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At Melbourne



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Date of document: 5 November 2014

Filed on behalf of: The Plaintiff

Prepared by: Sol. Code: 55312

Ditcher Quick & Hyde

Solicitors, Tel: (03) 9564 1243

115 Park Lane, DX: 9899 Gisela

MELBOURNE VIC 3000 Ref: ADC, 341

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1. The plaintiff is a consumer under the Australian Consumer Law 2010.

2. The defendant at all material times was engaged in trade and commerce.

3. The plaintiff formed a contract with the defendant on 7 June 2014, for a tour holiday.

(i) He booked and paid for this tour holiday, by bus, which commenced on 9

July 2014.

(ii) On 14 July 2014, the bus could not ford the Pushalong River and was

submerged partially in the river.

(iii) His luggage, amounting to $2000-00; which included a rare cricket

ball, signed by Sir Donald Bradman, was damaged.

(iv) He was disappointed with tour, which included just two world class,

instead of the promised five heritage sites.


(i) A brochure and proposed itinerary were sent to the plaintiff by the defendant, regarding the tour.

(ii) The plaintiff expressed his willingness to the defendant to undertake the tour.

(iii) A tour confirmation form was signed by the plaintiff and despatched along with

the tour ticket amount of $2500 to the defendant.

(iv) Agreement was formed on 7 June 2014, when the tour ticket was issued by the


4. The plaintiff’s luggage, valued at $2000, was damaged; and he was disappointed with the operation of the tour.

5. Express Terms

The advertisement displayed the following:

(i) You will be guaranteed a great time.

(ii) We will enable you to visit 5 world class heritage sites.

(iii) Visit our head office for more information.

The terms of the agreement displayed at the defendant’s head office, which had not been noticed by the plaintiff, as he had not visited that place, were:

(i) Adventure Australia’s liability for lost, destroyed or damaged property will not exceed $200 for any one item.

(ii) Adventure Australia Ltd is not responsible for any injury suffered by any passengers.

(iii) Adventure Australia Ltd accepts no liability for any loss or damage which may result from the cancellation or abandonment of the tour (should Adventure Australia Ltd, its servants or agents decide that such abandonment is necessary) or for any deviation or delay in any tour or from any cause whatsoever.

6. Details of the incident resulting in loss to the plaintiff.

(i) On 14 July 2014, the bus driver took an alternative route to increase the variety of the tour experience.

(ii) This was unscheduled, and involved the fording of the Pushalong River.

(iii) The bus got partially submerged in the river and became immobile.

(iv) Severe damage was caused to the plaintiff’s luggage.

(v) The tour was abandoned after this incident, and the plaintiff experienced considerable distress and disappointment.

(vi) The bus driver and the tour operator failed to take proper care.

(vii) The defendant failed to take the announced route.

(viii) Instead of the promised five, the plan was to visit just two world class sites.

7. After this incident, on 14 July 2014, the tour was abandoned.

8. Breach of contract by the defendant caused loss to the plaintiff.


(i) Economic losses

Damage to luggage $2,000.

Tour cancellation $2,500.

Breach of contract

(ii) Non-Economic losses

Damages for mental agony

Damages for disappointment

Damages for negligence

9. Implied Terms

(i) Duty of care

The defendant breached the implied terms of the contract, namely quality of services, under the provisions of the Competition and Consumer Act 2010.

10. At all material times the defendant knew or ought to have known that the plaintiff depended on the actions of the defendant for his care and safety (under section 48-50 Wrongs and Other Acts (Law of Negligence Act) 2003 (Vic)).

An individual owes a duty of care to another, whereby he has to provide a warning or other information to that other person, with regard to a risk or other issue.

11. In supplying the said services to the plaintiff in trade or commerce, the defendant guaranteed the plaintiff that services would be rendered with due care and skill (the ‘care and skill guarantee’). The guarantee arose in law pursuant to section 60 of the Australian Consumer Law. This was breached by the defendant.

12. In conducting the tour, in supplying the said services to the plaintiff in trade or commerce, the defendant further guaranteed them that:

(i) The services supplied would be reasonably fit for that purpose (the ‘purpose guarantee’).

The guarantee arose in law pursuant to section 61(1) of the Australian consumer Law.

13. Consequent to the aforementioned matters the defendant owes the plaintiff a duty of care, which it had breached.


(i) The defendant has failed in its duty of care by driving the bus with care.

(ii) The defendant has failed to verify whether the bus could ford the river.

(iii) The defendant has permitted damage to the plaintiff’s luggage on the bus.

(iv) The defendant has failed to safeguard the plaintiff from the danger posed by the crocodiles in the river.

(v) The defendant has failed to take the necessary precautions for continuing with the tour.

14. Due to the negligence and reckless behaviour of the defendant, the plaintiff suffered economic loss and non-economic loss.

15. The plaintiff suffered loss or damage because of the said contraventions of the care and skill guarantee, purpose guarantee and/or result guarantee, in that, having embarked upon the tour itinerary during the relevant period he did not experience, or substantially experience, travel and touring to scheduled destinations.

16. The services supplied to the plaintiff:

(i) would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure to comply with care and skill guarantee, the purpose guarantee and/or the result guarantee; and/or

(ii) were substantially unfit for the purpose for which service is of the same kind were commonly supplied would not, easily and within a reasonable time, be remedied so as to make fit the such purpose; and/or

(iii) were not of such a nature, quality, state or condition that might reasonably be expected to achieve the result desired by the plaintiff, that was made known to the defendant.

17. In the premises, the said failures to comply with the consumer guarantees could not, or cannot be remedied, or were a ‘major failure’ within the meaning of ss 267(3) and 268 of the Australian Consumer Law.

The plaintiff contends, in support of his personal claim, that he suffered the following loss and damage:

(i) the price of the tour;

(ii) price of the cricket ball autographed by Sir Donald Bradman;

(iii) a reduction the value of services below the price paid by him or those services; and

(iv) inconvenience, distress and disappointment.

The plaintiff claims these on the basis of the following:

The Wrongs Act 1958 (Vic) under Part VBA provides for recovery of damages for non-economic loss, including pain and suffering, and loss of enjoyment, under limited circumstances.


(i) Economic losses

Damage to luggage $2,000.

Tour cancellation $2,500.

(ii) Non-Economic losses

Damages for mental agony

Damages for disappointment

18. The defendant is vicariously liable for the bus driver’s negligence in exercising his duties.

19. The plaintiff claims:

(A) Damages

(i) Damages for the losses suffered.

(ii) Costs.

(iii) Interest accrued on the amounts claimed.

(iv)Such further order or orders deemed appropriate by the honourable court.

(B) A declaration that the plaintiff has no obligation pursuant to the agreement.

Ditcher Quick 5 November 2014.