Keep Calm and Cruise On – When Disappointment and Distress May Result in an Award of Damages
October 29, 2026
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With the impacts of COVID-19 continuing to effect our everyday lives, Australia’s tourism industry has been forced to adapt more than most for the foreseeable future. This is particularly the case for those businesses that provide services aimed at entertainment, enjoyment and relaxation.
Damages for disappointment and distress
At law, a consumer may recover damages against a supplier for any loss or damage suffered by the consumer because of a failure to comply with consumer guarantees if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such failure.
Last year, the High Court handed down a judgment in Moore v Scenic Tours Pty Ltd [2020] HCA 17 which enabled individuals to successfully seek damages for ‘disappointment and distress’ arising from breaches of consumer guarantees.
Following this decision, there is an expectation that claims for disappointment and distress suffered as a result of disruptions to travel and tours caused by COVID-19 may dramatically rise.
Moore v Scenic Tours Pty Ltd
In 2012, Mr Moore booked a cruise through Europe for himself and his wife with Scenic Tours. Scenic Tours promoted the cruise as a luxurious, once in a lifetime cruise, which visited numerous destinations without passengers having to constantly unpack. Unfortunately, a major portion of the cruise (10 days out of the 14 days) were spent on a bus, with the passengers having to change ship twice due to unfavourable weather conditions and flooding. Needless to say, the cruise fell short of what was promoted by Scenic Tours.
As a result, Mr Moore, together with 1,500 other disgruntled passengers, sued Scenic Tours claiming damages arising from disappointment and distress. The claim against Scenic Tours comprised multiple breaches of the Australian Consumer Law, including that the tour supplied was not fit for purpose and was not of a nature and quality that passengers could reasonably expect.
Scenic Tours argued that the poor weather and flooding were out of its control and additionally that disappointment fell under a personal mental injury which meant that the Australian Consumer Law was not applicable.
The High Court determined that Mr Moore’s claim for disappointment and distress was not a type of personal injury damages and accordingly the Australian Consumer Law applied and Mr Moore was able to recover damages for the disappointment and distress he had suffered as a result of the failed tour.
Keep calm and cruise on
The Moore v Scenic Tours case demonstrates a tourism operator’s necessity to be well-versed in current legal principles regarding the Australian Consumer Law. By doing so, the operator will have a better chance at avoiding liability through any potential misleading and deceptive conduct.
Under the Australian Consumer Law, damages for losses suffered as a result of a failure to comply with the consumer guarantees are available if they are reasonably foreseeable. Such consumer guarantees include that the service be:
• provided with due care and skill;
• fit for any express or implied specified purpose; and
• provided within a reasonable time (when no time is set).
Although consumer guarantees cannot be contracted out of, suppliers of services should avoid making false statements and misrepresentations regarding the standard, value or quality of the service they are providing in advertising material.
Furthermore, operators should strive to ensure all clients are aware of potential conditions which may affect the service provided to avoid disappointment, such as ‘out of control’ events like unfavourable weather.
How we can help
In light of the recent High Court case and the constantly changing nature of COVID-19, tourism operators should be aware of the potential repercussions of failing to review and update their promotional material and terms and conditions.
At Bailiwick Legal, we can assist you by drafting or reviewing and updating your current terms and conditions as well as your contracts and promotional material.
If you would like further information in relation to how the above matters may affect you, please contact us on (08) 9321 5451 or by email danielle@bailiwicklegal.com.au.
Danielle Edwards (Associate)
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
For many growers, the biggest barrier to pursuing a claim is not the legal process itself. It is the relationship. In regional communities, suppliers, agronomists and growers often work together over many years, and many farmers are understandably reluctant to raise concerns if they believe it may damage a valued business relationship. Recent discussions regarding the performance of certain canola varieties have highlighted an important issue for farming businesses: protecting your legal rights does not necessarily mean taking an aggressive approach or ending a long-standing commercial relationship. Where concerns arise about the performance of a seed variety, chemical or other agricultural product, growers are often hesitant to make inquiries or seek compensation because the supplier may be a trusted local business or a person they have dealt with for decades. However, raising legitimate concerns and seeking advice should not be viewed as a personal attack. In many cases, suppliers will notify their insurer as soon as a significant claim is raised. From that point, discussions regarding liability and compensation are often managed by insurers, loss assessors and legal representatives. As a result, a grower may effectively be dealing with an insurance claim rather than a dispute directly with the supplier. That distinction is important. A claim can often be investigated and resolved without permanently damaging an otherwise productive business relationship. At the same time, growers should be aware that not every supplier is insured for every type of loss. Some businesses may not carry insurance that responds to large-scale agricultural claims, while others may not have sufficient coverage where multiple growers are affected. Early advice can therefore be critical in understanding both your legal position and the practical realities of recovery. If you are experiencing concerns regarding crop performance, keep detailed records, retain product packaging, batch information, invoices and correspondence, obtain independent agronomic advice, and seek legal advice before signing any settlement agreement, release or non-disclosure agreement (NDA). Protecting your rights does not have to mean burning bridges. Often, the best outcomes are achieved through early communication, careful investigation and practical resolution. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
One of the most common concerns we hear from growers experiencing issues with agricultural products is: "I don't want to sue someone I've known for years." In regional communities, business relationships matter. Suppliers, agronomists and growers often work together over many seasons, and many farmers are understandably reluctant to take action if they believe doing so may damage those relationships. However, pursuing a claim does not necessarily mean attacking a long-standing business relationship. In many cases, the supplier will notify its insurer of the claim and the matter will be managed by the insurer and its representatives. Where insurance is available, discussions regarding compensation often proceed through the insurer's claims process rather than as a personal dispute between grower and supplier. For that reason, growers should not assume that raising legitimate concerns about product performance will automatically result in the loss of an important commercial relationship. That said, every situation is different. Some suppliers may not carry insurance for particular losses, and others may not have sufficient insurance coverage to respond to multiple large-scale claims. In those circumstances, early advice can be particularly important, both to preserve evidence and to understand the practical options available. If you believe a seed variety, chemical or other agricultural product has not performed as represented, keep detailed records, obtain independent agronomic advice and seek legal advice before signing any settlement agreement, release or non-disclosure agreement. The earlier advice is obtained, the more options are generally available. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
Recent concerns regarding the performance of certain canola varieties have attracted significant attention across the Western Australian grain industry. The issue was recently discussed on the ABC WA Country Hour, where Philip Brunner, Director of Bailiwick Legal, commented on the legal issues that may arise when agricultural products fail to perform as expected. Farmers understand that crop performance can be affected by seasonal conditions, rainfall, frost, pests, disease and other factors beyond their control. However, different considerations may arise where a seed, chemical or agricultural product does not perform consistently with the representations made by the supplier at the time of sale. A well-publicised dispute involving John Snooke, a grower from Cunderdin, highlighted these issues when concerns were raised regarding the performance of a herbicide-tolerant canola variety. Following intervention by the WA Department of Consumer Protection, compensation was ultimately paid to affected growers. As input costs continue to increase, growers should be aware that legal protections may be available where a product: Does not match its description; Is not fit for its intended purpose; or Fails to perform in accordance with representations made by the supplier. If a crop is underperforming, growers should retain seed tags, invoices, marketing materials and paddock records, obtain independent agronomic advice and notify the supplier as soon as possible. Early evidence can be critical in assessing whether a legal claim may exist. Importantly, growers should not sign any settlement agreement, release or non-disclosure agreement (NDA) without first obtaining independent legal advice. These documents may limit future rights or prevent growers from discussing the issue with others who may be similarly affected. Author: Matilda Lloyd, Associate Director of Bailiwick Legal, assists farming families and agribusinesses throughout Western Australia with commercial disputes and risk management. For assistance with all of your agribusiness needs, contact Bailiwick Legal: West Perth Office on 08 9321 5451 or email office@bailiwicklegal.com.au Bridgetwoen Office on 08 6288 6240 or email bridgetown@bailiwicklegal.com.au For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
