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Remember the Ruby Princess cruise ship? The ship sailed just as the COVID pandemic was starting to spread and returned to Sydney with 1 in 4 passengers infected with COVID in March 2020. The Federal Court has found that the operator, Carnival knew of the risk of COVID contagion and was liable to compensate the passengers. But the compensation Carnival was ordered to pay was minimal. Only the expenses for treatment and pharmaceuticals. Nothing for pain and suffering, and the refund of the cruise price was sufficient to compensate for the distress and disappointment in not having a safe, relaxing and enjoyable cruise. For more detail see my article:
But is it false imprisonment if a ship's captain confines the offender to their cabin? See my article for the answer
Cancellation insurance does not cover cancellations due to travel restrictions / border closures – as ‘Big Red Bash’ music festival promoter found out to its cost – click for more
New tax rules apply if you are employing working holiday makers With the re-opening of Australia’s international borders, the trickle of working holiday makers will become a stream. Many will be on the Subclass 417 visa program which is a cultural exchange program for young adults (aged 18 to 30/35) from 19 eligible partner countries. The program allows them to work in Australia while having an extended holiday. It is a requirement that they work 3 months in the agriculture, construction or healthcare sectors. Most will also work in the hospitality sector in bars, restaurants and hotels during their 12 month visa stays. Some will extend their visa for another 12 months. The Australian Taxation Office has a number of
requirements for employers. For more,
click
Do you need to wear helmet when flying economy class? Four seats in every row of ten in economy class in an Airbus A380 are aisle seats. Aisle seats have benefits because they have easy access to the toilets, a little extra leg room and make exiting the aircraft faster. But they can be dangerous. The danger comes from above. It is the overhead locker. Stephen Bradshaw was sitting in the aisle seat in economy class on an Emirates A380 Airbus which was an hour away from landing in Dubai. The fasten seatbelt sign was not on. Another passenger opened the overhead locker above him. Suddenly, the aircraft banked and a child’s hard-shell suitcase fell out of the overhead locker above Mr Bradshaw and struck him on the head. Fortunately, the suitcase was empty. Mr Bradshaw’s forehead was red, but not bleeding. The cabin crew administered an ice pack to his forehead and offered Panadol. He had a “very painful and uncomfortable journey” but did not suffer any after-effects when he got home. In every air ticket you will find a reference to the Montreal Convention, which is the international convention governing passenger rights for air travel. The Montreal Convention deals with passenger injuries. It states that the airline is liable to compensate passengers who sustain an injury caused by an accident on board an aircraft without the passenger needing to prove the airline was at fault. Emirates was willing to pay medical expenses and for medicines, but did not offer any cash compensation or compensation in lieu such as a loyalty points voucher or an upgrade on the next flight. Mr Bradshaw went to Court and was awarded $5,000 for “pain and suffering and the loss of amenities of life”. No-one wears helmets when sitting in the aisle seat in an aircraft, but given there are an estimated 450 serious incidents of baggage falling from overhead lockers onto passengers each year around the world, perhaps helmets should be offered along with drinks. For the full story, click Must airlines compensate in-flight injuries?
From 18 October 2021, only adults who are fully vaccinated are allowed to work in or visit all businesses that are allowed to open in NSW. Unvaccinated adults are allowed only to work in or visit essential retail premises such as chemists and supermarkets and businesses with take away or click and collect. How should businesses treat unvaccinated staff? Businesses should strongly recommend that unvaccinated adult staff obtain vaccination advice from a general practitioner. If the staff decide to remain unvaccinated (without having a medical contraindication certificate), the business may either put them on paid or unpaid leave, or give notice to terminate their employment, or restrict them to working from home. As to unvaccinated staff in critical retail premises, the trend amongst large retail businesses is to adopt a vaccination policy along the lines of the NSW Public Health Order. One thing is clear – unvaccinated staff (without a certificate) are not able to come to work at the business premises of non-essential businesses until at least 1 December 2021 in NSW.
White Island Volcano victims win the right to sue Royal Caribbean Cruises in Florida
The Federal Court of Australia has cleared the way for
victims of the White Island Volcano to sue in Florida,
despite every effort by Royal Caribbean Cruises to force
them to sue in New South Wales. The victim's stories are as sad as can be - Paul, Stephanie and Krystal Browitt suffered horrific injuries from the molten ash and rock that spewed from the erupting volcano. Krystal died that day from her injuries. Paul died from his injuries in hospital a month later. Stephanie suffered third-degree burns to more than 70% of her body and remained in a coma for over two weeks. Stephanie and Krystal’s mother, Paul’s wife, Maria (Marie) Browitt, was not part of the tour party to the island. She had stayed on board the cruise liner, Ovation of the Seas. Marie has suffered unbearable loss and psychological injury. She is now Stephanie’s full-time carer. Marie and Stephanie, who are from Melbourne, want to sue the cruise liner in Florida, because the Florida Courts award higher damages than the Courts of New South Wales, have a jury assess damages and have pre-trial discovery. Royal Caribbean wanted the claims to be heard in New South Wales, where the damages awards are lower, relying on the ‘exclusive jurisdiction’ clause in the fine print which specified that all claims be heard by a court in New South Wales. To find out why Royal Caribbean failed, click here
The ill-fated White Island volcano tour The White Island volcano tour in New Zealand offered an incredible experience with more than a hint of danger - “you'll see the likes of roaring steam vents and ash-soaked ground as well as deposits of vivid yellow sulphur”. Two of the badly burnt survivors if the ill-fated tour to the island on 9 December 2019 were American, so they sued Royal Caribbean, the cruise line, in Florida where they could expect to receive a sympathetic jury trial and to be awarded punitive damages. But Royal Caribbean has other plans. It wants to force the all 25 survivors and relatives of the 22 dead to sue in New South Wales, where there are no jury trials and no punitive damages. Royal Caribbean may not be liable at all given that they will use the 'obvious risk' defence to avoid liability. This article looks at the current status of both legal proceedings.
How do ski jet accidents happen? A survey of five court decisions reveals that 3 were collisions, 1 was falling off and 1 was a foot amputated by a tow rope. The Court awarded compensation for negligence in 4 cases. For more click: Jet Ski Accidents – mixed results for personal injury claims
Trivago's bag of tricks exposed Trivago is a popular website which allows the public to compare hotel prices. If you enter your destination and stay dates, a range of hotel rooms will be displayed. At the top of the list are the best room rates for like-for-like rooms. If the traveller clicks on a room price, they will be redirected to the hotel's booking site to make the booking. So where does Trivago make its money? Trivago does not charge a commission to the hotel for the booking. Instead, Trivago charges the hotel 'pay per click'. The amount hotels pay per click is left to the hotel, with the incentive being that the more the hotel offers to pay per click, the higher the ranking in the search. Three years ago, the Australian Consumer Watchdog - the ACCC (Australian Competition and Consumer Commission) - began investigating misleading practices Trivago used in its marketing Recently, the Federal Court of Australia found Trivago guilty of four misrepresentations, or 'tricks'. They were:
For more details on the Federal Court decision, click How the Trivago online business model failed the Australian Consumer Law test
If You injure yourself on holidays the fine print might take away your claim Walking along a jetty, swimming at a beach or in a pool, snow and surf skiing, boating, dolphin and whale watching, and going on theme park rides are all enjoyable holiday activities. No one gives a thought about suffering a serious injury, but injuries happen every day. And when they do, apart from the pain and suffering there are hospital, medical and physio expenses, there is time off work and the cost of carers and helpers. Who pays for these? Or more to the point, can you recover these expenses and costs from the owner of the place, such as the Council, or the operator of the activity? The first answer lies in the Civil Liability Laws. The second answer lies in the fine print that the Laws allow the owner or operator to exclude liability. The image at the top is the new sign Coffs Harbour Council has placed at the entry to its famous jetty which contains many warnings. The sign was put up after the Council lost a NSW Court of Appeal case where it was ordered to pay more than $500,000 because its previous sign was not clear enough. That explains the legalese in the wording! But in most cases, the sign or warning is clear enough and the Council or operator is not liable. For my case summary on the Coffs Harbour Jetty case click
For viagogo, profit comes before all else Rarely have I heard a Judge be so scathing about a party's misbehaviour as Justice Katzmann was about viagogo! This is a selection: "Viagogo’s responses give it the appearance of being a company that is indifferent to the interests of Australian consumers and which prefers to elevate its own profit motives above those interests, even when on notice of the potential for harm being done.” "The representations were on an industrial scale for the relevant period."
“Viagogo’s corrective action [to change its website] was
taken very late [some time after the delivery of the
liability judgment] and for it was the legal equivalent of
drawing teeth.” For more, see this link
Niccolò Machiavelli is famous for his clever political plans in his book The Prince written in 1513. This is the story of a modern day Machiavellian plan. The scene is a restaurant bearing his name, Machiavelli Ristorante Italiano in Clarence Street Sydney.
The players are the restaurant manager and the investor. The plot The players jointly purchased the restaurant for a price of $850,000, of which $450,000 was paid in cash to an associate of the seller, which the manager paid, and $400,000 was paid under a proper Contract, which the investor partly financed. The business was awash with cash: the staff wages were paid in cash stuffed into envelopes, suppliers were paid in cash and the players paid $1,000 a week to each of their families in cash. They kept two sets of books - the tax books without the cash entries and the true books with the cash entries. The players started to argue. The manager sidelined the investor by blocking online access to the financial accounts by making them read-only. The Machiavellian Plan The investor decided on a plan to force the manager to buy him out for $600,000 by using the threat of liquidating the business as his bargaining lever. The manager refused. The investor went to court to ask the court appoint a liquidator claiming he was being oppressed because access to the financial accounts was restricted. The result Justice Black was appalled by the cash transactions and the tax evasion. He decided not to help either the investor or the manager and refused to make court orders for a buy out or for the appointment of a liquidator. Justice Black would have referred the court file to the Australian Taxation Office had the parties not voluntarily disclosed the true position to the ATO before the hearing. The moral The courts won't help people with Machiavellian plans if they are running a cash business. For my case note click on Don't be a minority shareholder without a shareholders agreement for protection
For COVID-19 travel refunds, the ACCC sits on the fence The ACCC - the Australian Competition and Consumer Commission - is the Australian Consumer Law watchdog. The ACCC provides the latest information on consumer rights, travel and event cancellations in relation to COVID-19 on its website with a special Q&A section: My flight, tour or cruise has been cancelled. Am I entitled to a refund? Allowing for the fact that it is impossible to lay down general rules for an industry as diverse as the travel industry - from flights, cruises, day trips, tours, resorts, hotels and sports packages - the rules the ACCC lays down are vague and contradictory. For example:
Allow me to answer the question Am I entitled to a refund? in this way:
For more details on refunds for COVID-19 travel cancellations, click on my article My flight, tour or cruise has been cancelled because of COVID-19 travel restrictions. Am I entitled to a refund?
Four reasons why Trivago hotel room reviews can't be trusted The Trivago hotel room comparison website was put under the spotlight by the Federal Court of Australia last week, and was found wanting! As the Court put it, 'Trivago misled the public as to the nature, characteristics and suitability for purpose of the accommodation search service provided by the Trivago website'. The Court found that Trivago hotel room reviews can't be trusted for these four reasons:
The Court concluded that in only 33.2% of the time was the 'Top Deal' highlighted by Trivago the cheapest price. For a full analysis of the Court's decision, click on my case note Cheap rooms? Probably not? Trivago's top deals are hotels which pay the most
Do you have a right to peace and quiet (if your neighbour is a hotel)? If you buy an apartment or house next door to a long-established hotel, do you have a right to complain about the crowd noise from patrons or the loud music? Complain is what Mr Ammon did after he bought a luxury three bedroom apartment in the Raffles Hotel (Apartments) which overlooked the beer garden and the Riverside function room of the Raffles Hotel (see the low building in the centre of the image). He brought the little-known legal action for tort for private nuisance. He claimed that the loud noise from the hotel caused a 'substantial and unreasonable interference' with his peaceful enjoyment, especially on Wednesday, Thursday, Friday and Saturday evenings when the music was played after 9:00 pm at night. He complained he was unable to sleep, read his book, and watch the TV, even with the balcony doors and windows closed. The Court of Appeal of Western Australia were not convinced. But it was not the 'hotel was there first and so don't complain' argument that won out. It was the 'what do you expect when you buy close to two highways where the traffic noise is higher than the crowd noise and the music from the hotel most of time' that won the day. As the court said, you have no right to peace and quiet. You must ask whether the noise is reasonable for the locality. In this case, it was. The lesson is that if the owner of the hotel applies to extend the hours of operation, or applies for a permit for renovations or extensions, the time to complain is when the application is made. It is a lot easier for a local authority to impose and enforce a condition or regulation relating to noise levels than it is for a neighbour to succeed in an action for private nuisance for noise pollution. For my case note click Do you have a right to peace and quiet (if you live next door to a hotel)?
The Castle is a great movie because it captures the emotional attachment Australians have to their home and to living a friendly and peaceful neighbourhood. Town planning laws support this by strictly separating residential from business and commercial areas, with exceptions for home offices and occupations. However, Airbnb style short-term rentals have disturbed the neighbours, especially in strata buildings, because the guests come and go frequently, some are noisy, some hold parties and some cause damage. They have disturbed the Local Councils because Airbnb rentals introduce a commercial activity into residential areas. For the past three years, the NSW Government has been searching for a compromise between encouraging tourism and allowing people to make extra money on the one hand, and complaints by voters of increased levels of noise and disturbance in residential neighbourhoods on the other. Now the NSW Government has introduced new laws to regulate short-term rentals. In summary:
Of course, there are many fine details. To find out more click Be ready for the new Airbnb / short-term letting laws which will start in 2019 in NSW Meriton in trouble for filtering out negative guest reviews The long arm of the law has caught Meriton Suites and has fined it $3 million for filtering out negative guest reviews, leaving the favourable reviews of its serviced apartments. While Meriton is known as a high rise apartment builder, it has 13 high rise serviced apartment buildings in Sydney, Sydney Surrounds, Brisbane and the Gold Coast. The hotel business is proving to be very successful, with 4 more high rise buildings of what it calls Meriton Suites under construction. By encouraging guests to post reviews on TripAdviser, the world's largest travel website, a hotel can increase its ranking, gain more prominence, and increase bookings. To encourage guest reviews, TripAdvisor provides a service where if a hotel supplies it with the email addresses of its guests and an email template, then it will email the guests and prompt them to write reviews. It is called Review Express. Meriton Suites knows that to prosper in the highly competitive accommodation industry, it needs to encourage favourable reviews. So it adopted a company policy that the check out clerk would ask "Have you enjoyed your stay?" If the response was negative, they would add 'MSA" to the guest's email address before sending it to TripAdvisor, to ensure it would 'bounce'. And if there was a major service disruption, such as lifts not working, they would not send the email address to TripAdvisor at all. The Federal Court has held that this is deceptive conduct, in breach of the Australian Consumer Law. Meriton was ordered to pay a $3 million fine, to not engage in manipulating guest reviews for 3 years and to adopt a strict Compliance Policy. The lesson for Meriton is to say ‘sorry’ and do its best to deal with the complaint. For more information, click on my case note Meriton Suites fined $3m for manipulating TripAdvisor Reviews
New NSW policy welcomes short stay rentals (Airbnb style) On 5 June 2018, the New South Wales Government announced a new policy for hosts for short-term Airbnb style holiday letting. The new policy will affect both owner-occupiers and investors. The key is a new cap of 180 days in any one year on short-term lettings for an investment property, meaning a property that is not owner-occupied. The cap does not apply to owner-occupiers who rent a spare room or rooms. Owner-occupiers - who rent 'rooms' in houses and home units anywhere in NSW - There is no cap on the number of days in a year that rooms can be let for short-term lettings. This applies to owners who let part of the house for short-term lettings, and live in another part. If breakfast is served, a B & B Licence might be needed from the Local Council. Investors - who rent 'whole' houses and home units outside of Sydney - There is no cap on the number of days in a year that the whole house or home unit can be let for short-term lettings. Investors - who rent 'whole' houses and home units in Greater Sydney - there is a cap of 180 days in any one year for short-term lettings. The boundary line for the Greater Sydney Region is yet to be drawn. Investors - who rent home units in Sydney - If the Owners Corporation passes a 75% majority resolution (a special resolution) then it can ban short-term lettings by investors of 'entire' home units in the building. This cannot affect owner-occupiers who let rooms. It is not clear whether existing bans will be allowed to continue, or whether a new resolution will be needed. For all short-term lettings, there will be a new mandatory Code of Conduct that hosts and guest must follow, accompanied by a two-strike policy, whereby hosts or guests who commit two serious breaches of the code within two years will be banned for five years and listed on an exclusion register. For more details on the new rules, click Is the new NSW Government policy a win-win for short-term (Airbnb style) holiday letting? Dreamworld tragedy highlights legal Duty of Care for theme park guests Theme park visitors should not need to worry about being injured, let alone killed, on the rides. They expect to be in a safe environment - because of the legal duty of care the theme park operator owes to its guests. The Thunder River Rapids Ride at Dreamworld was not safe on 25 October 2016. When the raft reached the top of the conveyor belt it collided with a stationary raft stuck at the top. The raft flipped, two adults were killed - crushed by the raft, two adults were killed - drowned when they fell through the slats in the conveyor belt, and two children were thrown clear. Dreamworld breached its legal duty of care to maintain a safe ride, and will now face the consequences. To read more click here
Sleaze has no place in the workplace
Why good lighting on the stairs
reduces liability risk for leisure venues
The Publican, the Patron, the
Drinks and the Punch
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