KARPIK V CARNIVAL PLC (THE "RUBY PRINCESS")

[2023] FCA 1280, Federal Court of Australia, Stewart J, 25 October 2023

Liability – Cruise ship passengers – Lead claimant in representative proceedings – Claim that lead claimant and her husband were infected with coronavirus on board cruise ship Ruby Princess – Claims under Australian consumer law and in negligence – Duties of owner and operators of passenger vessel – Question of duty of care to take reasonable precautions to protect and safeguard passengers from infectious disease – Competition and Consumer Act 2010 (Cth) – Civil Liability Act 2002 (NSW) – Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974

Mrs K was the lead claimant in a group claim in respect of a cruise onboard the vessel Ruby Princess.

The claims followed a cruise beginning on 8 March 2020 from Sydney with 2,671 passengers, which was abandoned three days early on 15 March 2020 following a Covid-19 outbreak on board. The group consisted of passengers and their executors and representatives.

The first respondent, Carnival, was a UK cruise operator and a registered foreign company with a registered office in New South Wales, and the time charterer of Ruby Princess. The second respondent was a Bermuda company and the registered owner of Ruby Princess. Mrs K's husband Mr K had become seriously ill in the course of the voyage and had been hospitalised upon their return home. Mrs K sought damages for personal injury, distress and disappointment.

The judge held as follows.

(1) The respondents knew or ought to have known that there was a substantial risk of Covid-19 on the previous cruise of Ruby Princess, from which the ship had returned on the day of departure of this cruise, and that there was a heightened risk of the virus being on this cruise compared with cruise ships generally.

(2) Cruise ships were peculiarly susceptible to coronavirus infection and transmission and compared very poorly with the community generally in that regard. The respondents knew that and their contentions to the contrary would be rejected.

(3) Interpreting the medical evidence, it was more likely than not that Mr K had been infected with coronavirus on board the vessel. It was also more likely than not that Mrs K had contracted coronavirus on board.

(4) Mrs K had not had a safe, relaxing and pleasurable cruise holiday. The respondents had failed to comply with the "purpose" and "result" guarantees in Australian consumer law.

(5) The respondents owed Mrs K a duty to take reasonable care for her health and safety, including with regard to the risk of harm caused by coronavirus infection. It would be incorrect to characterise the duty as one requiring the respondents to prevent the spread of contagious disease; or to in terms of the protection of patrons from one another. The relationship between a ship's operator – being the party in possession or having the management and control of the ship – and its passengers was a special relationship like that of passengers on an aircraft. Passengers on a cruise ship were equally "captive", but for a longer period of time. Their reliance on the respondents for their safety could not be negated merely because the passengers voluntarily decided to board the vessel. As compared to the ordinary passenger, the respondents had peculiar knowledge of the coronavirus. The respondents owed Mrs K a duty to take reasonable care for her health and safety, including with regard to the risk of harm caused by coronavirus infection.

(6) The respondents' floodgates argument would be rejected where such a duty was not novel or burdensome but was imposed in many countries by the Athens Convention 1974 or 2002 or by domestic law without imposing intolerable burden on cruise lines. The focus of any claim was on the conduct of the cruise line and whether it was negligent, and that was where the focus of attention should be in the present case.

(7) A person of normal fortitude might suffer a recognised psychiatric illness if exposed to the circumstances of the present case. The duty of care was therefore not excluded by the Civil Liability Act 2002, section 32(1). The respondents owed Mrs K a duty of care with respect to a recognised psychiatric illness arising from Mr K contracting Covid-19 on the voyage.

(8) The respondents had breached their duty of care in a number of respects, namely by failing to cancel the cruise; warn passengers about the heightened risk of contracting Covid-19 on board Ruby Princess as compared with other cruise ships (by reason of the outbreak of acute respiratory illness on the previous voyage and the insufficient quantity of face masks available for use on board; provide temperature screening of passengers and crew prior to boarding; ask all passengers and crew whether they were experiencing symptoms consistent with Covid-19 and deny boarding to those who answered yes; encourage passengers and crew to physically distance on board the vessel; limit numbers of people within all parts of the ship so as to allow for physical distancing and closing such parts which could not permit it; isolate all passengers and crew who presented with acute respiratory illness until 24 hours after their symptoms subsided; from 11 March 2020, isolate passengers and crew who had travelled from or through designated countries and who presented with relevant symptoms; and provide roommates of isolated passengers with face masks, alcohol hand rub and information on how they could protect themselves from disease.

(9) The respondents had made misleading representations that it was reasonably safe for the passengers to embark on the cruise; that the respondents would take reasonable care for the safety of passengers during the cruise; that the respondents had implemented, and would continue to implement, increased monitoring, screening and sanitation protocols to protect the health of passengers which measures were designed to be flexible to adapt to changing conditions and recommended best practice; and that the respondents would supply the promised cruising services as set out in their advertising brochures and passenger contracts and in doing so would do all things reasonably within their ability to enable the passengers to have a safe, relaxing and pleasurable cruise.

(10) The representations that were as to future matters, unless resiled from or corrected, were continuing up until the time of the relevant future event or circumstance, being the cruise. There was a reasonable expectation that the respondents would disclose if they were no longer able to provide the services or protect the safety of the passengers as originally promised.

(11) Mrs K had established causation in accordance with the Civil Liability Act, section 5D not only on the cancellation case but also on the failure to warn and the failure to implement precautions cases.