Kate and Brent Smyth, an Australian couple in their late 50’s, dreamed of touring Canada. Brentresearched online travel packages. ROCKY TOURS wane website which had a 20 day coach, train and river tour of Canada. As Brent was reading the details of the tour a small pop up box popped up in theright hand corner of her screen, which stated ‘live chat, this is Melody, can I help you?’ Brent stated that he was looking ahe 20-day coach, train and river tour. Brent told Melody that he and his wife needed a tour that was not too strenuous and his wife had some difficulty walking. Brent also told Melody that hewas concerned about the river part of the tour because his wife Kate cannot swim. Melody told Brent that the river part of the tour was a leisurely 8-hour cruise down a river in Canada and that it would surely be suitable for both Kate and Brent. Brent was satisfied with this reassurance from Melody and booked the tour for them both paying a total sum of $12,000 for the two of them. Brent ticked the box online, agreeing to ROCKY TOURS terms and conditions (however he did not read them). The terms and conditions state
that:
‘ROCKY TOURS are not liable in any way whatsoever for any death, personal loss or injury sustained at any time whilst on their tours.’ The terms and conditions further state that‘the Australian Consumer Law does not apply to any tours purchased through ROCKYTOURS.
ROCKY TOURS sent Brent a brief itinerary which detailed which days Brent and Kate would be on the train, on the bus and on the river cruise. Kate and Brent were having a fabulous time on their holidayuntil day nine (9), which was the river cruise. Their tour guides told them that they had get into rafts an travel down the rapids. Day nine (9) was a total of eight (8) hours, rafting in rapids. This was not includedin the itinerary, nor advised by Melody to Brent prior to booking the tour. Brent told the tour guides thatKate could not swim and that they did not want to go in the rafts. Brent and Kate were told they had to a they were in the wilderness and it was the only way to get down the river. Unfortunately Brent and Kate’sraft was overturned in the churning rapids. Kate tried to stay afloat in the river however of course shecould not swim and drowned.
Brent is devastated and wants to sue ROCKY TOURS. ROCKY TOURS say they are not liable and are relying on their terms and conditions which Brent accepted on their website.
Discuss Brent’s legal rights under Australian Consumer Law?