This article was co-written by Associate, Narelle Galligan.
The words “Ruby Princess” still bring COVID-19 to mind for many Australians, but perhaps not more than for Susan Karpik. Mrs Karpik and her husband, Henry, were two of over 2,600 passengers who left Sydney on a 13-day cruise in March 2020 at the outset of the coronavirus pandemic entering Australia.
The Federal Court of Australia recently handed down its decision in Karpik v Carnival plc (The Ruby Princess) in which Mrs Karpik was the lead representative. Mrs Karpik’s main causes of action against Carnival plc (Carnival), the owners of the Ruby Princess, were under the Australian Consumer Law (ACL) which provides statutory standards for commercial conduct in Australia.
Mrs Karpik claimed that Carnival failed to comply with consumer guarantees under the ACL that:
- the services provided would be reasonably fit for the intended purpose (the purpose guarantee);
- the services would be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result (the result guarantee); and
- the services would be rendered with due skill and care (the care guarantee).
She also claimed that Carnival engaged in conduct in trade or commerce that was misleading or likely to mislead or deceive by representing that it was reasonably safe for passengers to embark on the cruise.
Mrs Karpik gave evidence that she expected that the services provided by Carnival would be reasonably fit for the purpose of providing a “safe, relaxing and pleasurable holiday” and that she would “come back new”.
Instead, her husband contracted COVID-19 on board, was placed into isolation, ultimately placed into a medically induced coma, nearly died, and spent almost two months in hospital. Mrs Karpik also contracted COVID-19 and was put into isolation on return to Sydney. As a result, she was unable to be by her husband’s side while he was in intensive care. She was also told that his condition had deteriorated so much that he would not survive, that she must nominate someone to say goodbye on behalf of the family, and was asked to give a “not for resuscitation” order.
Mrs Karpik sought damages for personal injuries, distress and disappointment and claimed that the impact on her mental health was significant.
Justice Stewart, unsurprisingly, found that Mrs Karpik did not have a safe, relaxing, or pleasurable cruise. His Honour also found that the services were not reasonably fit to achieve that purpose and not of such a nature and quality that they might reasonably have been expected to achieve that result. It was doubtful that it was even possible to offer cruising services at that time given the risk of COVID-19.
However, despite Mrs Karpik establishing causation and loss under each of her claims, she was only awarded $4,423.48 plus interest for her out of pocket medical expenses and a refund of $4,400. This was due to a complex issue in relation to the application of the Civil Liability Act 2002 (NSW) which limited Mrs Karpik’s consumer guarantee claims under the ACL.
While it’s arguably a small amount of damages, it is still a win for Mrs Karpik as a consumer.
The Ruby Princess case is a timely reminder of consumers’ statutory rights under the ACL as well as the obligations of suppliers and manufacturers of goods and suppliers of services. If you consider that a supplier or manufacturer has breached consumer guarantees under the ACL, there may be remedies available to you. If you are a supplier or manufacturer, it is important that you understand your obligations under the ACL.
We can advise you on your rights and obligations under the ACL, as well as unfair contract terms.