About 600 passengers contracted COVID-19, and 28 others died.

Susan Karpik, who brought the action as lead plaintiff, was found to be entitled for damages related to distress and disappointment, but at no more than the $4,400 refund already provided. Karpik has also launched an appeal of Justice Stewart’s findings.

On the first of at least three hearing dates before the Federal Court’s full bench, counsel for the cruise line, James Hutton SC, said Carnival disputed a finding of negligence, misleading or deceptive conduct, and said there were issues at law for consumer guarantees.

The crux of his submissions was that COVID-19 was a developing issue at that time and Carnival relied on NSW Health’s directions.

Hutton pointed to Justice Stewart finding that even a “well-resourced” operator like Carnival would be “in danger of failing to keep up” with the COVID-19 situation, “and it was therefore appropriate to draw on the knowledge and resources of health authorities”.

“That is a finding we entirely embrace. Not just for the reasons given by His Honour, and they’re powerful ones, but in addition to the risk presented at COVID-19, at least at a societal level … really had to be dealt with by a coordinated government effort.

“It is perfectly appropriate in my submissions even for a well-resourced company like Carnival … to take their guidance and mould their precautions based on what had been communicated by these various [government] authorities,” Hutton told the court.

VIEW ALL

Hutton said that if there were a confirmed case of COVID-19, NSW Health would have prevented passengers from embarking, and Carnival would have “unequivocally” offered refunds.

However, he said Justice Stewart determined that there being a risk of contracting the virus “is nearly the same situation as having a positive case” that has been proven through laboratory testing.

Justice Stewart added the outbreak on the Diamond Princess, which toured the Antarctic, should have led to Carnival cancelling its cruise.

Hutton countered by saying the Diamond Princess outbreak was on Carnival’s mind, just as it would have been on NSW Health’s.

“Of course, the Diamond Princess sailed to Japan to Hong Kong and back to Japan, which were recognised as high-risk countries.

“The idea that one would simply assume that what happened there would happen here is contrary to the whole approach of treating this as a reference to epidemiology analysis, which was being undertaken by NSW health authorities and my client,” Hutton said.

The Federal Court was told Justice Stewart’s findings overlooked advice from NSW Health and implicitly suggested it was unreasonable for Carnival not to cancel the cruise.

“In a sense, you’re holding us to the standard of an epidemiologist, you’re asking us to second guess the epidemiologist of NSW health, and you’re making a finding that cuts across an expert witness called at the time on the topic,” Hutton said.

Although Carnival also disputed the breach of consumer law and has sought to set aside the findings, Hutton said he would spend very little time on making those submissions orally before the court, given no damages were awarded beyond the refunds.

The hearing continues.

The case is Susan Karpik v Carnival plc ARBN 107 998 443 & Anor. The case number is NSD1592/2023.