The court found they made misleading representations that it was safe to embark on the 2020 cruise
In a recent judgment, the Federal Court ruled that the charterer and owner of the Ruby Princess cruise ship are liable for the COVID-19 outbreak on board the vessel in 2020.
Henry and Susan Karpik, residents of Figtree, NSW, have been married for 50 years. Susan is a retired nurse, while Henry used to serve as a police officer. The couple have a long history of taking holidays together on cruise ships.
On March 8, 2020, the Karpiks boarded the cruise ship Ruby Princess and departed from Sydney for a 13-day cruise to several ports in New Zealand and back to Sydney. The vessel had on board 2,671 passengers and 1,146 crew members. At that time, Australia braced for the novel coronavirus pandemic, disrupting lives and bringing illness and death in many parts of the world.
While on board, Henry fell ill with COVID-19. The parties disputed whether he contracted the disease before boarding the vessel. However, the court found that he was most likely infected on board during the crowded safety muster shortly after boarding.
Henry became ill and was intubated, ventilated, and in a coma. While Susan also contracted COVID-19, her symptoms were relatively minor. However, the court acknowledged that she endured witnessing the suffering of her husband and the fear that he would die without being able to be by his bedside because she was likewise in isolation after the voyage. As a result, she suffered an adjustment disorder with mixed anxiety and depressed mood.
Immediately before the Karpiks' voyage, Ruby Princess undertook a similar journey from Sydney to New Zealand and back to Sydney, which ended early on 8 March 2020. There had been an outbreak of acute respiratory infection and influenza-like illness on board that cruise. The court noted the relevance of this preceding voyage because of the possibility that such an outbreak included coronavirus, which consequently heightened the risk of the virus being carried over to the Karpiks' voyage.
After her harrowing experience, Susan Karpik commenced a class action lawsuit against Carnival plc, the time charterer of the Ruby Princess, and Princess Cruise Lines Ltd., the ship's owner. Susan sought damages for personal injuries, distress and disappointment of more than $360,000.
Susan advanced alternative and overlapping causes of action or claims. She argued that the respondents failed to comply with their guarantees under the Australian Consumer Law. The court found that the respondents guaranteed that the cruise services would be reasonably fit to have a safe, relaxing, and pleasurable cruise holiday substantially per the advertised and booked itinerary. The court also found that the respondents guaranteed that the services would be of such a nature and quality that they might reasonably be expected to achieve that desired result.
However, the Karpiks did not have a safe, relaxing, pleasurable cruise holiday. The court found that the services were not reasonably fit to achieve that purpose, and they were not of such a nature and quality that they might reasonably have been expected to achieve that result.
Susan also argued that the respondents had committed the tort of negligence and failed to comply with their guarantee under the consumer law that the services supplied to them would be rendered with due care and skills.
The court found that the respondents owed Susan Karpik a duty to take reasonable care for her health and safety, including concerning the risk of harm caused by COVID-19 infection, and that they also owed her a duty of care concerning a recognised psychiatric illness arising from a close family member contracting COVID-19 on the voyage.
The court said that before the embarkation of passengers on the Ruby Princess for the cruise in question, the respondents knew or ought to have known about the heightened risk of coronavirus infection on the vessel and its potentially lethal consequences and that their procedures for screening passengers and crew members for the virus were unlikely to screen-out all infectious individuals. Moreover, the court also pointed out that the respondents had experience and knowledge of coronavirus outbreaks on their other vessels, such as the Diamond Princess in Japan and the Grand Princess in California.
The court also ruled that the cancellation of the cruise would not have been so burdensome that a reasonable person in the respondents' position would not have cancelled the cruise. The court noted that the respondents were apparently prepared to cancel the cruise if one of only nine PCR tests from the immediately preceding cruise had returned a positive result, suggesting that cancelling the cruise would not have been unduly burdensome.
Furthermore, the court said that the respondents should have warned passengers of the heightened risk of the virus being on board the Ruby Princess compared to cruise ships. The court also said that the respondents should have implemented better pre-embarkation screening, including temperature screening, implemented a system of physical distancing on board, and isolated ill passengers.
The court found that the respondents made misleading representations that it was reasonably safe for passengers to embark on the cruise, that the respondents would take reasonable care for the safety of the passengers during the voyage, that they would implement increased monitoring, screening, and sanitation protocols to protect the health of passengers, and that they would do all things reasonably within their ability to enable the passengers to have a safe, relaxing, and pleasurable cruise.
Ultimately, the court was satisfied that causation and loss had been established on each of Susan's claims. However, the court found Karpik's COVID-19 infection gave rise to very mild symptoms, her adjustment disorder was of moderate severity and relatively short duration, and she did not suffer from "long" COVID-19. The court assessed her non-economic loss for personal injuries as 8% of a most extreme case, below the 15% threshold to recover damages for personal injuries. Nonetheless, the court awarded her for out-of-pocket medical expenses.
The court directed the matter for further case management to hear the parties and make final decisions on the issue of common questions in the class action.
