Stephanie Young v Insight Vacations Pty Limited [2009] NSWDC 122

Stephanie Young v Insight Vacations Pty Limited [2009] NSWDC 122

The plaintiff was being transported between Prague and Budapest and was not participating in recreational services within the narrower meaning of the Trade Practices Act (1974) (Cth); to the extent s 5N of the Civil Liability Act 2002 (NSW) would treat the transport as incidental recreation services, it was...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Civil Claim for Damages in Contract and Tort Arising From Injuries During a Travel Tour / Final Judgment After Hearing
Outcome
Verdict and judgment for the plaintiff against the defendant in the amount of $22,371.
Legal Topics
['implied Warranty of Due Care and Skill' 'recreational Services Exclusion' 'exclusion Clauses' 'non Economic Loss' 'damages for Disappointment and Distress']
['contract Law' 'consumer Protection' 'personal Injury' 'civil Liability'] ['implied Warranty of Due Care and Skill' 'recreational Services Exclusion' 'exclusion Clauses' 'non Economic Loss' 'damages for Disappointment and Distress']

Source-derived case record

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Procedural Posture

Civil Claim for Damages in Contract and Tort Arising From Injuries During a Travel Tour / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant breached the implied warranty under s 74(1) of the Trade Practices Act (1974) (Cth) by failing to render tour transportation services with due care and skill.' 'Whether the defendant could rely on exclusion clauses in its brochure through s 5N of the Civil Liability Act 2002 (NSW) or provisions concerning recreational services.' 'Whether the plaintiff was entitled to damages for non-economic loss and for disappointment caused by breach of a holiday contract.']

Ratio Decidendi

The plaintiff was being transported between Prague and Budapest and was not participating in recreational services within the narrower meaning of the Trade Practices Act (1974) (Cth); to the extent s 5N of the Civil Liability Act 2002 (NSW) would treat the transport as incidental recreation services, it was inconsistent with the Trade Practices Act and could not permit reliance on the exclusion clause. The coach driver drove in an extremely dangerous manner, causing the accident and injuries, so the defendant breached the implied warranty to render services with due care and skill. The plaintiff was entitled to damages for non-economic loss and to separate damages for disappointment...

Court Disposition

Verdict and judgment for the plaintiff against the defendant in the amount of $22,371.

Orders

  • ['Verdict and Judgment for the plaintiff against the defendant in the amount of $22,371.' 'Costs should follow the event, with the parties to be heard if either wishes to contend otherwise.' 'The exhibits are to be returned.']