Passengers seeking damages after catching norovirus on Carnival cruise voyages have been sent back to the drawing board after their class action pleadings were tossed by the Federal Court.
On Wednesday, Justice Ian Jackman scrapped the pleadings, agreeing that they did not describe exactly how Carnival was liable to pay damages for those who experienced diarrhoea and vomiting while on board.
Julie McLean-Phillips, who represents all other eligible passengers in the lawsuit, embarked on a 13-night cruise on the Sun Princess which departed Fremantle, Western Australia on December 5, 2016.
Passengers who became ill with norovirus on seven other cruises, including four which departed from Fremantle and three from Brisbane, are eligible to join the class action.
Expecting a "relaxing and pleasurable cruise", Ms McLean-Phillips says she and her older sister Vivienne Trudgeon fell ill with norovirus within days and were confined to their room without access to onboard facilities such as the library, grand casino, hot tub and art gallery.
She is seeking a full refund of the $1600 paid for the cruise plus additional damages for losses including inconvenience, distress and disappointment.
In the Federal Court, Carnival successfully argued Ms McLean-Phillips had not actually outlined what services offered by the company were "deficient" which led to her suffering damage.
"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," Justice Jackman said.
"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."
Under Ms McLean-Phillip's logic, a passenger who suffered acute seasickness throughout a voyage would have a valid claim for compensation, the judge said.
"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.
Other class actions, including one brought against Carnival over the Ruby Princess COVID-19 outbreak, clearly linked the company's alleged failures with the compensation sought by those impacted, Justice Jackman said.
Ms McLean-Phillip and her legal team at Shine Lawyers have until May 12 to file their amended pleadings with the court.
The matter will next come before Justice Jackman on May 19.
