Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280

FEDERAL COURT OF AUSTRALIA

Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280 File number: NSD 806 of 2020

Judgment of: STEWART J

Date of judgment: 25 October 2023

Catchwords: REPRESENTATIVE PROCEEDINGS – where lead applicant claims that she and her husband were infected with coronavirus on board the cruise ship Ruby Princess – where claims made pursuant to the Australian Consumer Law (ACL) and in negligence – trial of lead applicant's claims – common questions HIGH COURT AND FEDERAL COURT – federal jurisdiction – application of ss 5H, 5I, 5R, 16 and 32(1) of the Civil Liability Act 2002 (NSW) (CLA) and s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to consumer guarantee claims under the ACL – whether picked up and applied as surrogate federal law by ACL s 275 – if picked up whether applicable on the facts of the case CONSUMER LAW – claims for failure to comply with the care guarantee in ACL s 60 and the purpose and result guarantees in ACL ss 61(1) and 61(2) – identification of the relevant services – terms on which the services were to be provided – particular purpose and result wished to be achieved – meaning of "particular" purpose – whether particular purpose made known – where particular purpose was to have a safe, relaxing and pleasurable cruise holiday – whether services reasonably fit for purpose – whether the services were of such a nature and quality, state or condition that they were reasonably likely to achieve desired result – where applicant did not have a safe, relaxing and pleasurable cruise holiday NEGLIGENCE – whether the respondents (being the owner and charterer of the vessel) owed the applicant a duty of care – where applicant a passenger on a cruise ship – whether duty is novel or falls within recognised category – whether scope of duty extends to the harm allegedly suffered – nature of relationship between passengers and cruise ship operators – reliance of passengers on cruise ship operators for their safety – respondents' peculiar knowledge of risk of coronavirus outbreak on their cruise ship – whether respondents owed applicant a duty of care as a close family member in respect of mental harm caused by passengers suffering and near death experience SHIPPING AND NAVIGATION – whether owner and operators of passenger vessel owe passengers a duty of care to take reasonable precautions to protect and safeguard them from infectious disease – scope of duty – whether duty breached – negligence NEGLIGENCE – breach of duty – identification of relevant risk of harm – whether reasonable person in the position of the respondents would have taken the precautions identified by the applicant – consideration of factors in ss 5B and 5C of the CLA – whether respondents should have cancelled the cruise – relevance of industry guidelines, lack of governmental action restraining operation of cruise industry and extent of respondents' knowledge at time of departure of cruise – where no evidence adduced of the burden of taking precautions – whether respondents should have warned the applicant about the risk of coronavirus – whether risk was "obvious" within meaning of CLA s 5H – whether respondents' screening of passengers and crew prior to embarkation was reasonably appropriate in the circumstances – whether respondents should have introduced physical distancing CONSUMER LAW – misleading and deceptive conduct under ACL s 18(1) – whether conduct misleading or deceptive or likely to mislead or deceive – identification of relevant conduct and what representations were conveyed – whether representations were future representations – where representations concerned future conduct (or present and future conduct) relative to the time when the representations were made – where representations gave rise to a reasonable expectation that the respondents would disclose if they were no longer able to provide the services as promised – continuing representations NEGLIGENCE – causation – application of CLA s 5D – factual causation – whether failure to appropriately screen passengers and crew and failure to implement physical distancing were causative of the applicant's loss in the event that the respondents were not in breach by failing to cancel the cruise and failing to warn – whether respondents' negligence caused harm or only increased the risk of harm NEGLIGENCE – contributory negligence – whether the applicant failed to take reasonable care for her own safety by going on the cruise, failing to practice physical distancing and failing to wear a face mask DAMAGES – where non-economic loss, past and future medical expenses and distress and disappointment damages claimed – where personal injuries allegedly suffered were COVID-19 infection, Long COVID and psychiatric illness – whether severity of non-economic loss is at least 15% of a most extreme case – availability and assessment of distress and disappointment damages – where applicant received a full refund of cost of cruise – out of pocket expenses EVIDENCE – expert evidence – whether opinion as to Long COVID infection based on the witness's specialised knowledge