Lawyers from Carnival Corporation and Princess Cruises have appealed findings and claimed they relied on NSW Health for direction when COVID-19 broke out onboard the Ruby Princess in March 2020.
The company has appealed Justice Angus Stewart’s findings that it breached consumer law when the ship departed Sydney in March 2020, knowing of the COVID-19 situation in Australia and around the world.
Carnival PLC has told an appeals court hearing that it was not required at the time to eliminate the risk of death by Covid-19.
Around 600 people onboard the ship contracted the virus and 28 others died as a result of sailing on the ship.
Susan Karpik, who is the lead plaintiff in the class action, was found last year to be entitled to damages relating to distress and disappointment. But Justice Stewart handed down a limit saying Karpik was entitled to no more than a $4,400 refund already provided.
Karpik has also launched an appeal of Justice Stewart’s findings.
It will be one of the first of three hearing dates before the Federal Court’s full bench, counsel from Carnival PC. James Hutton SC said Carnival disputed a finding of negligence, misleading or deceptive conduct, and said their issues at law for consumer guarantees.
The crux of Hutton’s submissions was Covid-19 was a developing issue at the time and that Carnival relied on NSW Health’s directors.
Hutton pointed to Justice Steward’s 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.
He also said that if there was a confirmed case of Covid-19 on the ship, NSW Health would have prevented cruisers from embarking and Carnival would have “unequivocally” offered a refund.
He said Justice Stewart determined that there being a risk of contracting the virus “is nearly the same situation as having a positive case”, which was proven through laboratory testing.
Justice Stewart added the outbreak that Carnival was well aware of Diamond Princess outbreak and it should have led to the company cancelling to Ruby Princess.
Hutton countered by saying that while the Diamond Princess may have been on Carnival’s mind, it would have also been on NSW Health’s.
“Of course, the Diamond Princess sailed 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.
Carnival also disputed the beach in consumer laws and has sought to set those findings aside.
The hearing continues.
