court battles, scenic finally settled the case for approximately $26 million Click here for the back ground of the claim.

The first judgments – NSW Supreme Court – liability

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 second judgment – NSW Supreme Court – damages

Justice Garling delivered judgment on 14 April 2022 as to the calculation of damages based on hearing evidence from a sample of about 30 passengers. Click here for the judgment. This enabled the calculation of the damages for those sample passengers, and calculation of refunds of amounts paid by passengers to Scenic, totalling about $11.3 million. The court also ordered Scenic to pay our costs. Click here for details.

The amount for damages for distress and inconvenience is still to be determined, and is expected to be a similarly large figure.

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;

2. 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;

3. 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 disappointment, on top of a claim for refund of the fares they paid and a refund of wasted airfares.

The matter was then sent back to the NSW Supreme Court for the Judge to decide how much each passenger should receive. The Supreme Court heard evidence from 32 passengers during March 2021. On 14 April 2022, the Court delivered its judgment, as a result of which orders were made on 24 June 2022.

This has resulted in the Supreme Court entering judgment against Scenic for around $11.3 million primarily representing damages for reduction in value. Click here for further details.

The claims for distress and disappointment will not be determined until after the result of the the third appeal.

The third appeal – NSW Court of Appeal

Scenic lodged yet another appeal, which was heard in October 2022. Again, Scenic lost, following which there were negotiations leading to a settlement.

Click here for details of the Court of Appeal first judgment.

Click here for the High Court judgment.

Click here for the Supreme Court judgment for damages of 24 June 2022.

Click here for the Court of Appeal 2nd judgment