The ‘Ruby Princess’ case and the future of COVID litigation 

The “Plague cruise”

On 8 March 2020, the cruise ship Ruby Princess departed from Sydney for a 13-day cruise to New Zealand. COVID-19 had recently arrived in Australia and had started to spread.

Amongst the passengers were retired nurse Susan Karpik and her husband Henry, a retired police officer. Henry contracted COVID-19 and became very ill, given only a few days to live. Fortunately, he survived. Susan also contracted COVID but was not severely affected.

Susan Karpik was lead applicant in a class action against Carnival plc, charterer of the Ruby Princess which came to trial in 2023. [1] Mrs Karpik sought damages for personal injuries and distress and disappointment of more than $360,000.

The judge found that both Mr and Mrs Karpik’s COVID was ‘more likely than not’ contracted on the voyage. Mrs Karpik claimed Carnival had been negligent, they should have cancelled the cruise. While negligence is the usual cause of action in cases like this, the plaintiffs also advanced claims under the Australian Consumer Law (ACL).  

Consumer Protection under the Australian Consumer Law

The ACL includes guarantees that services provided to a consumer must be reasonably fit for purpose and delivered with due care and skill.  These guarantees cannot be excluded in a contract.

The ACL also prohibits misleading conduct, for example overstating the fuel economy of a car.

It is important to understand that these laws apply only to services supplied by a consumer in the course of trade or commerce, that is, services which a consumer pays for. They would not apply to a public hospital, for example, or someone providing a service voluntarily as a public service. They would not apply to a public school, but would apply to a private school, medical services you pay for, entertainment, shops, hairdressers etc.

The Ruby Princess case is significant because the Court upheld Susan Karpik’s claims that Carnival breached the consumer protection provisions of the ACL because:

• Carnival guaranteed that the cruise would be fit for the purpose of having a safe, relaxing holiday but the services were not of such a quality to achieve that result given the high risk of catching COVID and the poor safety measures enforced. Ideally, the cruise should have been cancelled.
• Carnival misled passengers by representing that it was safe to embark on the cruise, that they had protocols that would protect passengers, and that they would do everything reasonable to enable passengers to have a safe, relaxing and pleasurable cruise.

Accordingly, Susan Karpik and the other members of the class action were entitled to damages for “distress and disappointment”. Although the amount was small ($4,400 which was what she paid for the cruise) the principle is important – it was not necessary for her to produce medical experts to prove she had a physical or psychological injury, the ruined holiday and the distress of seeing her husband on life support was sufficient to warrant an award of damages.

Some highlights of the case

The Ruby Princess judgment includes some very detailed discussion about COVID risk mitigation. This was central to the question of whether Carnival had exercised due care and skill and done everything reasonable to fulfil their promise of a safe and enjoyable cruise.

The complete judgment (1,059 paragraphs) can be downloaded here: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1280

The discussion of “Failure to implement reasonable precautions” starts at par [788], and includes:

• [792] Ironically, the Karpiks were most likely infected at the “safety muster” where 200 people were crammed together.
• [795] Temperature check screening would have reduced risk because at that time 80% of cases included fever.
• [797] Would physical distancing have further reduced risk? There is detailed discussion about aerosol vs droplet transmission, referencing Morawska et al. [801], evidence that “the fact that face mask directives have been more effective than either lockdowns or social distancing in controlling the spread of COVID-19 … is consistent with indoor airborne transmission as the primary driver of the global pandemic.”
• [806] Different concentrations of exhaled infection quanta when breathing, speaking and singing are plotted and discussed and cumulative exposure time vs risk with and without masks at [807].
• [810] “I have found that the respondents… ought to have limited the numbers of people within all parts of the ship so as to allow for physical distancing and closed such parts which could not permit it”
• [811] “Consistently with that evidence, I find that physical distancing was highly effective in preventing coronavirus transmission. Its effectiveness consists of two components. The first is that, if individuals had practised physical distancing as the respondents ought to have encouraged their passengers to do, it is highly unlikely that transmission would have occurred by respiratory droplet transmission. The second is that if capacity limits within indoor areas had been enforced so that the occupancy of those areas could accommodate physical distancing, which the respondents ought to have done, this measure would also have been effective in reducing aerosol transmission, although it would not have adequately made those areas safe for longer periods of time.”
• [819] “In the present case, Mrs Karpik submits that the circumstances are such as to support a finding on the balance of probabilities that if the respondents had introduced pre-embarkation health screening for all passengers and physical distancing measures, Mr Karpik would probably not have been infected with COVID-19. I accept that submission”
• [823]-[824] The judge concludes that if reasonable precautions had been taken, “the most probable result is that Mr Karpik would not have contracted COVID-19”.

Mrs Karpik claimed she suffered long covid following her mild infection [939]-[983]. This was the subject of extensive evidence and consideration concluding at [984] that the judge was not persuaded. This is an informative example of the Court’s approach to considering expert evidence of long covid.

Pointers for future litigation

The Ruby Princess case illustrates how consumer laws might be applicable to many situations where service providers are not taking due care to protect consumers from risk of contracting COVID or other infectious disease.

• Breach of consumer protection law is much easier to prove than negligence
• Action can be brought before anyone is actually injured, for example if a nursing home fails to provide reasonable protection making someone reluctant to engage in activities or causing distress 
• It can be litigated in a State tribunal, where there is generally no risk of being ordered to pay the defendant’s legal costs of the claim fails
• Anyone who “has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention” can be jointly liable, which means that if a hospital or a school follows government advice and is found lacking, the people or departments responsible for the advice can be liable as accessories.
• This can be utilised in any situation where a service is being supplied to a consumer commercially – private schools, private hospitals, aged care facilities, doctors or other health services, even cinemas, restaurants or other retailers – where the provider is not taking reasonable steps to provide the service safely.

Peter Vogel, NSW Solicitor

8 May 2024

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[1] KARPIK v CARNIVAL PLC (The Ruby PRINCESS) [2023] FCA 1280

 

Qantas convicted of crime for standing down Health and Safety Representative.

16 Nov 2023: NSW District Court Justice Russell found Qantas guilty of discriminating against a work health and safety representative who told co-workers not to clean planes from China the day after Australia closed its borders to such arrivals.

Qantas ground staff employee Mr Theo Seremetidis was a health and safety representative (HSR) at the start of the pandemic.

 On 27^th Jan 2020 some ground crew expressed concerns about cleaning a flight from China. Theo, as their safety representative, told them they have the right to refuse unsafe work. He asked Qantas what risk assessment had been done, and why they had not consulted with workers.

Qantas did not respond.

 The next day, Qantas sent an email to staff, – excluding Theo – saying “Very low to zero risk of getting the virus. Not airborne. Masks and gloves not required. Best defence is usual hygiene rules – washing hands properly for 20 seconds”.

Qantas gave three staff who refused to clean a plane arriving from China a letter warning them they would be disciplined if they refused again, because “the risk of aircraft workers contracting Coronavirus as a result of working on aircraft is negligible”.

On the 1^st Feb, the government announced a travel ban from mainland China. Theo also discovered a journal article that suggested coronavirus had been caught from asymptomatic people. Theo told his co-workers they did not have to clean planes from China if they felt it was unsafe.

The next day, a Qantas representative said to him “Theo, we’re standing you down today because you’re causing anxiety to workers because you’ve ceased unsafe work.”

The judge found no evidence that Theo was causing anxiety, and that “The reason for standing down Mr Seremetidis on 2 February 2020 was, as found and discussed above, because Mr Seremetidis gave directions under s 85 of the WHS Act for workers to cease unsafe work.”

Stop-work directions under s 85 must be “reasonable”. The judge said “I find that Mr Seremetidis held a concern which was reasonable that cleaning planes arriving from China posed a health risk to workers. From the perspective of an ordinary and reasonable person in the position of Mr Seremetidis, and taking into account the course of events up until 2 February 2020, his concern was neither fanciful, illogical or irrational. I find that it was reasonable. Thus, one of the elements for the exercise of a s 85 power has been established by the evidence” and “The step taken by the Federal Government on 1 February 2020 of closing Australia’s borders to one-fifth of the people on earth demonstrates that the risk posed by Coronavirus to those exposed to it was a serious risk.”

However, the Act requires the HSR to consult with the employer before issuing a stop-work order, and the judge found that Theo did not do this. Qantas had not stood Theo down because of this failing, “It was simply that he had in fact given the directions”. This was unlawful and “all of the elements of the charge have been established beyond a reasonable doubt.” The penalty will be decided at a Sentencing Hearing. The maximum penalty for a company is $634,700 and $127,050 for any person involved. The Court can also order Theo be paid compensation (any amount considered appropriate) or that his job be reinstated.

Summary by Peter Vogel, solicitor, 16 Nov 2023

Refusal to grant “School pandemic leave” was unlawful discrimination: NSW Tribunal decision.

Fiona* lives with type 1 diabetes which puts her at elevated risk should she contract COVID-19. Her son attended a NSW primary school during 2020-2021. When schools returned to the classroom, she applied for leave keep her son home to avoid the risk of infection at school. The school refused, and eventually threatened to take Fiona to court if he did not return to school. Fiona claimed that the NSW Department of Education discriminated against her and her son by not allowing “home learning” even though her doctor provided a letter recommending her son not attend school while the risk of COVID-19 was high.

The claim of disability discrimination was initially dismissed by NCAT (NSW Consumer and Administrative Tribunal). Fiona appealed, and the decision was today overturned by the Appeal Panel.

The Appeal Panel agreed with Fiona’s submission that the Principal has a discretion to grant leave for any reason and the refusal to do so was discriminatory, particularly when the same Principal had granted leave to a child whose parent was undergoing chemotherapy. Fiona argued that:

(a) Whether the student was able to attend school or not is irrelevant. The issue is whether they could do so as safely as a child whose parent was not disabled. In this case, medical evidence and opinion was that the Appellant’s child was at higher risk of injuring his mother than other children whose mother was not a high risk.

(b) Making education available only if the child attended in person, when a viable, safer alternative was available and requested, is analogous to making education available only in classrooms that are not accessible by wheelchair. It would be no answer to a claim that such conduct was discriminatory to say “Neither the applicant nor child were denied the benefit of attending school” because children in wheelchairs could look in through a window.

The Appeal Panel agreed. They noted that “We find that Ms Parker [the Principal’s] state of mind was that whilst she was willing to readily approve the application for the parent undergoing chemotherapy ‘in order not to compromise the parents having no immune system operating’ she doubted that the Appellant’ s condition could be equally worthy ‘bearing in mind there were no cases in our community and at all through 2020’… We further find on the evidence that the different health conditions are not materially different in respect of their worthiness with respect to an application for flexible home learning services and exemption from attendance at school.”

The complaint was substantiated on all grounds and the Department of Education was ordered to pay FVN $15,000 compensation for hurt, distress, inconvenience and humiliation.

Full decision: FVN v Secretary, Department of Education [2023] NSWCATAP 301 https://tinyurl.com/3mcbxdaz
Peter Vogel, Solicitor for SVN, 8 Nov 2023.
*Fiona is a pseudonym, for privacy reasons.