In October 2005, the Plaintiff and her husband went on a tour through Europe which the Plaintiff had booked with the Defendant. While travelling by coach from Prague to Budapest, the Plaintiff got out of her seat to get something from a bag she had stowed in the overhead luggage shelf. The coach braked suddenly; the Plaintiff fell backwards and suffered injury.After returning to Australia, she sued the tour organizer in the Local Court of New South Wales. She alleged that by force of s 74(1) of the Trade Practices Act 1974 (Cth) (“the TPA”) it was an implied term of her contract with the Defendant that the services the Defendant supplied would be rendered with due care and skill, that the Defendant had not done that, and that as a result she had suffered injury.The Defendant relied on an exemption clause providing that”Where the passenger occupies a motorcoach seat fitted with a safety belt, neither the Operators nor their agents or co-operating organisations will be liable for any injury, illness or death or for any damages or claims whatsoever arising from any accident or incident, if the safety belt is not being worn at the time of such accident or incident.”In the District Court of New South Wales, judgment was entered in the Plaintiff’s favour for $22,371 with costs.Upon appeal by the defendant, the High Court d found that the exclusion clause was rendered ineffective because of section 68 of the TPA; however, it also considered the effectiveness of the clause as drafted.It held that the wording of the clause limits the times to which the clause applies to the times when the passenger occupies a seat and therefore should be read as referring only to times when the passenger is seated, not to times when the passenger stands up to move around the coach or to retrieve some item from an overhead shelf or for some other reason. The contract of carriage did not require passengers to remain seated at all times while the coach was in motion.The appeal was dismissed.Full text of judgement Insight Vacations Pty Ltd v Young [2011] HCA 16 of May 11, 2011 available here>>.
