Carnival wins round one of a fight against a class action brought by cruise passengers

Carnival has had an initial claim for compensation by passengers of the Sun Princess struck out by the Federal Court.

The Sun Princess is at the centre of a class action brought by passengers who contracted norovirus during their cruise. Picture: Justin Kennedy

The Federal Court has struck out a claim against cruise ship company Carnival brought by passengers who contracted norovirus aboard the Sun Princess.

Julie McLean-Phillips brought the class action on behalf of other eligible passengers, after she fell ill during her 13-night southern Australia cruise in December 2016.

Instead of the “relaxing and pleasurable” cruise she was promised, Ms McLean-Phillips spent the last four days of the trip confined to her cabin when first her sister and then she contracted norovirus.

Considered a highly contagious illness, norovirus is characterised by bouts of uncontrollable diarrhoea and vomiting which can last several days.

The lawsuit brought against Carnival said Ms McLean-Phillips was unable to fully enjoy the facilities and activities on board the ship, including the hot tub, art gallery, casino and library.

By way of compensation, Ms McLean-Phillips sought a full refund of the $1609 cost of the cruise plus additional damages for inconvenience, distress and disappointment.

In its defence, Carnival sought to have the case struck out, arguing there was no allegation that anyone’s illness was connected with services provided by the cruise company.

Justice Ian Jackman agreed that “the mere fact the illness occurred during the cruise” did not establish that the illness was attributable to some deficiency in the services provided.

“It cannot be sufficient to say that the cruise ship operator promised a relaxing and enjoyable holiday, but the claimant has in fact had a miserable and stressful time,” ruled Justice Jackman.

“In my opinion, there would have to be some link between an identified deficiency in the services provided and the lack of relaxation and enjoyment which resulted from that.”

He noted key differences between the case, and a successful class action brought against Scenic Tours after travellers spent their European tour on buses rather than five-star cruise boats as promised due to flooding.

“The services (Scenic Tours) supplied to the claimant bore remarkably little resemblance to the itinerary set out in the brochure,” Justice Jackman noted.

“Scenic provided very little cruising but a great deal of lengthy and often uncomfortable coach travel and there was a gross disparity between the services supplied and the services that the passenger expected to receive.”

Justice Jackman said that under the “logic” of Ms McLean-Phillips’ argument, a passenger who had a miserable holiday due to acute seasickness would have a valid claim for compensation.

“That strikes me as a conclusion so surprising that it would require the clearest possible expression in the legislation for it to be accepted,” he wrote.

“Such a passenger would have to identify some specific deficiency in the services provided, such as medication that could have been provided to alleviate symptoms of seasickness but was not.”

As a result Justice Jackman upheld the strikeout motion brought by Carnival and set a date of May 12 for Ms McLean-Phillips and Shine Lawyers to file amended pleadings in the case.

A spokeswoman for Princess Cruises declined to comment due to the fact the proceedings were ongoing for parent company Carnival.

Originally published as Carnival wins round one of a fight against a class action brought by cruise passengers