Booy v Kangaroo Tours Pty Ltd t/a Tavelworld Harbour Town [2010] QCAT 667

CITATION: Booy v Kangaroo Tours Pty Ltd t/a Tavelworld Harbour Town [2010] QCAT 667 PARTIES: Ms Shirley Anne Booy v Kangaroo Tours Ptd Ltd (trading as Travelworld Harbour Town) APPLICATION NUMBER: 1570/10 MATTER TYPE: Minor civil dispute HEARING DATE: 26 November 2010 HEARD AT: Southport DECISION OF: Ms J Cowdroy DELIVERED ON: 23 December 2010 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed. CATCHWORDS : Payment for travel – trip not taken because of delay with visa and medical equipment – whether arrangements for visa and medical equipment were respondent’s responsibility – applicant’s reliance on agent – whether such arrangements formed part of contract, application dismissed APPEARANCES and REPRESENTATION (if any): APPLICANT : Ms Shirley Anne Booy represented herself RESPONDENT: Kangaroo Tours Ptd Ltd (trading as Travelworld Harbour Town) was represented by Mr G Palmer -- 1 of 6 -- ` REASONS FOR DECISION BACKGROUND TO THE APPLICATION: [1] The applicant booked through the respondent, airfares to and from Australia to Havana and a tour of Cuba for 14 nights. The tour was to commence on 21 February 2010. The applicant did not take the trip and she is seeking compensation from the respondent for the costs of the trip and associated expenses, totalling $7300. [2] The respondent contends that the applicant’s failure to board the plane in Australia because of any delay in completing visa documents at the airport and the refusal of the airline to allow the applicant to travel without an oxygen machine are not events for which he is responsible. He refutes the claim in its entirety. THE ISSUE [3] The issue to be determined is whether the respondent, by his actions or omissions, breached a term of the contract with the applicant and is Iiable for all or part of the applicant’s claim. . APPLICANT’S CASE Ms Booy [4] Ms Booy has a heath condition, which at times necessitates the use of an oxygen machine. Upon arrival at the airport for departure to Melbourne on 19 February 2010, she showed the airport staff a letter from her doctor who recommended the use of oxygen whenever she travelled by air. She indicated that it was unlikely that she would need it. She thought that if oxygen was required, she could use the oxygen machine on the plane. She had not planned to advise the airport staff about the doctor’s letter however she did mention to them that it was just a “precaution thing”. [5] Airport staff advised that she must provide her own oxygen machine as the oxygen on board was only for emergency use. She was denied the flight. She subsequently returned to the Gold Coast and advised the respondent what had occurred. Mr Palmer made phone calls and completed the necessary documents for an oxygen machine to accompany Ms Booy on another flight. In the meantime, Ms Booy travelled to Logan to hire an oxygen machine. She then caught a flight to Melbourne with the oxygen machine in the early hours of 20 February 2010. [6] Upon arriving at Melbourne she was informed that she could not board the flight to Los Angeles, (with subsequent connection to Havana), because she had no American or Cuban visa. She was informed that she could obtain visas on-line at the airport, which she did. It was a time 2 -- 2 of 6 -- ` consuming procedure and to use her words a “daunting and stressful prospect”. She was at the airport three hours prior to the flight departure so could not explain why she was the last to check in, but obtaining the visas took a long time. [7] She was then advised that she did not have the required medical forms for the oxygen machine to travel to LA and, in any event it was of a type that would not allow her to travel in economy class. She was not permitted to board the plane. It was suggested she stay in Melbourne overnight, then fly to Sydney the next day and catch a flight to LA, if everything was in order. By that time Ms Booy decided that she would not take the trip and wanted to return home. [8] She was then advised she could not return to Brisbane without the necessary medical clearance for the oxygen machine. She caught a taxi to a doctor in Melbourne, had the forms filled out and returned to the airport. She paid an additional $190 because of the change of flight. She missed that flight as all the paperwork was not completed in time, and she was then booked on to the next flight, which she nearly missed. [9] Upon arrival back at the Gold Coast she spoke to the respondent and advised what had occurred. He offered to arrange for her to fly out the next day, but the applicant declined, as she believed she would arrive in Havana too late to go on the tour. [10] Ms Booy expressed her dissatisfaction with the service being provided by the travel agency, including the lateness of the travel documents and being given incorrect information about the use of a cash card in Cuba. Other Evidence [11] The applicant provided a number of statutory declarations from persons who were present when the applicant had conversations with Mr Palmer about the need for a visa and the documentation for an oxygen machine. RESPONDENT’S CASE [12] The term “visa” was somewhat of a misnomer. Under the Enhanced Security Travel Agreement (ESTA), permission to enter certain countries can be done on line. Ms La Booy had travelled to Mexico approximately two years earlier, and had obtained ESTA permission, which was current for two years. She was familiar with the process of obtaining the permission on line. It was not a complicated process. [13] When the arrangements for the trip were being discussed, Mr Palmer became aware that a medical specialist had supplied a letter about Ms Booy’s requirements for oxygen when travelling. The applicant indicated that the oxygen machine she had was “too big” and she was not going to tell the carrier about the oxygen requirement. He was concerned that 3 -- 3 of 6 -- ` she wanted to travel without oxygen. It was mentioned that there was oxygen on board the plane. [14] The applicant was not an inexperienced traveller; she was very aware of her oxygen requirements as she had only one lung. When the applicant went to Logan to collect the oxygen machine, he did his utmost to obtain the documentation, which would have permitted her to fly to LA and on to Havana with the oxygen machine. He said it took hours to complete. . [15] Ms Booy was denied the right to board the plane in Melbourne for LA on 20 February 2010 for reasons beyond the control of Travelworld. If Ms Booy had flown to LA the next day, she would have been able to join her tour group as it was spending two days in Havana before leaving. Other Evidence [16] An E-mail from VA Helpdesk dated 2 March 2010 in relation to the departure from Melbourne to LA on 20 February 2010 was produced by Mr Palmer. It states that Ms Booy was called over the Melbourne public address system several times prior to departure so that the check in staff could check the equipment and documentation. Ms Booy was the last to check in. [17] At check-in, she was unable to answer questions regarding her health and well being consistently. She was not able to produce any medical clearance to prove that she was able to fly and under what circumstances. Ms Booy told airline staff that she had no knowledge about the operation of the equipment should she need to use it. The crew would not be able to administer it to her. [18] Attempts were made to contact the travel agent and there was no response to the three messages left. The flight was then closed and Ms Booy was not permitted to board. FINDINGS AND CONSIDERATION [19] Ms Booy’s case is predicated essentially on two issues: (i) the respondent incorrectly advised her of the visa requirements associated with her travels and (ii) he did not advise her of the requirements for carrying oxygen on airlines and make the necessary arrangements. [20] The itinerary, which was provided by the respondent to the applicant, includes flight details, a document from “Exodus”, the tour operator outlining the itinerary for the trip, together with general information under the notation Trip Notes, provided by Peregrine Adventures. It contains general information about visas only and states that visa requirements and health information should be checked with the (travel) consultant. 4 -- 4 of 6 -- ` [21] The applicant’s evidence was that Mr Palmer advised her that visas were not necessary and she relied on that information to her detriment. Statutory declarations from witnesses to conversations between Mr Palmer and Ms Booy attest to the fact that Mr Palmer assured Ms Booy that it was not necessary to obtain visas. [21] It is not clear to me whether Mr Palmer was specific in conveying information about obtaining online visas at the airport or whether he understood from Ms Booy’s previous travels that she was aware that this was this case. Whilst Mr Palmer may not have been as forthright about the visa issue as he could have been, Ms Booy obtained the visas at the airport and her evidence is that it was a time consuming process. Any incorrect or lack of information about visas did not prevent her from taking the trip. [22] The second issue relates to the oxygen machine. I accept Mr Palmer’s evidence that Ms Booy had indicated to him that she was not proposing to take her own oxygen. The statutory declaration from Ms McNicol is to the effect that Mr Palmer indicated a certain casualness of approach when discussing the issue with the applicant. [23] I do not place a great deal of weight on Ms McNicol’s statement. If, as McNicol states, Ms Booy asked specifically what had to be done to prepare the paperwork associated with the carriage of the oxygen machine on the basis she intended taking oxygen with her, this is not reconcilable with Ms Booy’s evidence that she did not take oxygen with her and had not intended to advise the airline staff about her possible requirements for oxygen. [24] If Ms Booy made the decision to travel without oxygen, even on the basis that she thought she could use oxygen on the aircraft if necessary, it is difficult to see how the travel agent can be held responsible. In any event, whilst travel agents provide advice about a range of matters, ultimately it is the traveller’s responsibility to ensure that they have all necessary documentation to allow them to board a flight. Ms Booy decided not to take oxygen. When she got to the airport she reported a health problem and showed airport staff the doctor’s letter that alerted the airline staff to a possible requirement for oxygen. The events that followed, whilst distressing and exhausting for the applicant, are not of the respondent’s doing. [25] The applicant has a duty to mitigate her loss. She made the decision to return home without taking the trip. She was tired and had had an extremely frustrating 24 hours. She declined an offer to take the trip the following day, which would have allowed her to join the tour on which she was booked. Any loss suffered therefore was as a result of her actions and not that of the respondent. Whilst the respondent may have been tardy in the provision of travel documentation and not as specific as he could have been in discussions about visas and oxygen 5 -- 5 of 6 -- ` requirements, at the end of the day, the loss suffered was as a result of the applicant’s actions and not that of the respondent. [26] Accordingly, the application is dismissed. 6 -- 6 of 6 --