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A Federal Court judge has found the operator of the Ruby Princess cruise ship should have cancelled a voyage from Sydney to New Zealand at the start of the COVID-19 pandemic and made misleading representations to passengers that it was reasonably safe to embark on the cruise.
In a decision on Wednesday, Federal Court Justice Angus Stewart awarded the lead plaintiff in a class action for out-of-pocket medical expenses totalling $4423.48 plus interest after finding she most likely contracted the virus on board the ship. The decision leaves the door open to payments being made to other members of the class action.
The Ruby Princess pictured on arrival in Circular Quay on March 19, 2020.Credit: Kate Geraghty
Susan Karpik and her husband, Henry, were among 2600 passengers who boarded the cruise on March 8, 2020, when it departed Sydney for a voyage to New Zealand. The trip was cut short when Australia announced pandemic restrictions and the vessel arrived back in Sydney on March 19.
Karpik, a retired nurse from Figtree in Wollongong, was the lead applicant in the class action against cruise operator Princess Cruises and its parent company Carnival Plc. Her lawyers argued the companies breached both a duty of care owed to cruise passengers and provisions of the Australian consumer law.
Henry Karpik, a retired police officer, began to feel unwell on the ship and was admitted to intensive care at Wollongong Hospital on March 21 with COVID-19. He was intubated, ventilated and placed in a medically induced coma. Stewart found he most likely contracted the virus on the ship.
Doctors initially estimated that Henry Karpik had one to three days to live, while his wife of 50 years was unable to visit him because she was required to isolate. He survived after being in a coma for about four weeks.
In a summary of his judgment, delivered in the Federal Court in Sydney, Stewart said Carnival and Princess Cruises knew or ought to have known about the heightened risk of a COVID-19 outbreak on the vessel and its potentially lethal consequences.
“To the respondents’ knowledge, to proceed with the cruise carried a significant risk of a coronavirus outbreak with possible disastrous consequences, yet they proceeded regardless,” Stewart said.
He found a reasonable person in the position of the cruise ship operator would have cancelled the cruise and the companies were therefore negligent and in breach of their duty of care.
Stewart said the companies were also negligent in relation to precautions taken for passenger safety, and should have implemented better pre-embarkation screening, including temperature screening, and physical distancing on board, and isolated ill passengers from March 11, 2020.
He found the companies had made “misleading representations that it was reasonably safe for passengers to embark on the cruise, that the respondents would take reasonable care for the safety of passengers during the cruise, that they would implement increased monitoring, screening and sanitation protocols” and would do all things reasonably necessary to enable passengers had safe, relaxing and pleasurable cruise.
Stewart found Susan Karpik’s own coronavirus infection gave rise to very mild symptoms and said she did not suffer from long COVID. “Her adjustment disorder was of moderate severity and of relatively short duration,” he said.
On this basis, she did not receive damages for her personal injuries. However, Stewart said she was successful in her claim for out-of-pocket medical expenses totalling $4423.48 plus interest.
He said Karpik was also entitled to distress and disappointment damages on all her claims but that all passengers had received a refund, and he assessed damages at “no more than the refund” of about $4400. On this basis, he said Karpik received “nothing on this head of damages”.
Vicky Antzoulatos, Shine Lawyers joint head of class actions, ran the case. She said Carnival “should now do the right thing and compensate all the passengers rather than prolong the matter through further litigation”.
The NSW Special Commission of Inquiry into the Ruby Princess, which examined missteps in containing wider community transmission of the virus by passengers disembarking in Sydney, confirmed that 39.4 per cent or 663 of the 1682 Australian passengers on board the cruise contracted COVID-19. There were 20 Australian deaths associated with the voyage.
Carnival Australia was approached for comment.
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