New South Wales District Court CITATION: Stephanie Young v Insight Vacations Pty Limited [2009] NSWDC 122 HEARING DATE(S): 27/5/09 - 28/5/09 and 4/6/09 JUDGMENT DATE: 4 June 2009 JURISDICTION: Civil JUDGMENT OF: Rolfe DCJ DECISION: See paragraphs 90-92 of Judgment CATCHWORDS: Claim for damages by traveller arising out of breach of contract by travel company - Effect of implied warranty under s 74(1) of the Trade Practices Act, 1974 (Cth) - Exclusion of implied warranty if services rendered were recreational services - Application of S 5N of the Civil Liability Act 2002 (NSW) and consideration of definition of recreation services - Assessment of damages for non-economic loss and loss of disappointment caused by breach of contract to provide holiday. Civil Liability Act 2002 (NSW) LEGISLATION CITED: Trade Practices Act (1974) (Cth) Civil Procedure Act 2005 Baltic Shipping Company v Dillon (1992-1993) 176 CLR 344 CASES CITED: Jarvis v Swan Tours Limited (1973) QB 233 Jackson v Horizon Holidays Limited (1975) 1WLR 1468 Hadley v Baxendale (1854) 9Ex 354 TEXTS CITED: Dominic Villa, Annotated Civil Liability Act 2002 (NSW) PARTIES: Stephanie Young (Plaintiff) Insight Vacations Pty Limited (Defendant) FILE NUMBER(S): 5739/08 COUNSEL: F Austin (Plaintiff) D Talintyre (Defendant) JUDGMENT 1 The plaintiff in these proceedings, Stephanie Young, is aged 54 years. Mrs Young is a client service officer employed by the Australian Taxation Office. Mrs Young is a married woman with adult children and five grand-children. 2 In 2004 Mrs Young began planning what she described in evidence as "the trip of a life time" to Europe. In August of that year Mrs Young and her husband, Steven Young, attended a travel expo at Penrith. There they obtained travel brochures from a number of companies which offered vacations in Europe. One of the brochures was obtained from the defendant, Insight Vacations Pty Limited, trading as Insight Vacations. 3 In August 2004 Mrs Young and her husband met with his brother and sister-in-law in the Hunter Valley to discuss their planned trip overseas. The four of them perused the brochures and decided upon a tour offered to travellers by the defendant. This tour is described in the defendant's brochure (exhibit G) as the "Romantic European" 20 day tour. Mrs Young said this tour was chosen because it included Prague and Budapest. In addition, Mrs Young and her party were impressed with the leg room in the motor coaches promoted by the defendant in its brochure and the quality of hotels where they would be staying in the cities visited on the tour. 4 In November 2004 Mrs Young and her husband went to stay with his brother and sister-in-law in Burleigh Heads. They used the opportunity to go to the travel agent, Murph Nelson, at World Travel. Mrs Young said that Mr Nelson helped them plan their European vacation. Her evidence was that although her party would be travelling to other locations in the United Kingdom, Europe, The Mediterranean and South East Asia, they planned their trip around the defendant's "Romantic European" 20 day tour. 5 Mrs Young said that in February 2005 whilst again visiting her brother-in-law and sister-in-law, she went to see Mr Nelson of World Travel and finalised the arrangements for the trip. 6 Mrs Young said that she and her husband paid $22,160.70 for the whole of their trip, in respect of which, $9,406.20 was payable to the defendant for the "Romantic European" 20 day discovery tour (exhibit E). 7 Mrs Young and her party left Australia on 2 October 2005. They joined the defendant's tour in London on Sunday 9 October 2005 (exhibit D). 8 Mrs Young and her party travelled in one of the luxury coaches described on pp 14-15 of the defendant's brochure (exhibit G). Mrs Young said that at the beginning of the tour, the tour director introduced herself as "Ruth" and the bus driver was introduced as "Gee". 9 Mrs Young was clear and emphatic in her evidence that at the commencement of the tour neither the tour director nor the driver gave those on board any formal instructions. In particular, when the audio recording, which is exhibit 3, was played to Mrs Young in the witness box, she was quite clear and definite that this was not played to her or the other passengers on the coach either when they embarked in London or at any other stage of the 20 day tour. Mrs Young also said that when her sister-in-law asked the tour guide whether passengers could walk and move around the bus, the tour guide said that this was permissible except when the tour guide was talking to those onboard. 10 Mrs Young's evidence was the passengers frequently got up and walked around the coach and no one wore a seatbelt. 11 Mrs Young said that at about 7.45am on 14 October 2005 the coach left Prague to carry the passengers to Budapest. Whilst on route, the tour director handed out brochures for the passengers to fill in if they were interested in taking some sightseeing tours on arrival at Budapest. Mrs Young said when she received her brochure she was talking to her sister-in-law and two other ladies. On perusing the brochure she decided it would help to highlight certain aspects of it and so she stood up to get a highlighter out of the open overhead compartment where her hand luggage was stored. 12 Mrs Young said that at this point the coach had been travelling for about one and a half hours and was on a motorway in Slovakia. Mrs Young's impression was that the coach was travelling a lot faster than vehicles do on expressways in Australia. 13 Mrs Young said that as she got out of her seat to get up to retrieve the highlighter from her bag, she was put off balance as a result of the way the coach was being driven. She grabbed the seat to balance herself and just as she was reaching for the highlighter in her bag, the driver slammed on the brakes and Mrs Young was thrown backwards, hitting her head on the floor of the coach. 14 Fortuitously, there was a doctor on board the coach and he came to Mrs Young's aid. There was a lot of bleeding from her head and the doctor tried to stop the bleeding by using bandages from the coach's first aid locker. The doctor stayed with Mrs Young in a seat on the coach until arrival at Budapest where Mrs Young's wounds were treated at the local hospital (see exhibit F). Notwithstanding Mrs Young's predicament, the coach still stopped on this journey to enable the drive to have his lunch break! Meanwhile, Mrs Young was in a great deal of pain in the region of her head and neck. 15 Mrs Young said she was discharged from the hospital later that evening. Several days later Mrs Young went back to the hospital to get the doctor's permission to continue on with her tour. In the intervening period, Mrs Young stayed in the hotel in Budapest whilst her husband and relatives went sightseeing. 16 Mrs Young said that she had to decide whether or not to continue with the tour because she was in a lot of pain and discomfort. She decided to speak to her mentor, her aunt in Australia, and after doing so, she decided to grit her teeth and get on with the tour, so she did so. The tour continued and Mrs Young returned to London and disembarked from the coach on 28 October 2005. 17 Mrs Young said that after the accident and when the coach left Budapest on 17 October 2005 the tour director instructed everyone onboard to put their seatbelts on and not to stand up whilst the coach was in motion. All passengers complied with this request. 18 Mrs Young said that after the accident and for the rest of the time on the defendant's tour she found it very difficult because she had not been able to sleep. She was very nervous and had to sit next to the window to avoid the aisle. She said she was determined to get back on the coach because she felt that she would never be able to travel on one again if she did not do so there and then. She described her experience as "a trauma" and she was extremely upset about what happened because she had planned the holiday since 2002 down to its very last detail and was bitterly disappointed with the loss of enjoyment that she suffered. In this respect, Mrs Young said that for the duration of the tour she was plagued by constant headaches and neck pain. As soon as the tour arrived at a destination she had to lie down in her hotel room. Mrs Young courageously went on tours that had been arranged at various locations by the defendant but she did not do anything extra. When asked how much she enjoyed the remainder of the trip Mrs Young said that she barely remembered the details because of the trauma that had occurred. She said that up to 16 stitches were removed from her head wound in Switzerland on 26 October 2005. 19 Mrs Young's neck and head problems continued after she left the tour. She had headaches and lot of soreness on the left side of her neck and the top of her left shoulder. She was given Panadeine Forte or the equivalent thereof. 20 As Mrs Young had decided to remain on tour, she stayed in Europe until 11 November 2005, returning to Australia on or shortly after 14 November 2005, having stopped over in Singapore en route home (exhibit D). 21 During the time Mrs Young stayed in Europe she went on a cruise around the Mediterranean. She had difficulty during this time sleeping and was given some sleeping pills and some additional Panadeine Forte type medication. She was unable to consume any alcohol, it being her habit to have a pre-dinner drink and some wine with her meal whilst on vacation. In addition, shore tours were cancelled because it was too much for Mrs Young to walk around for lengthy periods of time. Her husband had to take all the photographs. 22 Mrs Young said that after her return to Australia she still had headaches and neck pain. She went to see her general practitioner and was given four days off work due to her problems. The GP prescribed Panadeine Forte and sent her for an x-ray (exhibit A). Mrs Young said she saw her GP about four times over the first eight week period after she returned home. 23 Mrs Young has remained in her job as a client services officer with the Australian Taxation Office since the accident and so there is no claim for economic loss. Although she is doing the same job, Mrs Young said that there are difficulties associated with it because of the problem with her neck. She hopes to be able to continue working for another 6 years or so. In this respect, Mrs Young's neck has been stiffer and more painful since the accident and she has had anti-inflammatories and acupuncture treatment for the problem. In addition, her employer has provided assistance through occupational health and safety assessments and a change in the setup of Mrs Young's workstation. 24 Mrs Young has had lower back problems for a number of years and it is not suggested they are connected with the accident on 14 October 2005. However, I accept Mrs Young's evidence that, since the accident, to the extent that there was some pre-existing neck pain, that the pain she has suffered in the neck region has got worse. I found Mrs Young to be a very straightforward, matter-of-fact witness. In my assessment, if anything, Mrs Young downplayed the problems she has experienced since the accident. I regard her as an honest and truthful witness. Mrs Young said that the neck pain is not constant but intermittent and variable. On average, Mrs Young said that she experiences neck pain a couple of times a month, particularly after she has done long shifts at work. Sometimes she has a rough couple of days and often has to lie down after she has had her dinner. The pain in her neck often affects her shoulder. 25 When asked about neck problems prior to this accident, Mrs Young said they were muscular in nature and she experienced them on the left and right hand side of her neck, whereas the pain that troubles her now is on the left hand side of her neck where she was injured in the accident. I accept her evidence that this pain gets a lot worse if she does things with her head down such as ironing, vacuuming, washing the floors and so on. Whilst cooking used to be a popular pastime for Mrs Young, she does a lot less of it now and has to be careful when playing with her grandchildren aged between two and nine years. For example, she can no longer piggyback the grandchildren. 26 Mr Young's evidence was that after the accident his wife was very teary and constantly apologising for spoiling the tour for him and his brother and sister-in-law. She complained of headaches and poor sleep. Mrs Young had to lie down a lot of the time and was unwell whilst they were travelling on the Mediterranean cruise. 27 Mr Young also said that since their return home he has had to do a lot of the household chores that Mrs Young previously did because she is in discomfort otherwise. 28 Mr Young also gave important evidence about the circumstances of the accident. Mr Young said that just before the accident occurred he was sitting in the back row of the coach talking to his brother and another passenger, Geoff. Mr Young observed that the coach was going pretty fast along the motorway and travelling at about 120 kms per hour. He then described a road rage incident in which the driver of the coach was involved. 29 Mr Young's evidence was that he observed a car travelling close behind the coach. Mr Young said that when the car tried to overtake the coach, the driver of the coach changed its direction to prevent the car from overtaking. Mr Young described the coach driver as being "irate". Mr Young said the next thing that happened was that the car driver was successful in overtaking the coach. In doing so, the car pulled over immediately in front of the coach causing the coach driver to brake very hard indeed. It was so hard that Mr Young had to put his hands out in front of him at the time. Mr Young observed other passengers hanging on to whatever they could grab hold of. Some of these passengers were standing up. The braking caused the coach to reduce speed in a matter of seconds from 120kph to about 60 kph. 30 I accept Mr Young as a truthful and honest witness. His evidence about the circumstances of the accident was not challenged. 31 As a result of the injuries sustained in the accident, Mrs Young has brought a claim against the defendant for damages in contract and in tort. 32 So far as the claim in contract is concerned, the proper law of the contract is the law of New South Wales. In that respect, both parties proceeded on the basis that the plaintiff's damages claim for personal injury was to be determined under the Civil Liability Act 2002 (NSW) (the "CL Act"). 33 The terms of the contract are contained in the defendant's brochure, exhibit G. Express terms are set out on page 133 under the heading "Booking Conditions & Other Important Information". Of particular importance are the clauses which appear under the heading "Responsibility", all or which are set out in the schedule to this judgment. 34 The "services and accommodations" described in the defendant's brochure, exhibit G, include, without being exhaustive, the provision of carriage and transportation on luxury coaches (described at p 15 of exhibit G as "Superior Transportation"), the provision of accommodation in quality hotels at desirable locations and the providing of an "abundance of dining experiences". It goes without saying that these services were to be provided to ensure the defendant's patrons experienced pleasure, relaxation, comfort, enjoyment and safety. In this respect, the contract contains an implied warranty that the services would be rendered by the defendant with due care and skill because of the operation of s 74 (1) of the Trade Practices Act (1974) (Cth) (the "TP Act") which provides: "In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied." 35 The plaintiff also relies on s 68 (1) (c) of the TP Act as follows: "(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict of modify or has the effect of excluding, restricting or modifying – (a) the application of all or any of the provisions of this Division; (b) the exercise of a right conferred by such a provision; (c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or (d) the application of section 75A is void." 36 There is a proviso to s 68 (1) which is set out in s 68 B so that a provision of a contract for the supply of services is not void under s 68 simply because it seeks to exclude the effect of the warranty under 74 in relation to the supply of "recreational services" under the contract. S 68B provides: "Limitation of liability in relation to supply of recreational services (1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying: (a) the application of section 74 to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or (c) any liability of the corporation for a breach of a warranty implied by section 74 in relation to the supply of the recreational services under the contract; so long as: (d) the exclusion, restriction or modification is limited to liability for death or personal injury; and (e) the contract was entered into after the commencement of this section." 37 The definition of "recreational services" under the TP Act is as follows: "recreational services means services that consist of participation in: (a) a sporting activity or a similar leisure-time pursuit; or (b) any other activity that: (i) involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure." 38 In response, the defendant says that it is entitled to rely on clause 4 under the heading "Responsibility" and says that it operates as a complete defence to the plaintiff's claim. The defendant accepts that, on its face, clause 4 would not operate if s 68 (1) (c) of the Act applied. However, the defendant submits that it is entitled to rely on s 74 (2A) as follows: "(2A) If: (a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; (b) the law of a State or Territory is the proper law of the contract; the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recover of a liability, for breach of another term of the contract." 39 The defendant says that s 74 (2A) of the TP Act applies here because of the operation of s 5N of the CL Act which itself provides: "(1) Despite any other written or unwritten law, a term os a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplies under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement." 40 As can be seen, the definition of "recreation services" set out in s 5N (4) of the CL Act is not co-extensive with the definition of "recreational services" under the TP Act. The latter definition is narrower because it does not include services that are incidental to a leisure time pursuit. Thus, there can be services of a recreational nature which still attract the warranty under s 74 of the Act, to which extent s 5N of CL Act will be inconsistent with the TP Act and therefore ineffective (Dominic Villa, Annotated Civil Liability Act 2002 (NSW) para 1A.5N.030). 41 In my opinion, when Mrs Young was injured on the motor coach on the motorway between Prague and Budapest in Slovakia, she was not engaging in "a sporting activity or a similar leisure time pursuit" as defined under the TP Act. Rather, Mrs Young was being transported or carried by the defendant between the two destinations. To the extent that it might be suggested that this was a service which was "incidental" to Mrs Young's pursuit of a "recreational activity", (such as travel and leisure) within the meaning of those words in s 5N of the CL Act, then in my opinion, s 5N is inconsistent with the TP Act. Therefore, the defendant cannot rely on s 5N to defeat the plaintiff's claim. This means the defendant cannot rely on clause 4 under "Responsibility". 42 For the same reason, the defendant cannot also rely on the second sentence of clause 3 under "Responsibility" (assuming a construction of that clause favourable to the defendant). 43 Under the implied statutory warranty, the defendant was obliged to render the services contracted for with the plaintiff with due care and skill. As already mentioned, the services included motor coach transportation of the plaintiff and other passengers on the defendant's "Romantic European" tour. To this end, counsel for the defendant submitted in his written outline dated 26 May 2009 that, in effect, there was no evidence of breach of the implied warranty (paragraphs 28 and 29). I reject the submission. Based on the evidence of Mr Young, I am satisfied that the driver of the coach drove the vehicle in an extremely dangerous manner by engaging in the incident with the driver of the car which overtook the motor coach. I am therefore satisfied that by driving in the dangerous manner, the motor coach driver caused the accident and the injuries sustained by the plaintiff. Since the driving of the motor coach driver was part of the transportation services rendered by the defendant to the plaintiff, it follows that the plaintiff has established a breach of the implied warranty and is therefore entitled to damages for breach of contract. 44 It is therefore unnecessary to consider the plaintiff's claim in tort. 45 For completeness I should add that I am satisfied that Mrs Young did not in any way cause or contribute to her injuries by standing up to retrieve the highlighter from her bag. The driver's manner of driving dangerously was not something she could have foreseen, nor was it an obvious risk. 46 I turn now to assess the plaintiff's claim for damages. 47 Subject to one aspect, the parties agreed that the plaintiff's claim for non-economic loss must be determined pursuant to s 16 of the CL Act. The defendant submitted that the severity of the plaintiff's loss was less than 15% of a most extreme case. The plaintiff submitted that the loss was within the range of 15% to 18% of a most extreme case. 48 To support its submission the defendant relied on the report of Dr Schutz dated 9 January 2009 (exhibit 1). Dr Schutz's opinion was that due to the accident on 14 October 2005 the plaintiff suffered a laceration to the scalp, headaches and neck discomfort. At the date he examined the plaintiff she had recovered from the lacerations to her scalp (this is not contested by the plaintiff). Dr Schutz also considered that the plaintiff had recovered from headaches and neck discomfort. However, this opinion is couched in ambiguous language on page 8 of exhibit 1 in the following way: "… the evidence is that this improved and indeed recovered in that she has a long periods (sic) of zero symptoms". 49 On the other hand the plaintiff relies on the report of Dr Habib (exhibit B). Although it is true that this was provided on 11 August 2006, I am satisfied that was at a point where Mrs Young's injuries and disabilities had stabilised to the same point where she is at today. In this respect, Dr Habib expressed the opinion that Mrs Young suffered a large laceration of the scalp and severe jarring injury of the neck aggravating the almost asymptomatic degenerative changes at C5/6. He prognosticated that although Mrs Young's neck injuries were stable, Mrs Young had ongoing pain, stiffness and some activity limitations which were likely to be permanent. In view of Mrs Young's evidence about the ongoing nature of these disabilities, which I totally accept, I prefer Dr Habib's opinion over that of Dr Schutz. 50 Accordingly, taking into account Dr Habib's opinion and the evidence that the plaintiff gave about her injuries and disabilities, I am satisfied that the plaintiff is well and truly over the threshold fixed by s 16 of CL Act and I assess her claim for damages for non-economic loss in terms of severity as 18% of a most extreme case. Therefore the plaintiff will be entitled to recover $11,500 as part of her damages. 51 The plaintiff also claims damages for "disappointment, distress and inconvenience" along the lines awarded to the plaintiff in Baltic Shipping Company v Dillon (1992-1993) 176 CLR 344. The plaintiff submits that such damages should be in the range of $10,000 to $15,000. The defendant submits that such damages are not recoverable as a separate head as they are covered by any award under s 16 of the CL Act. 52 In Baltic Shipping the High Court decided that where there is a contract the object of which is to provide enjoyment and relaxation, damages for disappointment and distress resulting from a breach are recoverable. Of course Baltic Shipping was decided before the CL Act commenced operation. In this respect, the definition of "non-economic loss" in the CL Act needs to be borne in mind. Section 3 of the CL Act defines non-economic loss as meaning any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement. 53 It seems to me that any distress suffered by the plaintiff is within the meaning of (a) pain and suffering. But disappointment is something different. As Mason CJ pointed out at 363 in Baltic Shipping, in earlier cases, plaintiffs had recovered damages for disappointment caused by the breach of a contract to provide a holiday, entertainment or enjoyment when the object of the contract was to provide pleasure or relaxation: Jarvis v Swan Tours Limited (1973) QB 233; Jackson v Horizon Holidays Limited (1975) 1WLR 1468. An award of this type is based on the rule in Hadley v Baxendale (1854) 9Ex 354 because the circumstances are such that the damages for the breach can fairly and reasonably be considered to arise naturally or may reasonably be supposed to have been in the contemplation of the parties. 54 I am satisfied that in the present case the plaintiff has suffered the disappointment of not being able to properly enjoy the remainder of her tour with the defendant after the accident. Effectively, the defendant's breach of contract ruined for the plaintiff the balance of the tour. Such a loss, in my opinion, flows naturally from the defendant's breach and is not "non-economic loss" as defined in s 3 of the CL Act. 55 However, I do not consider that the plaintiff is entitled to damages for disappointment after she disembarked from the defendant's tour because there is no evidence to demonstrate objectively that it was within the contemplation of the defendant that after such a tour finished the plaintiff would go on a cruise in the Mediterranean. 56 I award the plaintiff damages for disappointment resulting from the defendant's breach of contract in the amount of $8,000. 57 The plaintiff is entitled to interest on the award of $8,000 from 14 October 2005 to date in the exercise of the Court's discretion under s 100 of the Civil Procedure Act. Accordingly, I award the plaintiff $2,871 for interest on this component of her damages. 58 In the result there will be a Verdict and Judgment for the plaintiff against the defendant in the amount of $22,371. 59 Costs should follow the event but I will hear the parties if either wishes to contend otherwise. 60 I direct that the exhibits be returned. SCHEDULE RESPONSIBILITY Insight Vacations Pty Ltd, referred to as the Operators, undertake the following duties: (1) The Operators shall be responsible to the passenger for supplying the services and accommodations described in this brochure, except where such services cannot be supplied or the itinerary used is changed due to delays or other causes of whatever kind of nature beyond the control of the Operators. In such circumstances, the Operators will do their best to supply comparable services, accommodations and itineraries and there shall be no refund in this connection. (2) This brochure represents the entire agreement between the passenger and the Operators. (3) In the absence of their own negligence, neither the Operators nor their agents or co-operating organisations shall be responsible for any cancellations, delays, diversions of substitution of equipment or any act or omission whatsoever by air carriers, transportation companies, hotels or any other persons providing any of the services and accommodations to passengers including any results thereof, such as changes in services or accommodations necessitated by same. Nor shall they be liable for any loss or damage to baggage or property, or for injury, illness or death, or for any damages or claims whatsoever arising from loss, negligence or delay from the act, error, or negligence of any person not its direct employee or under its exclusive control. The operators are not responsible for any criminal conduct by third parties. (4) Where the passenger occupies a motorcoach seat fitted with a safety belt, neither the Operators nor their agents or co-operating organisations will be liable for any injury, illness or death or for any damages or claims whatsoever arising from any accident or incident, if the safety belt is not being worn at the time of such accident or incident. (5) Transportation companies, airlines etc are not to be held responsible for any act, omission or event during the time passengers are not on board planes, transportation or conveyances. The passenger contracts are in use by the airlines or transportation companies when used shall constitute the sole contract between the airline, transportation company and passenger or purchaser of this tour and the Operators assume no responsibility in this connection. Enrolment in and payment for a tour shall constitute agreement and acceptance by the passenger of the terms and conditions set forth in this brochure which cannot be varied except in writing by an officer of the Company. (6) All matters concerning this booking shall be subject to the Laws of the State of NSW and legal action arising under the Contract shall be litigated only in the appropriate Court having jurisdiction in that State, which Court both parties acknowledge to have exclusive jurisdiction in relation to any legal action brought hereunder. (7) Every effort is made to ensure brochure accuracy at the time of going to press, however Insight cannot be held responsible for printing or typographical errors, or errors arising from unforeseen circumstances. (8) All tours are operated by Insight Vacations Pty Ltd, 35 Grafton Street, Bondi Junction, NSW 2022. Any correspondence arising should be mailed to this address. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.