Can I Sue For Disappointment?

cruise, holiday

In 2020 the law relating to compensation for disappointment changed significantly. This change came from the High Court’s landmark decision in Moore v Scenic Tours, explained below. The High Court decision reflects the fact that you can sue for disappointment in relation to personal injury claims and breaches of contract/consumer guarantees.

What is Disappointment?

Even in the legal context, being disappointed is given its plain English meaning. Therefore, it describes feelings of failed or disappointing expectations. At law, for there to be disappointment there must be some failed promise or failed guarantee by one party. Usually, this arises in the context of holidays, travel or any business that promises relaxation, enjoyment or entertainment. Therefore, if a business fails to deliver on its promise to provide relaxation, enjoyment or entertainment, a claim to sue for disappointment may arise.

Disappointment and the Moore v Scenic Tours case:

The High Court in Moore v Scenic Tours recognised that compensation for disappointment is recoverable for breaches of contract and consumer guarantee. This is especially so for businesses and services that provide relaxation, enjoyment or entertainment to their customers.

Before Moore v Scenic Tours, the court only recognised compensation for disappointment if some personal injury, either physical or mental, was present. The threshold was very high. However, this is no longer the case.

Therefore, Moore v Scenic Tours has made compensation for disappointment more widely available than ever before as proof of personal injury is no longer required. However, there must be some breach of contract or breach of consumer guarantee present.

What happened in Moore v Scenic Tours?

Mr Moore and his wife booked a European river cruise holiday with a business called Scenic Tours. Scenic Tours stated that the cruise would be a once in a lifetime cruise along the grant waterways of Europe.

However, buses replaced the cruise ship for majority of the holiday due to adverse weather. Therefore, Scenic Tours had not delivered on its guarantee of a “once in a lifetime cruise” holiday.

Mr Moore and 1500 other passengers brought a class action against Scenic Tours for it breach of guarantee under Australia Consumer Law. Mr Moore and his wife claimed compensation for disappointment. They argued that Scenic Tours failed to provide the enjoyment, relaxation and pleasure it promised its customers. Scenic Tours tried to dispute Mr Moore’s compensation claim on technical legal grounds by stating that Mr Moore did not meet the personal injury threshold.

Importantly, the High Court stated that the disappointment suffered by Mr Moore was not caused by any personal injury. Rather, breach of contract or guarantee was the cause of Mr Moore’s compensation claim. The High Court decided that Mr Moore could claim compensation for his disappointment. Importantly, this meant that the High Court had expanded the categories available to sue for disappointment.

Businesses providing ‘relaxation, enjoyment or entertainment‘?

The implication of the Court decision in Moore v Scenic Tours is that all businesses that provide relaxation, enjoyment or entertainment must be careful about what they promise their customers. Businesses that provide relaxation, enjoyment or entertainment may include:

  • Travel agents,
  • Hotels,
  • Cruise ship operators,
  • Airlines,
  • Events and wedding planners,
  • Personal wellness operators or,
  • Any other business or service offering travel and recreational activities.

Importantly, businesses cannot contract out of this liability. Also, considering the impact Covid-19 has had on many holiday and travel plans, there may be an increase in compensation claims for disappointment.

Calculating damages for disappointment:

Damages are to be calculated according to the rules surrounding breach of contract. The judge in Moore v Scenic Tours found that an award of $2,000 for Mr Moore’s disappointment was ‘modest’. Therefore, a judge may award a higher amount. However, this all depends on the circumstances. Accordingly, compensation for disappointment will be calculated based on:

  • Cost of the holiday or fare,
  • The reasonableness of the compensation for the disappointment suffered,
  • The subjective disappointment suffered.

Key Takeaways:

You can sue to recieve compensation for disappointment. Accordingly, the High Court found that any breach of contract or consumer guarantee could give rise to a claim for disappointment. Therefore, personal injury is no longer the only way to claim disappointment. Thus, businesses who provide services such as ‘relaxation, enjoyment or entertainment’ are now at a higher risk of customers suing for disappointment if something goes wrong.

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