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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Milner & Anor v Carnival Plc (t/a Cunard)  EWCA Civ 389 (20 April 2010)
Cite as:  2 All ER (Comm) 397,  3 All ER 701,  PIQR Q3,  EWCA Civ 389
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
HIS HONOUR JUDGE SHAUN SPENCER QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE GOLDRING
| (1) Terence Milner
(2) Cynthia Mary Milner
|- and -
|Carnival PLC (trading as Cunard)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Christopher Lundie and Hayley McLorinan (instructed by Lester Aldridge LLP) for the appellant
Sarah Prager (instructed by Travlaw LLP) for the respondent
Hearing date: 3rd December 2009
Crown Copyright ©
Lord Justice Ward:
"When Samuel Cunard set out to deliver mail across the Atlantic 167 years ago, he little realised he was taking the first step towards a new standard of luxury travel. Since then, Cunard has become a byword for comfort, style, and the ultimate in effortless exploration generation after generation. Today, the legendary Cunard Experience continues to exceed your expectations - with all its accomplished hallmarks - from the very first moment you step aboard."
Setting out the "Cunard Grills Experience our most lavish expression of elegance", the brochure proclaimed:
"Wouldn't you love to savour the star treatment like screen idols and noble royals of yesteryear? Don't you deserve a taste of the high life? Welcome, then, to some of the most spacious and sumptuous suites at sea."
"Step aboard this classic Cunarder steeped in unmistakable Cunard heritage and with all the grace and glamour of her esteemed sisters. Queen Victoria debuts with an exciting flourish. In January 2008 she sets off to greet the globe on her Maiden World Cruise, writing the next exciting chapter of the Cunard legend over 106 unforgettable nights."
The "latest classic Cunarder" was described in these terms:
"Sleek, contemporary Queen Victoria embraces the most advanced technology and a host of luxurious innovations."
"The nature of the description in the brochure as to what the cruise was going to be like is such as reasonably to give to the Milners and to anyone else who was embarking on the cruise, the feeling that they were in for the experience of a lifetime."
Then he added laconically:
"It is the Milner's case that that is what they got, but not in the way they had bargained for."
"15. It seems to be the case, and it is as I understand his evidence accepted by Captain Hall, and I accept it myself that the difficulty with the noise was not simply plates flexing with the effects of the swell and turbulence of the sea. The fact is that some of the plates were bowed upwards, so as to be convex, and when the flexion caused the plates to move from convex to concave, this produced noise. Mr Milner was asked by myself in the witness box if he could do for me the noise, and it is difficult to put into words, but I am quite satisfied that what he was referring to was a loud bang which came out of the blue, and then there were bangs which were sequential and intermittent; the sort of bang that once you have heard it, you cannot really settle down after it because you never know whether another one will be coming afterwards."
"Mr Milner feels he is at the centre of this technical issue which starts in the bathroom area and travels all the way to the balcony side of the state room. The issue is getting worse as recently the sitting area is included in the vibration as this was not the case the first day and a half. Obviously, a structure problem, which needs to be addressed with the yard as per Mr Milner, he can no longer deal with the noise and vibration, having missed two nights of rest. He mentioned that his level of tolerance has come to an end. He will sleep in public areas if necessary. The lack of sleep is affecting Mrs Milner's chest problems and asthmatic episodes due to stress. Mr Milner almost called an emergency [doctor] last night, as he saw his wife getting worse, while the inhalers were no longer doing what was expected from them. Mr Milner feels really short-changed and demands a solution, or will go home in NYC."
"Same routine as yesterday. Getting very tired of the situation. Cindy getting more distressed by the day."
On the other hand his entry for the following day was:
"Got up at 4.30 am to witness sail into New York. Fantastic memorable day. Sail away of the three Queens truly fantastic."
"Thank you for the temporary move to suite 8090. Our days and nights have greatly improved. We appreciate the situation given to our problems with suite 7083 by Ruude Janssen [the purser] and yourself and it is essential, if we are to be moved back into that room, that we are given written assurances from you that the plate problem, which has affected our voyage so far, has been resolved and the nature of the work done to achieve this result. I am a technical person and understand the detailed aspects of such a process."
"Having only unpacked 50% of our belongings on the first night of embarkation at Southampton, and transferring that status to suite 8090 we remain in that semi-packed chaos from New York to Fort Lauderdale as Ruude said we were only in the suite temporarily for 2-3 nights. Not hearing to the contrary, we have assumed we can remain here at least until Los Angeles and have, therefore, fully unpacked for the first time on board this vessel."
Once it was clear they could stay there, Mr Milner wrote:
"This has had quite a settling effect on my wife, who continued to be quite distressed for long periods, not knowing how long we were staying."
The letter concluded:
"After nearly two weeks, life on board is beginning to get pleasurable. We are looking forward to enjoying what is a beautiful ship in the way we had hoped. Staff and food are excellent. I am not sure I can persuade my wife to go back to 7083 in view of the horrific experience we suffered with noise. The specific section could be as bad, or even worse, than the Atlantic for sea swell and we need the situation clarifying before we get to Los Angeles."
"We were reluctantly moved back to 7083 on 30th January. I have only done this to try to salvage some kind of holiday, but should the problem return, we will get off at the next convenient port."
"A The banging and floor plate flexing re-occurred last night in the three areas I have previously identified and were not repaired. It kept us awake from 2 am and was witnessed by Elle, the person on night duty.
B We have no confidence in this room and refuse to consider it for any further part of our trip.
C Thank you for the move to 8080, which we have been told is temporary until Hawaii.
D You repeated that your letter had set out the only options for us and unless we accepted 7030 we would have to disembark in Hawaii. I set out my reasons for rejecting this suite which still stands, so you leave us no alternative but to get off in Hawaii and try to salvage some kind of Holiday."
"At the point of disembarkation we were exhausted, suffering again from sleep deprivation and were both unwell. We could not believe the way in which we had been treated."
The judgment under appeal
"39. Mr Mason [who appeared for the claimants] takes the position that the amount which is appropriate for diminution in value is a figure of £8,500. That would be £4,250 each. His way of presenting this appears at paragraph 14 of his skeleton argument, which obviously represented his position in closing submissions also. He said this:
'The first 28 days of the cruise, which is what they got, on per diem calculation would be £17,317 ',
and in as much as a good part of cabin space indicates somewhere you can sleep, it is his submission that a 50% refund would be appropriate. The defendants submit that I really ought to keep this in proportion. There were, in reality, about 3 bad nights, namely the 2 nights coming out of Southampton before they were given 6083 as a sleeping cabin and that is 3 bad nights out of 28 nights.
40. So far as that is concerned, I think the claim for diminution is value is pitched too high and I think there is something in the point made by the defendants. And so, to reflect diminution in value, I award £2,500 each.
41. I now turn to the next aspect which is distress and disappointment. This is something which obviously caused stress to the parties. We have sleepless nights and we have various moves about the ship and there were some stress induced somatic effects as I have been told and as I am prepared to accept. If I refer, for example, to the diary and the bottom of page 170, the 23rd January:
'My bottom lip has broken out in ulcers. Never had this happened before. Not feeling good today. Cindy bad with chest breathing.'
and if I look at page 171:
'Lip now in a terrible state with ulcers; very swollen.'
And he went to see the doctor and the position is that the doctor thought this was a stress-related eruption.
42. I think I have stated enough of the various moves and events to set out what the experience was which was undergone by the Milners. So far as the Defence are concerned, they would say again that this is a matter which has to be kept in proportion. The defendants refer to the references which are made by the claimants to the excellence of the food, to the quality of the staff and to the fact that in relation to the journey from New York to Los Angeles, and from Los Angeles to Honolulu, what they got namely deck 8 cabins, represents an upgrade to what is known as 'Queen Class' in the cruise hierarchy.
43. The claimants put the case on the basis that the damages for distress and disappointment ought to be getting on for the full cost of the cruise and Mr Mason suggests an appropriate figure would be £50,000. That would be £25,000 each. I think the £50,000 is really far too high and I am disposed to award the claimants £7,500 each. Let me say that I regard that as a high figure and I take the view that it is about the ceiling of what I could award. But the fact is that where one is advertising a platinum quality product, then there have to be platinum quality damages if there are shortcomings.
44. So far as the wasted expenditure is concerned I am now dealing with the gowns Mrs Milner accepted in evidence, I think, that there is a question of fairness which arises. If the gowns cost £4,300 and she wants £4,300 and she has got the gowns, she did see as a reasonable person that that was scarcely a right state of affairs because she was getting the gowns for nothing. She did make a response to it, however, which I regarded as a fair one. She said that the gowns she bought, she bought so that she could wear them. She would wear them because she had an opportunity to wear them. How many times in Leeds, Harrogate, Weatherby or York would she be having an opportunity to get her formal gowns on? Certainly nothing like three evenings a week which would be the case on the cruise. And, to that extent, I think she makes a fair point and, in the light of her reasoning, I think there ought to be some award under this head and I award £2,000."
"The cabin in 7030 is more commodious. The fact that there is a shower, rather than a bath is something which I think most people could easily live with. The fact that the cabin was slightly forward of the mid-ships I would regard as something not to cavil at and the fact that the room was, in some respects, with the hand holding bars in the bathroom for instance, clearly designed for the use of disabled people is not something which I again I would have thought one could cavil at. It must be borne in mind that anything which is put in there for a disabled person is a bolt-on and does not diminish the comfort of the premises for those who are not disabled."
He then asked whether that alternative accommodation was rejected for good reason. In deciding that, the judge said:
"I should factor in something of the subjective element and this involves the attitude of Mr and Mrs Milner to what was on offer. I do agree that being mid-ship was important to them at the time they booked. Since the mid-ship area seemed to be the one most in the frame for the flexing, whether it would be so by the time one got to Honolulu is a question. So far as the space for gowns is concerned, I am sure that with good will, which I have no doubt would have been forthcoming, that could have been accommodated. So far as the shower, not a bath, is concerned, I do not see that even factoring in a subjective element that could be a big problem and the fact that the room was suitable for disabled occupancy, I do not see again even factoring in subjective elements being a good reason for turning it down. I take the view that suitable alternative arrangements were provided and I do not regard Mr and Mrs Milner's reasons for not accepting them as being good reasons."
"It is also clear to me that he is a good negotiator and I think that what happened is he took the view that if he stood his ground as they approached Los Angeles, Mr Howie would blink first and come up with something which was acceptable to Mr and Mrs Milner. I think if occupancy levels had been adequate, Mr Howie would indeed have blinked first and come up with something, but as it happened, the occupancy levels were such that he had nothing to offer them apart from 7030 and I regard the objections which were put to that as being too exacting, even factoring the subjective element, and there were no good reasons for not accepting. In the circumstances I do not allow the cost of the journey on the Queen Elizabeth."
The measure of damages
"But a money award is all that is possible. It is the best that can be done."
Doing the best one can is hardly the most enlightening guidance for those who have to perform the task, but I am not sure I can improve upon it.
"Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled to compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation."
" for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages. That is purely sentimental and not a case where the word inconvenience as I here use it would apply."
This principle was applied in Stedman v Swan's Tours (1951) 95 Sol Jo 727 where instead of enjoying superior rooms with a sea view in a first class hotel, the holiday party found that the rooms reserved for them were very inferior and had no sea view. They were unable to obtain accommodation elsewhere, and in the result the whole holiday was completely spoilt. Singleton L.J. said that:
"Damages could be recovered for appreciable inconvenience and discomfort caused by a breach of contract. It might be difficult to assess the amount to be awarded, but it was no more difficult than to assess the amount to be given for pain and suffering in a case of personal injury."
In Farley v Skinner  UKHL 49  2 AC 732, the plaintiff was entitled to damages assessed at £10,000 for the significant interference with the enjoyment of his property cause by noise from aircraft flying over his land.
"In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenity. Take the present case. Mr Jarvis has only a fortnight's holiday in the year. He books it far ahead and looks forward to it all that time. He ought to be compensated for the loss of it.
Here Mr Jarvis's fortnight's winter holiday has been a grave disappointment. It is true that he was conveyed to Switzerland and had meals and bed in the hotel. But that is not what he went for. He went to enjoy himself with all the facilities which the defendant said he would have. He is entitled to damages for the lack of those facilities and for his loss of enjoyment."
Edmund Davies L.J. said at p. 239:
"The court is entitled, and indeed bound, to contrast the overall quality of the holiday so enticingly promised with that which the defendant in fact provided.
When a man has paid for and properly expects an invigorating and amusing holiday and, through no fault of his, returns home dejected because his expectations have been largely unfulfilled in my judgment it would be quite wrong to say his disappointment must find no reflection in the damages to be awarded."
That was a holiday which cost £63.45. The Court of Appeal increased his damages from £31.72 (one half of the cost of the holiday) to £125.
"In Jarvis it was held by this Court that damages for the loss of a holiday may include not only the difference in value between what was promised and what was obtained but also damages for mental distress, inconvenience, upset, disappointment and frustration caused by the loss of the holiday."
At p. 1473, he said:
"People look forward to a holiday. They expect the promises to be fulfilled. When it fails, they are greatly disappointed and upset. It is difficult to assess in terms of money; but it is the task of the judges to do the best they can. I see no reason to interfere with the total award of £1100."
"I wholly fail to understand how the learned judge was able to extract anything from either of those case which prevented him from awarding the higher scale of damages which he said he was minded to award."
As Cumming-Bruce L.J. said:
"Contracts for holidays vary on their facts very greatly. The facilities offered by the tour company vary enormously from case to case. It would be a grave mistake to look at the facts in, for example, the Jackson case or the Jarvis case and compare those facts with the facts in another case as a means of establishing the measure of damages."
"44. In my opinion the claimant is entitled to a sum representing diminution in value of the holiday. In assessing this sum I take into account that this was on any view a very expensive holiday. As such, the claimant and her party were entitled to expect very high standards. As I have found, what she was provided with fell well below these high standards. Doing the best I can, and taking into account what was provided, the location and the time of year, I assess damages under this head in the sum of £22,000 as will be obvious, I calculate this on the basis of a deduction of some 25% from the contract price.
45. In my opinion she is entitled to a sum representing loss of enjoyment. In this respect, I take into account that this was designed to be a very luxurious holiday, coming after her, and her family's, difficult year. This is, however, not the case of a family unused to holidays. To be able to afford the cost of such a holiday indicates a degree of financial resources from which I infer that that the claimant and her family are used to some of the more expensive things in life, including regular holidays. For that reason, in my judgment, the sum for the loss of the enjoyment must be modest; I assess it in the sum of £3,000."
I am not sure that the loss of enjoyment must necessarily always be more modest for the wealthy than the poor: the level of distress is surely measured by the extent of the failure to meet reasonable expectations and a luxury holiday of a lifetime for the rich can be as spoilt for him as the more modest holiday of a lifetime for the poor, unless of course the poor man will never be able to afford another whilst the rich man can ameliorate his disappointment by immediately booking another jaunt to make up for his loss. It is a question of fact and degree in each case.
Assessing the quantum of damages for inconvenience and distress
"Non-economic loss is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on idiosyncrasies of the assessor, whether jury or judge, the figure must be 'a conventional figure derived from experience and from awards in comparable cases'."
In the area of conventional awards, comparability matters. Where, therefore, does one find the comparables?
"The factors to be taken into account in valuing claims of this nature are as follows:
(i) the injured person's ability to cope with life and work;
(ii) the effect on the injured person's relationships with family, friends and those with whom he or she comes into contact;
(iii) the extent to which treatment would be successful for future vulnerability."
Awards are divided into cases where the problems associated with those factors are severe, moderately severe, moderate and minor. The moderately severe category covers cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment and the bracket there is between £12,250 and £35,000. In the moderate category, whilst there may have been the sort of problems associated with factors (i) to (iv) above, there will have been a marked improvement by trial and the prognosis will be good. The range of award there is from £3,750 to £12,250. Minor awards will take into consideration the length of the period of disability and the extent to which daily activities and sleep were affected. The bracket there is £1,000 to £3,750. If the victim has suffered post-traumatic stress which can cause intense fear, helplessness and horror affecting basic bodily functions, temper, concentration and sleeping, a severe case merits £40,000 to £64,250, the moderately severe £14,825 to £37,000, the moderate case, where the injured person will have largely recovered and any continuing ill-effects will not be grossly disabling, commands £5,250 to £14,825 and for minor cases, where a virtually full recovery will have been made within one to two years with only minor symptoms persisting over a longer period, the conventional award is £2,500 to £5,250.
"28. I have to say that the size of the award [£10,000] appears to be at the very top end of what could possibly be regarded as appropriate damages. Like Bingham LJ in Watts v Morrow  1 WLR 1421, 1445H, I consider that awards in this area should be restrained and modest. It is important that logical and beneficial developments in this corner of the law should not contribute to the creation of a society bent on litigation."
The application of these principles to the facts of this case
"3. As this was such a special trip for us, a one-off occasion, I had spent a great deal of time selecting these outfits which were to be my formalwear during the four month long cruise we were about to depart on. It was the first time we were to travel Grill Class with Cunard.
4. I had purchased approximately twenty-one dresses formal evening wear outfits, which were necessary for the large number of formal events we were to attend during the extended cruise. There were going to be approximately four formal evenings per week over a three and half month period. These dresses were purchased at a cost of approximately £4,300 so an awful lot of time and expense had gone into choosing these special outfits and I was really looking forward to wearing them.
5. They were very formal dresses, the kind which I do not have occasion to wear when I am at home in Leeds, so I was excited to have the opportunity to wear all these dresses on this very special cruise."
"The nature of the description in the brochure as to what the cruise was going to be like is such as reasonably to give to the Milners the feeling that they were in for the experience of a lifetime."
"6th January Sail away
Sleep was impossible as the noise reverberated around the cabin and vibrations could be felt in the bed. By 4 am we were in a terrible state due to this torture and we went to the lido for some coffee and respite from the noise. There we met a young couple who were staying in the cabin above us who had the same nightmare situation of noise and could not sleep.
Although we were exceptionally tired we went to dinner and had wine also and went to bed late (1 am) in an effort to sleep, which we had not done since we boarded the ship. The sounds were horrendous. We tried to cope but my wife broke down and was crying uncontrollably with exhaustion, I thought I would have to ring for a doctor. The noise was unbearable and torturous and we were in a terrible state of distress.
When we met Messrs Howie and Jansen I emphasised the fact we had not been able to sleep for two nights and days and that the plate flexing noise was getting worse as the weather deteriorated. I was also very concerned at my wife's deteriorating health due to sleep deprivation and an asthma type of stress attack she had suffered during the night due to this torturous situation. My wife became stressed during this discussion and Mr Howie seeing the obvious state she was in asked if she would like to see a doctor which she declined. She carried medication and inhalers with her.
Had a good night's sleep in 6083 but the sea was rougher and we could not stop in 7083 during the day for any length of time due to the excess of noise.
Tried to rest in 7083 in the afternoon but could not for the noise, even in calmer sea at lower speed.
Same routine as yesterday. Getting very tired of the situation. Cindy getting more distressed by the day.
We moved into suite 8090. Suite is excellent but we feel like gypsies moving about. Only in for 2-3 days so we cannot empty our cases till we have a permanent home. It is very frustrating when you come to get dressed in the evening finding out where various items are. Had a good night's sleep.
Breakfast in our room, slow pleasant start to the day. Problem is you constantly have the uncertainty hanging over you in this situation which tends to restrict your desire to get involved in regular events. Cindy got upset again and I told her to hang in.
Broken sleep not due to current suite or any noise but because of uncertainty of the ongoing situation. We need our minds putting to rest.
Cindy not good today, getting quite depressed, does not want to go out of the room. We just seem to limp from day to day, worst thing is the uncertainty and we are not being kept in the picture as to what is happening.
Similar day to yesterday. Cindy much better.
Good night's sleep. I am feeling poorly; I think I have a liver infection.
My bottom lip has broken out in ulcers. I have never had this before. Not feeling good today. Cindy bad with chest breathing.
Lip now in terrible state with ulcers, very swollen, need to see the doctor as it is not responding to the cold sore/ulcer cream I am using.
Doctor visits His diagnosis was it must be stress-related."
[As I have already set out at  above the judge accepted that in paragraph 41 of his judgment.]
Moved back to 7083. Stayed on board to supervise move. When Cindy returned we agreed to be positive and look upon this as the first day of our cruise. Had a good dinner with wine and retired about 11.30 pm. Cabin creaked much worse than before but not flexing.
Exactly as I predicted. the banging, flexing and vibrations reverberated in the areas which had not been strengthened, i.e. under the bed, at the foot of the bed and in the seating area. We were awakened with loud banging around 2 am. Cindy was distressed and in tears.
Both feeling pretty miserable as we are now at the end of the road regarding the voyage we have been looking forward to for over 18 months. The time we have had on this ship has been a complete waste of time and has affected our health greatly.
To say we got off the ship stunned and feeling isolated and in shock is an understatement. We had not realised what the QV experience over the past few weeks had taken out of us."
"37. Looking back we should not have stayed in Hawaii for that length of time. We did not receive any enjoyment from our stay, we were very depressed and struggling to make decisions or have any clarity of thought. We were in no state to fly and simply began to recuperate in the hotel we actually did not leave the hotel for approximately 2 weeks when we first arrived in Hawaii. It was hard to decide what to do after we had left the cruise.
39. The ruined cruise was a terrible, stressful experience, and the ill-effects were felt by both of us long after returning home. It was supposed to be a fantastic experience that we had looked forward to for so long and had spent so much money on. I still cannot believe the way we were treated by Cunard."
That statement was dated 30th December 2008.
"7. I have never worn a single one of those dresses or outfits during the time that has passed since the cruise. The emotional toll that the cruise took on me was so great that I find it too hard to be reminded of that time.
8. I have had one formal event to go to in the time that has passed since we left the cruise. I went to look at the dresses that I had purchased to see if any were suitable for the occasion. When I retrieved the dresses from where they had been stored and began to look through them, I broke down in tears. The memories were simply too upsetting. All of this expensive clothing was wasted and I will not have the chance to wear it all again, nor would I want to."
Lord Justice Richards:
Lord Justice Goldring: