FEDERAL COURT OF AUSTRALIA

Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280

ORDERS

THE COURT ORDERS THAT:

1.    The matter be listed for the making of final orders and further case management at 9.30am on 10 November 2023, or at such other time and date as the parties may arrange with the Associate to Stewart J.

2.    The parties email agreed or competing orders to give effect to the reasons for judgment published today, including with regard to common questions or the process for the making of orders on common questions, to the Associate to Stewart J by noon on 9 November 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

A.    INTRODUCTION

1    On 8 March 2020, shortly before midnight, the passenger liner Ruby Princess cast off from the Ocean Passenger Terminal at Circular Quay in Sydney. It made its way through the heads of Port Jackson and towards New Zealand. It had on board about 2,671 passengers and 1,146 crew members for a 13-day cruise to a number of ports in New Zealand and back to Sydney. At that time, Australia was bracing itself for the novel coronavirus pandemic which had already had a devastating impact in other parts of the world, disrupting daily life and bringing illness and death. What lay ahead for Australia was unknown, and feared.

2    Amongst the passengers were Susan and Henry Karpik from Figtree, a tranquil suburb of Wollongong in New South Wales. Mr Karpik fell ill during the voyage to the disease caused by the virus, although whether he contracted the disease on board or before boarding is in dispute. He later nearly died – he was intubated, ventilated and placed into an induced coma, and spent nearly two months in hospital. Mrs Karpik says that she also contracted the disease – that being in dispute, although her symptoms were mercifully relatively minor. Mrs Karpik endured witnessing the suffering of her husband, without being able to be by his bedside for a long period because she was in isolation herself after the voyage. She says that the impact on her mental health has been significant. Many other passengers fell ill and some later died. The cruise itinerary was abandoned on 15 March 2020 with the ship returning to Sydney three days early.

3    Arising out of those broadly sketched events, Mrs Karpik, as lead applicant, commenced a representative proceeding against the owner and operators of the vessel in which she seeks damages for personal injuries and distress and disappointment of more than $300,000. The group members on whose behalf the proceeding is brought include passenger group members, being passengers on the voyage who are not deceased, executor group members, being executors of passengers who died from having contracted coronavirus on the voyage, and close family group members, being close family members of passengers on the voyage who died or became severely ill from contracting coronavirus on the voyage. The matter proceeded to trial on only Mrs Karpik’s claim on the basis that a number of common issues of fact and law would, in that process, also be decided in respect of all group members.

4    Mrs Karpik’s causes of action, as ultimately advanced, noting that certain pleaded parts of the case were not pressed in closing submissions, are the following.

5    First, she relies on s 61 of the Australian Consumer Law (ACL, being Sch 2 of the Competition and Consumer Act 2010 (Cth) (CCA)) by which, she says, the respondents guaranteed that the services that they provided to Mrs Karpik and other passengers, being the services necessary for the cruise, would be reasonably fit for the intended purpose of a safe, relaxing and pleasurable holiday from which they would come back feeling refreshed and reinvigorated. She says that the respondents also guaranteed that the services would be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result, namely a safe, relaxing and pleasurable holiday from which she and the other passengers would come back feeling refreshed and reinvigorated.

6    Mrs Karpik says that the services supplied by the respondents failed to comply with those guarantees in a number of respects and were nowhere near reasonably fit for the intended purpose, or as might reasonably be expected to achieve the desired result. She says that the purpose was not achieved. Mrs Karpik says that far from having a safe, relaxing and pleasurable holiday from which she would come back feeling refreshed and reinvigorated:

(1)    Mr Karpik contracted COVID-19 early on in the voyage;

(2)    Mrs Karpik spent a considerable period of time caring for her husband on the voyage, particularly during the latter part of the cruise when his condition significantly worsened;

(3)    by 15 March 2020, there was an outbreak of respiratory illness on board “with everyone febrile”;

(4)    ultimately, many hundreds of passengers and crew contracted COVID-19 and a significant number of passengers died;

(5)    she was, in addition to her husband, one of the passengers who contracted COVID-19;

(6)    Mr Karpik nearly died from COVID-19 so, as well as dealing with her own illness, Mrs Karpik had to endure witnessing the suffering of her husband, without being able to be by his bedside for a long period because she was in isolation herself after the voyage.

7    Mrs Karpik says that it is not necessary, in the absence of any suggestion that the failure to achieve the purpose was unconnected with the services, to analyse the deficiencies in the services. However, to the extent that that may be necessary or helpful, on behalf of Mrs Karpik and the other group members it is contended that the services were deficient in particular respects. For reasons that are not clear to me, those alleged deficiencies are not the same as the respects in which it is alleged the respondents were negligent, to which I will come. Be that as it may, the particular deficiencies that the applicant relies on in respect of failure to comply with the statutory purpose and result guarantees are these:

(1)    Pre-embarkation screening of passengers and crew for the voyage was deficient in that:

(a)    There were large numbers of passengers who had travelled from jurisdictions with large numbers of confirmed cases of COVID-19 who were not refused to board and were not subject to any further screening;

(b)    Passengers who were symptomatic, but had not travelled from or through one of the countries identified on the respondents’ pre-embarkation health declaration, were permitted to board and were not subject to any additional screening;

(c)    The additional screening of passengers who had travelled from or through the identified countries was ineffective because COVID-19 could be transmitted by persons who are asymptomatic or pre-symptomatic;

(d)    The passports of passengers and crew were not checked to ensure that the information that they provided in their health declarations was correct; and

(e)    There were no temperature checks of passengers and crew, which checks would have detected the most common symptom for COVID-19.

(2)    Hand hygiene: The measures adopted by the respondents to improve hygiene by installing additional hand sanitising stations and reducing the use of common utensils were ineffective to reduce the transmission of COVID-19 because fomite transmission was a minor contributor to transmission.

(3)    Cleaning: For the same reason, the measures adopted to increase the level of cleaning on-board by, for example, increasing the concentration of disinfectant, were ineffective to reduce transmission.

8    Mrs Karpik submits that it is highly doubtful whether there could have been a safe cruise departing on 8 March 2020 with the result that the cruise should have been cancelled and the passengers refunded their fares. In that regard, she says the following:

(1)    there is an increased risk of an outbreak of a respiratory virus like COVID-19 on board cruise ships;

(2)    the respondents were well aware of the principal characteristics of coronavirus well before 8 March 2020;

(3)    the respondents had already experienced two coronavirus outbreaks on cruise ships operated by them, the Diamond Princess and the Grand Princess, the consequences of which were catastrophic;

(4)    the possibility of a further outbreak, including on the Ruby Princess, was very real;

(5)    the respondents offered all passengers departing on cruises leaving on 9 March 2020 and thereafter a full refund or credit because of the risks of coronavirus, yet they made no such offer in respect of the Ruby Princess cruise in question;

(6)    the circumstances of the immediately preceding cruise of the Ruby Princess were such as to create a heightened risk;

(7)    when the Ruby Princess departed on the voyage in question, the respondents knew that there were insufficient supplies of crucial medical equipment on board – particularly face masks – to deal with any coronavirus outbreak; and

(8)    on 13 March 2020, the respondents announced a decision to cancel all their cruises worldwide but have offered no explanation of their decision not to cancel the cruise in question which departed on 8 March 2020.

9    Secondly, Mrs Karpik contends that the respondents contravened the prohibition on misleading or deceptive conduct in s 18 of the ACL (there had also been reliance on s 29(1)(b) but that was not pressed in closing submissions). She relies on the respondents’ promotional and marketing material which advertised the cruise under the trademark “come back new”, an email to passengers that reiterated a commitment to safety including by implementing increased monitoring, screening and sanitation protocols to protect the health of guests, and that passengers were invited to board the ship without any accompanying health warning from the respondents. She says that that conduct gave rise to “safe to board”, “protection”, “best practices” and “pleasurable cruise” representations which were misleading or deceptive, or likely to mislead or deceive, contrary to ACL s 18.

10    Thirdly, in reliance on s 60 of the ACL which guarantees that certain services are rendered with due skill and care, and the tort of negligence, Mrs Karpik says that the respondents owed her a duty of care to take reasonable precautions to protect her from illness and from suffering mental harm on account of her husband’s illness. She says that the reasonable precautions that a person in the respondents’ position would have taken are the following:

(1)    cancel the cruise;

(2)    alternatively:

(a)    warn passengers that the risk of contracting COVID-19 on the cruise was heightened as compared to the community generally and to cruise ships generally;

(b)    screen passengers and crew for relevant symptoms and not permit travellers with such symptoms to board regardless of what countries they had recently travelled from or through;

(c)    reduce the number of passengers on board and take steps to ensure that appropriate physical distancing was observed;

(d)    isolate guests and crew members with relevant symptoms for 14 days and isolate their roommates for 14 days in separate cabins;

(e)    maintain sufficient medical supplies onboard, and in particular face masks so that medical staff, symptomatic passengers and their close contacts could be provided with face masks;

(f)    keep up-to-date with and implement all relevant guidelines and protocols; and

(g)    consistent with those guidelines, isolate and quarantine passengers and crew who were experiencing symptoms that were consistent with COVID-19; or

(3)    further alternatively, warn passengers that the risk of contracting COVID-19 on the cruise was heightened as compared to the community generally and to cruise ships generally and that the reasonable precautions set out in (2)(b)-(g) could or would not be implemented.

11    Broadly stated, the respondents contend that Mr Karpik did not contract COVID-19 on board and that Mrs Karpik never contracted COVID-19 at all. On the s 61 claims, they say that the fundamental reason why Mrs Karpik’s case fails is that no purpose or desired result was ever communicated to the respondents, but that their services were in any event not relevantly deficient. On the s 18 case, they say that the communications relied upon by Mrs Karpik could not be reasonably interpreted as giving rise to the specific representations pleaded. On the negligence case, they deny that they owed passengers a duty of care that extends to protecting against the risk of contracting COVID-19 and say that, even if they did, they did not breach their duty of care essentially because they complied with all relevant guidelines of various peak health bodies.

12    This case generated a substantial volume of evidence. For ease of future reference, I have included document identity references to the evidence in square brackets in these reasons for judgment. The references do not form part of the reasons for judgment. They are not exhaustive of the evidence that I have considered in relation to, or that is supportive of, the findings to which they relate. I mention also that there are colour graphics in these reasons for judgment that will make limited sense in black and white, so they are best read in colour.

B.    THE FACTS

B.1    The applicant

13    Mrs Karpik was 69 years of age and had been married to Mr Karpik for nearly 50 years at the time of the cruise. She had retired from nursing but continued to work part-time as an official visitor under the Mental Health Act 2007 (NSW).

14    Mr Karpik, a retired police officer, was 72 years of age. He was sight-impaired to such a degree that he is described as “legally blind.”

15    Mr and Mrs Karpik both gave evidence. Mrs Karpik also relies on the evidence of an additional seven lay witnesses who were all fellow passengers on RU2007, her treating psychiatrist, Dr McMahon, and six expert witnesses. I will identify the expert witnesses in section B.3 below. The lay witnesses gave evidence of their experiences on the cruise. Several of them were cross-examined.

B.2    The respondents

16    At all material times, the first respondent, Carnival plc, was incorporated in the United Kingdom. It was also a registered foreign company in Australia and carried on business in Australia with a registered office in New South Wales. It was the time charterer of the Ruby Princess. [CRT.500.004.0001 [3]]

17    Carnival traded as “Princess Cruises” and “Carnival Australia.” It employed shore-based personnel in Sydney who were involved in, amongst other things, managing the arrival and departure of the Ruby Princess and issuing instructions about the conduct of the voyage. Princess Cruises, P&O Australia, Holland America Line and Seabourn are all brands of the Holland America Group (HA Group).

18    The second respondent, Princess Cruise Lines Ltd (PCL), was incorporated in Bermuda. It owned and operated the Ruby Princess, as well as other passenger liners which feature in what follows, including the Diamond Princess and the Grand Princess. [CRT.500.004.0001 [4]] The Ruby Princess was time chartered by PCL as owner to Carnival as charterer for the period from 23 October 2019 to 2 May 2020.

19    Although the respondents foreshadowed in opening that they would urge the Court to draw a distinction between Carnival and PCL as reflected in their pleaded defence, no such distinction was drawn in closing either in writing or orally. Indeed, it is part of the agreed facts that Mrs Karpik contracted with “the respondents.” [JNT.002.001.0001 [3]] Accordingly, save where it is necessary to distinguish between Carnival and PCL, they are referred to hereunder simply as the respondents.

20    The Ruby Princess is a large, modern, ocean-going cruise ship. It has a range of indoor and outdoor venues, including shops, restaurants, a gymnasium, a theatre, a casino, cafes and bars, an outdoor cinema, swimming pools, an outdoor sports court and a mini golf course. The vessel is 290m in length, has a gross tonnage of 113,561mt, was launched in 2008, has 17 decks and is flagged in Bermuda. [LAY_SKA.003.001.0047 p 51]

21    Immediately preceding the voyage at the heart of this case, the Ruby Princess undertook a similar voyage from Sydney to New Zealand and back to Sydney. The voyage is referred to as RU2006. It ended in Sydney early on 8 March 2020. On that day, the passengers from that voyage disembarked and the passengers for the next voyage, referred to as RU2007, embarked.

22    On 15 March 2020, the Australian Government announced that from 16 March 2020 it would deny entry to cruise ships that had left foreign ports, but that there would be an exception for international cruise ships that had already departed their last foreign port and were headed to Australia prior to that time. For that reason, RU2007 was cut short and the Ruby Princess headed directly for Sydney, arriving very early on 19 March 2020. [CAU.001.014.4906]

23    The respondents relied on the evidence of 16 lay witnesses who were all from amongst the hotel crew on the vessel on RU2007. The highest ranking amongst them was Charles Arnoldus Verwaal, the Hotel General Manager. Mr Verwaal explained that he was the second most senior crew member on board after the Captain and equal in rank to the Chief Engineer and the Staff Captain. His responsibilities were confined to the hotel. He was responsible for operations and maintenance of the hotel through the management of six hotel departments, each led by a head of department who reported directly to him. Those departments were Entertainment, Food and Beverage, Housekeeping/Accommodation, Customer Services, Medical and Sanitation. [LAY_RES.001.001.0342 [14-15]]

24    The heads of the Housekeeping/Accommodation and Customer Services departments, Artur Manuel Ferreira and Loren Kerri Budd respectively, also gave evidence. Like Mr Verwaal, they were in their roles on both RU2006 and RU2007. None of the other department heads gave evidence, and no one from the Medical or Sanitation departments gave evidence. The other witnesses were from lower levels within the Food and Beverage and Housekeeping/Accommodation departments, and one was the Crew Manager. No shore-side personnel of either respondent gave evidence.

25    The result is that there was no witness evidence on a number of important issues. Those include the circumstances around and reasons for the respondents’ decision, first, on or about 5 March 2020 to offer full refunds on all cruises worldwide departing from 9 March 2020 and not, say, 8 March, and, second, on or about 13 March 2020 to suspend all cruises worldwide for an initial period of 60 days. They also include the likely burden on the respondents had they taken various precautions which the applicant alleges that they should have taken, for example, cancelling the cruise, conducting temperature screening of all passengers and crew before boarding, imposing a requirement of physical distancing between people where possible on board the vessel and isolating passengers and crew who presented with acute respiratory infection (ARI) and/or influenza-like illness (ILI) (each of which is referred to as an acute respiratory disease (ARD)). The applicant asks the Court to draw certain inferences from these gaps in the respondents’ evidence. I will deal with those at the appropriate places in canvassing the various issues below.

B.3    The experts

26    The parties relied on the evidence of a number of expert witnesses. It is convenient to introduce them, and which party called them at the outset.

27    The expert witnesses relied on by the applicant, and their respective fields of expertise, are as follows:

(1)    Dr Enrico Parmegiani – Dr Parmegiani is a consultant psychiatrist. He holds a Bachelor of Medicine and a Bachelor of Surgery (Honours) from the University of Sydney, as well as a Diploma of Forensic Psychiatry from the NSW Institute of Psychiatry. Dr Parmegiani became a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1999 and since that time has consistently practiced in the field of psychiatry. At the time of trial, Dr Parmegiani worked in private practice as a consultant psychiatrist and independent medical examiner and was a Psychiatrist Member of the NSW Mental Health Review Tribunal and a Personal Injury Commission Medical Assessor.

(2)    Dr Joseph Herrera – Dr Herrera is a medical physician specialising in the field of physical medicine and rehabilitation. He holds a Bachelor of Science from Rutgers University and a medical degree from Rowan University School of Osteopathic Medicine. Dr Herrera is certified by the American Board of Physical Medicine and Rehabilitation and has been employed for over twenty years as a medical practitioner and academic in that field. At the time of trial, Dr Herrera was System Chair of Physical Medicine and Rehabilitation within the Department of Rehabilitation and Human Performance and the Lucy G Moses Professor at the Icahn School of Medicine at Mount Sinai, New York, and was a physician at the Mount Sinai Center for Post Covid Care.

(3)    Professor Joacim Rocklöv – Professor Rocklöv is an academic epidemiologist specialising in infectious diseases and, in particular, epidemiological analysis and modelling. He holds a PhD in Occupational and Environmental Medicine, a Master of Science in Mathematical Studies and a Bachelor of Science in Mathematics from Umeå University, Sweden. Professor Rocklöv’s background is in statistics, but he has 15 years of exclusive experience in epidemiology. At the time of trial, Professor Rocklöv was a Professor of Epidemiology and Global Health at Heidelberg University, Germany, and a guest Professor at Umeå University.

(4)    Professor Annelies Wilder-Smith – Professor Wilder-Smith is a medical academic with particular expertise in emerging viral diseases, travel and tropical medicine, international health and public health. She holds a PhD in Infectious Diseases and Tropical Medicine from the University of Amsterdam, a Master in International Health from Curtin University, a Doctor of Medicine from the University of Heidelberg, a Diploma in Tropical Medicine and Hygiene from the London School of Tropical Medicine and various specialist accreditations in the fields of public health, tropical medicine, travel medicine and infectious diseases. At the time of trial, Professor Wilder-Smith was a Professor of Emerging Infectious Diseases at the London School of Hygiene and Tropical Medicine and an Adjunct Professor at the Institute of Social and Preventive Medicine at the University of Bern, Switzerland.

(5)    Professor Edward Holmes – Professor Holmes is an academic of over 30 years’ experience and a specialist in the fields of virology, microbiology, genomics, genomic/molecular epidemiology and evolutionary biology, in particular in phylogenetics. He holds a Doctorate in Zoology from the University of Cambridge and a Bachelor of Science in Anthropology from the University of London. Professor Holmes was the first person globally to share and make public the genome sequence of SARS-CoV-2. At the time of trial, Professor Holmes was a Professor of Biology and Medicine at the University of Sydney and an Australian Research Council Australian Laureate Fellow.

(6)    Professor Alison Kesson – Professor Kesson is a virologist, microbiologist and infectious diseases physician. She holds a PhD from the Australian National University and a Bachelor of Medicine and Surgery from the University of Sydney. At the time of trial, Professor Kesson was Head of Pathology and a physician in the Department of Infectious Diseases and Microbiology at the Children’s Hospital at Westmead and a Conjoint Professor in Child and Adolescent Health in the Sydney Institute for Infectious Diseases at the University of Sydney.

28    The expert witnesses relied on by the respondents, and their respective fields of expertise, are as follows:

(1)    Associate Professor Hassan Vally – Associate Professor Vally is an applied epidemiologist and academic specialising in communicable diseases epidemiology with particular expertise in the analysis and interpretation of health data and the computation and communication of risk. At the time of trial, Associate Professor Vally was an Associate Professor at the School of Health and Social Development at Deakin University. Associate Professor Vally co-authored a report with Professors McCaw and Bennett, and the three of them participated in some of the joint reports with the applicant’s experts. However, of the three of them, only Professor Bennett was cross-examined on the basis that the co-authored report was to be taken as authored by her and the respondents would advance no point that Associate Professor Vally and Professor McCaw had not been cross-examined. (T336:35.)

(2)    Professor James McCaw – Professor McCaw is a mathematical biologist and epidemiologist with a particular focus on infectious disease dynamics. At the time of trial, he was a Professor of Mathematical Biology at the Melbourne School of Population and Global Health and the School of Mathematics and Statistics, and Unit Head (Modelling and Simulation) at the Centre for Epidemiology and Biostatistics at the University of Melbourne. As mentioned, Professor McCaw was not cross-examined on the same basis that Associate Professor Vally was not cross-examined.

(3)    Dr Anthony Samuels – Dr Samuels is a consultant psychiatrist. He holds a Bachelor of Medicine and Surgery and a Master of Criminology and is a foundation member of the Royal Australian and New Zealand College of Psychiatrists Faculty of Forensic Psychiatry. Dr Samuels has more than 20 years’ professional experience in the field of psychiatry and, at the time of trial, was engaged in private practice and was an Adjunct Associate Professor at the School of Psychiatry at the University of New South Wales.

(4)    Associate Professor Laith Yakob – Associate Professor Yakob is an infectious diseases epidemiologist. He holds a PhD in Mathematical Modelling from the University of Oxford, a Master of Science in Modern Epidemiology from the Imperial College, London and a Bachelor of Science in Parasitology from the University of Glasgow. Much of Associate Professor Yakob’s current research focuses on COVID-19, with an emphasis on modelling. At the time of trial, Associate Professor Yakob was an Associate Professor of Infectious Diseases in the Department of Disease Control at the London School of Hygiene and Tropical Medicine, an advisor to Pfizer and the European Centre for Disease Prevention and Control and a collaborator with the Centre for Mathematical Modelling of Infectious Diseases COVID-19 Working Group.

(5)    Professor David Paterson – Professor Paterson is an infectious diseases physician and academic. Professor Paterson holds a PhD and a Bachelor of Medicine and Surgery from the University of Queensland and a Postgraduate Diploma in Clinical Epidemiology and Biostatistics, and is Australia’s most cited infectious diseases physician. Professor Paterson is a Fellow of the Royal Australian College of Physicians (Infectious Diseases) and a Fellow of the Royal College of Pathologists (Clinical Microbiology). At the time of trial, Professor Paterson was a Professor of Medicine and Director of the clinical research network Advancing Clinical Evidence in Infectious Diseases at the National University of Singapore.

(6)    Professor Catherine Bennett – Professor Bennett is an academic epidemiologist specialising in infectious disease epidemiology, public health and community transmission. She holds a PhD in population genetics and applied biostatistics from La Trobe University, a Master in Applied Epidemiology specialising in communicable disease epidemiology from the Australian National University and a Bachelor of Science (Genetics and Microbiology) (Honours) from La Trobe University. At the time of trial, Professor Bennett was the Chair in Epidemiology at Deakin University.

(7)    Dr Peter Chen – Dr Chen is a physician and academic specialising in pulmonary and critical care. Dr Chen holds a medical degree from Baylor College of Medicine and a Bachelor of Science (Honours) from the University of Texas at Austin. Dr Chen’s research focuses upon mechanisms of lung injury and, in recent years, translational, epidemiological and treatment studies of COVID-19 and the impact of COVID-19 infection on pulmonary dysfunction. At the time of trial, Dr Chen was the Director of the Division of Pulmonary and Critical Care Medicine and a Professor in the Department of Medicine (Pulmonary and Critical Care Division) at Cedars-Sinai Medical Center, Los Angeles, and a Professor-in-Residence at the University of California, Los Angeles.

29    The following table summarises the joint reports that were provided by the expert witnesses as the product of their discussions in conclave and relied on by the parties in evidence. Those discussions, and the production of the joint reports, were facilitated by an independent barrister appointed by the Court and paid for by the parties.

B.4    Coronavirus

B.4.1    Introduction

30    In late 2019, a novel coronavirus emerged at Wuhan in China which came to be named severe acute respiratory syndrome coronavirus 2, or SARS-CoV-2 (hereafter, also the virus or coronavirus), and the disease caused by it was named coronavirus disease 2019, or COVID-19 – recognising that, depending on the context, it may not be relevant to distinguish between the virus and the disease. The virus had not previously been seen in humans indicating negligible, if any, immunity in the population. The characteristics of the virus and COVID-19 have largely been agreed between the relevant experts. What follows is drawn from their joint reports and the parties’ statement of agreed facts.

31    SARS-CoV-2 is a beta-coronavirus and is related to (ie, shares about 86% genetic similarity with) the SARS coronavirus that caused a major SARS outbreak in 2003, SARS-CoV. Although, SARS-CoV-2 has undergone further viral evolution with further variants, as at 8 March 2020, only the ancestral strain (ie, the Wuhan strain) was circulating. The first published reports of human-to-human transmission of SARS-CoV-2 were made available in late January 2020. [JNT.001.001.0001 [1]-[3]]

B.4.2    Characteristics and transmission

32    Transmission of coronavirus can occur via respiratory droplets from an infected person, aerosol transmission and contact with objects that have been contaminated with respiratory droplets from an infected person. The latter is referred to as fomite transmission. [CRT.500.004.0001 [11]]

33    A respiratory droplet is a small aqueous droplet >10µm in diameter (although there is a continuous distribution between small particles <5µm to large particles >15µm) consisting of saliva and other matter derived from respiratory tract surfaces. Respiratory droplets are produced naturally as a result of breathing, speaking, sneezing, coughing or vomiting, so they are always present in a person’s breath, but certain functions such as speaking and coughing increase their number. Coughing, sneezing and singing also result in a more forceful expulsion of such droplets. [CRT.500.004.0001 [13]; JNT.001.001.0001 [22]] When a person is infected, these droplets carry virus and transmit infection. The largest droplets settle out of the air rapidly, within seconds to minutes. Infection via contact with respiratory droplets is referred to as respiratory droplet transmission.

34    The smallest of the aqueous droplets – particles that are <5µm in diameter – rapidly dry and become aerosol particles. [EXP_SKA.003.003.0226 [42]; EXP_SKA.001.001.0001 [23]] Aerosols can remain in the air for longer periods of time (up to hours, depending on ventilation) and travel further than respiratory droplets. Aerosol transmission is distinct from respiratory droplet transmission and refers to the presence of viruses within small droplet nuclei.

35    Transmission occurs in all three modes of transmission via inhalation of large respiratory droplets and smaller aerosol droplets or particles, settling of large respiratory droplets and/or smaller aerosol droplets or particles on exposed mucous membranes in the mouth, nose or eye by direct splashes and sprays, or touching mucous membranes with hands that have been soiled either directly via virus-containing respiratory fluids or indirectly by touching surfaces with virus on them. Point of entry is mainly through the nose. [CRT.500.004.0001 [14]]

36    Once infectious droplets and particles are exhaled by an infected person, they move outward from the person (the source). The highest concentration of droplets is in close proximity to the source. [CRT.500.004.0001 [16]]

37    Risk of transmission is greatest within 1.5 to 2 metres as this is where the concentration of these droplets and particles is greatest. The risk of infection decreases with increasing distance from the source of infection and increasing time after exhalation. Enclosed spaces with inadequate ventilation within which the concentration of exhaled respiratory fluids can build up in the air space increases the risk of infection. Another factor is prolonged exposure to these conditions, typically more than 10-15 minutes. [CRT.500.004.0001 [17]; JNT.001.001.0001 [22 (g)]]

38    The relevant experts agree that the characteristics of respiratory droplets and principles of transmission of respiratory droplets constitute standard knowledge in the field of epidemiology and outbreak investigations that preceded both the COVID-19 and the SARS outbreaks. [JNT.001.001.0001 [23]]

39    As at 8 March 2020, the median incubation period for the virus was considered to be 5-6 days, ranging from 0-14 days. A paper was published in January 2020 in respect of an outbreak in Germany that month which reported a median incubation time of 4 days, with a range of 2.3 to 4.4. [JNT.001.001.0001 [7]-[8]]

40    Coronavirus can be transmitted in the ways identified above by both symptomatic and asymptomatic infected persons. [CRT.500.004.0001 [20]] Asymptomatic infection occurs when a person is infected but develops no symptoms. [JNT.001.001.0001 [9]]

41    The relevant experts agree that the existence of asymptomatic transmission was known from three peer-reviewed reports published before 8 March 2020, but the extent of asymptomatic transmission was not known. As at 8 March 2020, asymptomatic transmission was not thought to be a major driver of transmission. After 8 March 2020, one of the reports was corrected to be a pre-symptomatic case. [JNT.001.001.0001 [24]] A pre-print study (ie, not yet peer reviewed) was published on 20 February 2020 that documented the proportion of asymptomatic infections to be 18%, although after 8 March 2020 it became known that a substantial proportion (20-45%) of people infected with the ancestral Wuhan strain do not develop symptoms. [JNT.001.001.0001 [11]-[12]]

42    A risk assessment internal to the respondents dated 25 February 2020 shows that the respondents were aware of asymptomatic transmission at that stage, although the “extent” of such transmission was not known. [PCL.001.006.7128] It was also put to Mrs Karpik in cross-examination as a positive proposition that as at 8 March 2020 she knew that the virus could be transmitted by someone who had no symptoms, and that it was said in the news that there was a theory that on the Diamond Princess transmission had occurred from asymptomatic people (T142:25-30). Although Mrs Karpik said that she was not sure that she had that knowledge at that time, the fact of knowledge of asymptomatic transmission having been put as a positive assertion grounds the inference that the respondents, who had reason to know far more about the virus and its transmission than an ordinary passenger such as Mrs Karpik, had that knowledge at that time. (See [122] below on the questions of assertions in cross-examination amounting to admissions against interest.)

43    The experts also agree that by February 2020, it was known that the serial interval of COVID-19 is shorter than its median incubation period. That indicates that a certain proportion of secondary transmission occurs prior to illness onset. Pre-symptomatic transmission plays an important role in transmission dynamics of COVID-19. [JNT.001.001.0001 [25]]

B.4.3    Symptoms

44    Coronavirus can cause the following symptoms: fatigue, cough, shortness of breath and fever. In cases of severe and critical illness, the virus can cause respiratory failure and an inability to properly breathe without a respirator, septic shock, multiple organ dysfunction/failure and death. [CRT.500.004.0001 [22]-[23]]

45    On 18 February 2020, China’s Centre for Disease Control published their data of the first 72,314 cases including 44,672 confirmed cases. About 80% of the confirmed cases were reported to be mild disease or less severe forms of pneumonia, 13.8% severe and 4.7% critically ill. The study also noted that nearly half (49%) of critically ill patients died. Initial estimate of the overall case fatality rate was around 2.2%. Severe disease is defined as those with dyspnoea, hypoxia, or >50% percent lung involvement on imaging. Critical disease is defined as respiratory failure, shock, or multi-organ dysfunction. [JNT.001.001.0001 [15]]

46    Acute respiratory distress syndrome (ARDS) is the major complication in patients with severe disease and can manifest shortly after the onset of dyspnoea. Other complications of severe illness include thromboembolic events, acute cardiac injury, kidney injury, and inflammatory complications and various others. [JNT.001.001.0001 [16]]

47    Some people who have been infected with the virus can experience a condition known as Long COVID which is where common COVID-19 symptoms such as fatigue, shortness of breath or cognitive dysfunction last either for at least four weeks after infection or at least three months after infection and are present for at least two months. Long COVID symptoms may improve or relapse over time. [CRT.500.004.0001 [28]-[29]]

48    There is currently no biomarker or diagnostic test for Long COVID. The diagnosis of Long COVID is based upon an evaluation of a person’s symptoms. Often, this evaluation occurs in conjunction with a physical examination and imaging or functional testing. Careful consideration of pre-existing condition is important in evaluating someone for Long COVID to ensure that the symptoms are not from previously known diseases. Clinicians need to also consider new diagnoses that are not considered Long COVID but are contributing to the patient’s symptoms. [CRT.500.004.0001 [30]]

B.4.4    The respondents’ knowledge

49    It is common ground that by 5 March 2020, the respondents knew or ought reasonably to have known the following:

(1)    coronavirus can be transmitted via objects and bodily fluids contaminated with the virus;

(2)    coronavirus is capable of human-to-human transmission;

(3)    human-to-human transmission of coronavirus can occur via droplets and fomites from an infected person;

(4)    an infected person may be asymptomatic;

(5)    coronavirus can cause the following symptoms: lethargy, coughing, shortness of breath, fever, and inability to properly breathe without a respirator, and death;

(6)    the symptoms of coronavirus may be similar to, or the same as, symptoms caused by an ARI and/or ILI;

(7)    the mortality rate in people infected with coronavirus increases with age;

(8)    people who are elderly or who have comorbid conditions are more susceptible to becoming severely ill or dying due to coronavirus than people who are not elderly or have no comorbidities;

(9)    coronavirus is contagious;

(10)    there was no vaccine for coronavirus at any time before completion of the voyage. [CRT.500.004.0001 [31]]

50    The respondents deny as a fact, and they deny that before the voyage they knew, that the risk of contracting coronavirus on a cruise ship was higher than the risk in the community generally. I deal with this dispute in section B.5.3 below.

B.4.5    Prevalence of coronavirus prior to 8 March 2020

51    On 30 January 2020, the World Health Organization (WHO) declared the outbreak of coronavirus a Public Health Emergency of International Concern. The respondents knew this. [CRT.500.004.0001 [32]]

52    By 8 March 2020, based on the “WHO Coronavirus Disease 2019 (COVID-19) Situation Report – 47”:

(1)    there had been over 100,000 confirmed cases of coronavirus reported globally;

(2)    over 90 countries had confirmed cases of coronavirus;

(3)    countries that had over 100 confirmed cases included: the United Kingdom, the United States of America, France, Germany, Italy and The Netherlands; and

(4)    there had been local transmission of coronavirus reported in more than 40 countries including each of the countries listed above as well as Canada and Spain. [CRT.500.004.0001 [33]]

53    By 8 March 2020, based on the Australian Government, Department of Health, “Communicable Diseases Intelligence, COVID-19, Australia: Epidemiological Report 6” (published on 11 March 2020), in Australia:

(1)    there were over 70 confirmed cases of coronavirus, including two deaths;

(2)    16 cases had direct or indirect links to mainland China;

(3)    10 cases were among the Diamond Princess cruise ship passengers repatriated from Japan;

(4)    16 cases had direct or indirect links to the Islamic Republic of Iran;

(5)    14 cases had a recent travel history to other countries; and

(6)    there were approximately 40 reported cases of coronavirus in NSW. [CRT.500.004.0001 [34]-[35]]

54    On 11 March 2020, several days into the voyage of the Ruby Princess, the WHO declared COVID-19 a pandemic. In a statement that day, the Director-General of the WHO stated that “we are deeply concerned both by the alarming levels of spread and severity, and by the alarming levels of inaction.” Back on 23 February 2020, Dr Grant Tarling, the respondents’ Senior Vice President and Chief Medical Officer, had stated that he expected that COVID-19 would soon become a pandemic. [SKA.005.001.0264; PCL.002.025.1105] The evidence shows that Dr Tarling was involved since January 2020 with the United States’ Centers for Disease Control and Prevention (CDC) and industry groups (including the Cruise Line International Association, or CLIA) in developing response protocols and communications concerning the developing coronavirus situation. [PCL.001.006.4630 p 2]

55    The evidence also shows that there were comprehensive situation reports about developments in relation to coronavirus that were sent to the respondents’ executives on an almost daily basis through, relevantly, January to March 2020. These reports provided updates with respect to various vessels in the respondents’ fleet, such as number of infections on board, port of call restrictions, itinerary changes and the risk of certain passengers joining; as well as more general updates about the global situation with respect to the spread of coronavirus, such as case and fatality numbers. [SBM.010.002.0001 fn 164]

B.5    Coronavirus risk

B.5.1    Previous coronavirus outbreaks on cruise ships

56    Prior to the voyage in question, there had been cases of coronavirus on board the Diamond Princess and the Grand Princess, both of which are cruise ships owned by PCL. [CRT.500.004.0001 [36]] The outbreaks on those vessels are relevant because of the respondents’ knowledge of the material circumstances of those outbreaks. There had also been an outbreak of ARI and ILI on board the cruise of the Ruby Princess immediately preceding Mrs Karpik’s cruise, namely voyage RU2006. That is relevant because of what it might say about the risk of coronavirus being on the vessel and being carried over to voyage RU2007.

(1)    The Diamond Princess

57    On 20 January 2020, the Diamond Princess departed Yokohama Port in Japan on a 16-day round trip itinerary, including travelling to Hong Kong on 25 January 2020. There were approximately 3,700 passengers and crew on board. [CRT.500.004.0001 [37]-[38]]

58    On or about 1 February 2020, one passenger from Hong Kong who travelled on the Diamond Princess cruise for five days from 20 January and disembarked in Hong Kong on 25 January 2020, tested positive for coronavirus. By about 4 February 2020, 10 people on board the Diamond Princess had tested positive for coronavirus, including two Australian guests, three Japanese guests, three guests from Hong Kong, and one guest from the United States, in addition to one Filipino crew member. The number of infected passengers and crew steadily increased and by 20 February 2020, over 600 people who had been on the Diamond Princess cruise had tested positive for coronavirus. [CRT.500.004.0001 [39]-[40], [43]-[45]]

59    On or about 1 March 2020, a passenger who had contracted coronavirus on the Diamond Princess cruise became the first Australian to die due to coronavirus. [CRT.500.004.0001 [46]]

60    By 5 March 2020, the respondents knew of the matters set out in the preceding paragraphs concerning the Diamond Princess. [CRT.500.004.0001 [49]]

61    By 7 March 2020, over 600 passengers who had been on the Diamond Princess cruise had tested positive for coronavirus, over 300 of those confirmed cases showed no symptoms of coronavirus at the time of specimen collection for testing, and more than five passengers had died due to coronavirus. [CRT.500.004.0001 [47]]

62    By 8 March 2020, when the Ruby Princess departed Sydney, seven passengers from the Diamond Princess cruise had died due to coronavirus, nearly 700 (over 18%) of the approximately 3,700 passengers who had been on the Diamond Princess cruise had tested positive for coronavirus, and over 40% of the people on the Diamond Princess cruise who tested positive for coronavirus were asymptomatic at the time of testing. [CRT.500.004.0001 [48]; PUB.005.001.0425]

63    The respondents knew of the matters set out in the preceding two paragraphs by the evening of 8 March before the Ruby Princess departed from Sydney. [CRT.500.004.0001 [50]]

(2)    The Grand Princess

64    From 11 to 21 February 2020, the Grand Princess sailed on a roundtrip passenger cruise from San Francisco, California, to Mexico and Hawaii (the first trip). On 21 February 2020, the Grand Princess departed San Francisco on a second roundtrip voyage to Hawaii, carrying approximately 2,422 guests and 1,122 crew. [CRT.500.004.0001 [51]-[52]; PCL.001.002.1985]

65    By 4 March 2020, at least one passenger from the first trip had tested positive for coronavirus and at least one had died from coronavirus. On or about 4 or 5 March 2020, after PCL was notified of the positive test, it commenced cancelling all social activities planned for the remainder of the second voyage. [CRT.500.004.0001 [53]-[54]] By 5 March 2020, CDC had reported another positive case from the first trip and that one of the individuals was being treated in an Intensive Care Unit (ICU). [PCL.001.006.9323]

66    By 6 March 2020, over 20 passengers on the second trip of the Grand Princess had tested positive for coronavirus. [CRT.500.004.0001 [55]] By 7 March 2020, there were 11 positive cases from the first trip. [PCL.001.002.1985]

67    On 7 March 2020 at 5.00pm CT, ie, 9.00am on 8 March in Sydney, PCL reported to the press that of 45 guests and crew who were tested for the virus on the second trip, 21 people had tested positive, being two guests and 19 crew. The 45 people selected for testing was on the basis that they had presented with ILI on the voyage as they were regarded as the highest risk cohort and were required by the CDC to be tested. It was also reported that it was believed that the index case on the vessel, ie, the person who took the virus onto the vessel, was a guest on the first trip, and that the virus had spread from that person to other guests and crew. The problem for the second trip was that the crew remained on board. [PCL.001.003.6200]

68    The respondents knew of the matters recorded above about the Grand Princess cruises before the embarkation of passengers for voyage RU2007 in Sydney. [CRT.500.004.0001 [56]]

(3)    Seven Nile River cruise ships

69    On 14 March 2020, the CDC reported that it was not only large cruise ships that had experienced coronavirus outbreaks. An outbreak on board a Nile River cruise with 171 passengers and crew resulted in 45 confirmed COVID-19 cases. Many of the passengers returned home before any notifications about COVID-19 were provided, potentially spreading the disease to their home communities. Evidence of COVID-19 transmission on board six similar Nile River cruise ships, each carrying approximately 100 passengers, was said to illustrate that even ships with moderate numbers of passengers and crew on board carried a substantial risk of disease transmission and outbreak. [PUB.010.003.0001]

(4)    The Ruby Princess voyage RU2006

70    On 24 February 2020, the Ruby Princess departed Sydney on a cruise to New Zealand, returning to Sydney on 8 March 2020. There were approximately 3,000 passengers and 1,163 crew on board. The ship’s medical centre maintained an acute respiratory diseases log (ARD log) from which much of the data that follows is drawn. [CRT.500.004.0001 [57]-[58]]

71    During the cruise, 162 persons presented to the ship’s medical centre with ARI. Guests accounted for 150 of those people, and crew members, 12. [CRT.500.004.0001 [59]-[60]]

72    Of the crew members, 10 were recorded as having ARI and two as having ILI. Four crew members were tested for influenza A and B, but all of them tested negative. The remaining eight were not tested. [CRT.500.004.0001 [61]]

73    Of the guests, 134 were recorded as having ARI and 16 as having ILI. Only 26 guests were tested for influenza A and B, of whom seven tested positive and 19 tested negative. [CRT.500.004.0001 [62]]

74    When the Ruby Princess docked in Sydney on 8 March 2020 at the conclusion of the cruise, 360 passengers (8.8%) presented in response to an announcement calling for anyone with a travel history of concern or respiratory symptoms to present themselves for screening by NSW Health. Of those passengers, only nine were tested by NSW Health for the virus – three crew and six guests. All the tests were negative. [SBM.010.002.0001 [57]; CRT.500.004.0001 [64]]

75    It is unclear what role the ARI/ILI outbreak on voyage RU2006 had with regard to the outbreak of COVID-19 on RU2007. A number of observations can nevertheless be made.

76    First, the symptoms of ARI and ILI are also symptoms of COVID-19, so passengers and crew reporting with such symptoms may have had COVID-19, particularly considering that only nine people were tested for the virus and someone with COVID-19 may have no symptoms or mild symptoms such that they would not have been selected for testing. That was known by the respondents because of their Diamond Princess experience (see [62]-[63] above).

77    Secondly, over 1,100 of the approximately 1,200 crew on RU2006 stayed on board for RU2007. There was thus a considerable risk that if anyone amongst the crew on RU2006 was carrying the virus, they would take it onto RU2007. The respondents must be taken to have known of that risk because of their Grand Princess experience (see [67]-[68] above).

78    Thirdly, albeit that fomite transmission is not a principal means of transmission of the virus, if it was present on RU2006, there is a risk that it would cause an outbreak on RU2007. The respondents knew of that risk (see [49(1)] above).

79    Fourthly, while health screening was taking place on the vessel on 8 March at the end of RU2006, the respondents prepared a draft media statement in case any of the passengers or crew tested positive for the virus. From the draft statement and the email exchanges between officers of the respondents, it is apparent that the respondents planned to cancel RU2007 in the event that there was a positive case on RU2006. Moreover, a 100% refund and 100% future cruise credit would be offered to passengers in the event of a cancellation, as well as hotel accommodation in Sydney and “some incidentals” – possibly onward flights and accommodation. This was said to be “in line with what we are offering for Guests also impacted by Grand and Royal cancellations.” [PCL.001.004.4279] The reference to Royal is a reference to the Royal Princess which had its cruise departing a US port on 7 March 2020 cancelled because one crew member had transferred to it from the Grand Princess and the CDC required the crew member to be tested for coronavirus and that could not be done quickly enough.

80    The telling observation is that the respondents planned to immediately cancel RU2007 on one positive test being returned from RU2006, yet apparently did not consider cancelling RU2007, or even offering the passengers the possibility to cancel with a refund, even though there was a substantial ARI/ILI outbreak on RU2006. The respondents knew that a person could be infectious with very mild symptoms or even no symptoms at all and hence not be caught by the screening on RU2006, and only nine people from RU2006 were being tested for coronavirus. In other words, the respondents knew or ought to have known that there was a substantial risk of COVID-19 on RU2006 and that the testing of only nine people from the voyage was not likely to identify all positive cases, with the result that there was a heightened risk of the virus being on RU2007 compared with cruise ships generally.

B.5.2    Guidelines, protocols and procedures

81    Since the start of the coronavirus pandemic, governments and government-related institutions around the world have introduced protocols and guidelines aimed at reducing the spread of the virus. Some of those protocols and guidelines are directed at passenger liners, and others are relevant to the management of passenger liners.

(1)    The Centers for Disease Control and Prevention

82    The CDC is a United States federal government agency. The CDC’s guidance is relevant not only because it is a leading public health agency internationally, but also because the respondents are headquartered in the USA and, as would be expected, monitored statements and advice issued by the CDC that was relevant to a cruise ship operator.

83    On 18 February 2020, the CDC revised its “Coronavirus Disease 2019 Guidance for Ships” (CDC COVID Ship Guidance). The respondents were aware of that information before the Ruby Princess departed from Sydney on 8 March 2020. The revised guidance included statements to the following effect: [CAU.001.107.0003]

(1)    Early detection, prevention, and control of COVID-19 on ships is important to protect the health of travellers on ships and to avoid transmission of the virus by disembarking passengers and crew members who are suspected of having COVID-19.

(2)    Commercial shipping, including cruise ships and other passenger vessels, involves the movement of large numbers of people in closed and semi-closed settings. This may facilitate the transmission of respiratory viruses from person-to-person through exposure to respiratory droplets or contact with contaminated surfaces.

(3)    To reduce the spread of respiratory infections including COVID-19, it is recommended that ships encourage crew members and passengers to self-isolate and inform the on-board medical centre if they develop symptoms.

(4)    Identifying and isolating passengers and crew with possible symptoms of COVID-19 as soon as possible is needed to minimise transmission of this virus.

(5)    Because the signs and symptoms of COVID-19 are non-specific, people on board who have fever or ARI should be tested for influenza.

(6)    Deny boarding of a passenger or crew member who is suspected to have COVID-19 infection based on signs and symptoms plus travel history in China or other known exposure at the time of embarkation.

(7)    In addition to routine cleaning and disinfection strategies, ships may consider more frequent cleaning of commonly touched surfaces such as handrails, countertops, and doorknobs. The primary mode of COVID-19 virus transmission is believed to be through respiratory droplets that are spread from an infected person through coughing or sneezing to a susceptible close contact within about 6 feet. Therefore, widespread disinfection is unlikely to be effective.

84    On 14 March 2020, the CDC issued a “No Sail Order” for all commercial non-cargo passenger-carrying ships within its jurisdiction with the capacity to carry 250 or more passengers and crew with an itinerary anticipating an overnight stay on board or a twenty-four hour stay on board for either passengers or crew. The “No Sail Order” records that the CDC had previously recommended that travellers, particularly those with underlying health conditions, avoid all cruise ship travel worldwide, and that the US Department of State had issued guidance that US citizens should not travel by cruise ship. [PUB.010.003.0001]

(2)    The World Health Organization’s Interim Guidance

85    On 24 February 2020, the WHO issued an interim guidance entitled “Operational considerations for managing COVID-19 cases and outbreaks on board ships” (WHO Interim Ship Guidance).

(3)    NSW’s Enhanced COVID-19 Procedures for the Cruise Line Industry

86    On 23 February 2020, the “Enhanced COVID-19 Procedures for the Cruise Line Industry” (Enhanced NSW Cruise Procedures) introduced by the Chief Health Officer for New South Wales was provided to the respondents who were asked to confirm that each cruise ship docking in New South Wales was able to meet those procedures. The enhanced procedures document included statements to the following effect: [CAU.001.040.5818; CAU.001.040.6314]

(1)    The recent outbreak of COVID-19 on the Diamond Princess cruise ship in Japan demonstrates the serious impact this disease can have in cruise ship environments.

(2)    Each cruise ship vessel should ensure that they have sufficient supplies of materials to manage a respiratory outbreak on board, including: face masks, alcohol hand rub for ill passengers and crew, and personal protective equipment (PPE) for clinic staff.

(3)    A respiratory outbreak is defined as >1% of people on board affected. Smaller numbers of cases with mild respiratory illness are expected and do not necessarily represent an outbreak.

(4)    Passengers who may be infectious should be appropriately isolated.

87    By 7 March 2020, the respondents had received a revised version of the procedures put in place by the New South Wales Chief Health Officer for cruise ships dated 3 March 2020. The revised procedures included statements to the following effect: [PCL.001.005.6517; PCL.001.005.6518]

(1)    Each cruise ship should ensure that they have sufficient supplies of materials to manage a respiratory outbreak on board, including face masks and alcohol hand rub for passengers and crew with ARI.

(2)    Each ship should collect and retain for 14 days after each cruise in case required a log of where passengers and crew have travelled in the 14 days prior to embarkation – in order to facilitate this, it is strongly recommended that pre-embarkation screening of crew and passengers include a history of travel in the previous 14 days.

(3)    Cruise ship staff should ensure that they actively identify passengers and crew with ARI – including cough, sore throat, fever or difficulty breathing – by making regular announcements throughout the cruise, inviting them to attend the clinic for assessment.

(4)    Passengers with ARI/ILI who may be infectious should be appropriately isolated, and provided with alcohol hand rub and face masks. If sharing a cabin, roommates should be provided with alcohol hand rub and face masks, and educated on how to protect themselves.

(4)    Federal Government regulation and guidance

88    On 1 February 2020, the Australian Government announced that it would not permit foreign nationals who had been in mainland China on or after 1 February 2020 to enter Australia for 14 days from the time of leaving or transiting through mainland China, and that Australian citizens and permanent residents who had been in mainland China were required to self-isolate for 14 days from the time they had left. The announcement also stated the following: [PUB.001.012.0001]

In particular, the changing epidemiology of the coronavirus in China and the uncertainty that remains around its transmission and virulence, mean the utmost precaution is warranted.

There is no basis for alarm. It is important to remember the risk to Australians is currently very low. We need to keep it that way.

89    On or about 6 February 2020, the Australian Health Protection Principal Committee (AHPPC) published a statement advising that transmission of the virus occurred “through close contact with an infected individual, mostly face-to-face or household contact” and that the virus could not “jump across a room or be carried for long distances in the air.” It was said that “the current evidence suggests that sick people early in their illness are the main driver of spread.” [PUB.005.001.0010]

90    On 29 February 2020, the Australian Government announced travel restrictions banning non-citizens (other than permanent residents) who had been in Iran on or after 1 March 2020 from entering Australia for 14 days from the time they had left or transited through Iran, and requiring Australian citizens and permanent residents to self-isolate at home for 14 days from the day they had left Iran. [PUB.001.013.0001]

91    By the end of February 2020, international arrivals from other countries identified as “high risk”, namely Cambodia, Hong Kong, Indonesia, Iran, Italy, Japan, Singapore, South Korea and Thailand, were not required to isolate, but were asked to monitor their health for a period of 14 days after their arrival to Australia. [EXP_RES.002.001.1458 [23]]

92    On 6 March 2020, the Australian Government Department of Health also issued the “National Protocol for Managing Novel Coronavirus Disease (COVID-19) Risk from Cruise Ships” (National Cruise Ship Protocol). The document included statements to the following effect: [PCL.001.003.0313]

(1)    Given the population density, duration of cruises and the mixing patterns of people on board, there may be the spread of diseases from international travellers who pose human biosecurity risks to other travellers. It is therefore necessary to have enhanced surveillance and control measures among travellers.

(2)    Respiratory illnesses (common cold and influenza) are some of the most common infections affecting people on cruise ships, and cases of COVID-19 aboard passenger ships have occurred. Because cases of seasonal influenza often occur on ships and sustained community transmission of COVID-19 has been observed, it is possible that passenger ships carrying thousands of people would have travellers with COVID-19.

93    By the time the Ruby Princess departed Sydney on 8 March 2020, no Australian government had utilised their extensive powers to restrict public gatherings, force the closure of businesses or impose conditions on entry into premises, such as limits on numbers, physical distancing, mask wearing, and so on.

(5)    The respondents’ protocols, instructions and decisions

94    On 24 January 2020, the respondents issued version 1 of “Instructional Notice HEA/01/2020: Prevention and Control of 2019-Novel Coronavirus” which required all their vessels by 27 January 2020 to screen passengers and crew (by requiring passengers to complete Traveller’s Health Declarations) for recent travel history through Wuhan and to deny boarding to any of those persons with a fever or respiratory symptoms.

95    Instructional Notice HEA/01/2020 was updated several times, and various operational directives were issued by the HA Group detailing the operational procedures to be implemented by ships within the HA Group fleet (which include the Ruby Princess as a PCL vessel) to give effect to the requirements of Instructional Notice HEA/01/2020 as amended from time to time.

96    Revision 3 of Instructional Notice HEA/01/2020 was effective on 11 February 2020 when the Grand Princess embarked on its ill-fated voyage. That notice required pre-embarkation screening based on travel history and symptoms, preventing travellers from boarding if they had been in Mainland China, Macau or Hong Kong in the previous 14 days or had contact with a suspected or confirmed case of coronavirus and they reported relevant symptoms. [PCL.002.035.4484] Mrs Karpik observes that that form of screening based on travel history and reported symptoms did not work to keep the Grand Princess free of disease.

97    On 8 February 2020, Brian Badura, the Director of Global Public Relations & Strategic Initiatives of the respondent’s Seabourn brand emailed the other brands recording that Seabourn had had two instances where guests had not properly disclosed travel through China prior to boarding a vessel. In both cases, the guests checked “no” when asked if they had come via any prohibited areas. As a response, Mr Badura proposed including wording in the health declaration that shipboard staff would be scanning guest passports to verify that the information given was correct and threatening to disembark passengers who failed to disclose travel through prohibited areas. [PCL.002.035.0952]

98    Dr Tarling, the HA Group’s Chief Medical Officer, responded by supporting the new language in the health declarations but observed that, operationally, it was doubtful that check-in staff have the time or the knowledge to recognise Chinese entry and exit stamps and that “[t]here will not be many people admitting to China travel with the restrictions currently in place.” Mr Badura agreed and commented that the additional language was intended to be a deterrent and would hopefully encourage proper disclosures. [PCL.002.035.0952]

99    The respondents issued a protocol for “Identification, Assessment and Management of Patients for Coronavirus Disease 2019 (COVID-19)” in February 2020. It outlined procedures for the identification, assessment and management of patients presenting with an ARD for COVID-19. It covered both pre-embarkation screening and on-board management. [PCL.002.022.3537]

100    On or around 27 February 2020, the respondents distributed a document entitled “Enhanced Cleaning Protocols”, which required, inter alia, thermal screening at entrances to cruise terminals and increased frequency of sanitising of hand touch surfaces (every 15 minutes). [CRT.500.004.0001 [85]-[86]; CAU.001.107.0001]

101    As dealt with further below in dealing with communications sent to passengers before boarding for RU2007, on 5 March 2020 the respondents announced a change to their cancellation policies which would allow passengers booked on any cruises scheduled to depart from 9 March and thereafter (ie, the day after RU2007) to be given a full credit for a future booking.

102    Also on 5 March 2020, Revision 5 of Instructional Notice HEA/01/2020 was issued with effect from 7 March 2020. On 6 March 2020, an amended version of “Operational Directive PHS/04/20 – Coronavirus Boarding Instructions” was issued setting out revised boarding procedures and instructions for all ships within the HA Group fleet to give effect to Revision 5. [CAU.001.040.7332; CAU.001.018.0045; CAU.001.010.8754]

103    Pursuant to Revision 5, all passengers and crew were to be required to complete a standard form “Traveller’s Health Declaration”, which asked them to declare answers to specific questions. Based on the answers to the questions posed in the Traveller’s Health Declarations:

(1)    travellers (and their close contacts) from or who had transited through mainland China, Hong Kong, Macau, South Korea or Iran (or a location subject to quarantine measures, such as certain municipalities in Italy) were to be denied boarding;

(2)    travellers (and their close contacts) who had been in contact with a suspected or confirmed case of COVID-19 or a person monitoring for COVID-19 were to be denied boarding; and

(3)    travellers from or who had transited through Italy, Japan, Singapore, Taiwan or Thailand were to undergo secondary health screening by medical staff in the terminal before being permitted to board, and were to be denied boarding (together with their close contacts) if they had fever, cough or difficulty breathing.

104    Revision 5 also provided that check-in staff should identify individuals travelling on Chinese, Hong Kong, Macau, South Korean and Iranian passports and reconfirm that they had not recently travelled from or through countries with active quarantine locations. There was no requirement that passports from other countries be checked, or that the passengers’ health declarations otherwise be checked for accuracy or truthfulness. [CAU.001.040.7332 p 3]

105    On 7 March 2020, the vessel’s Hotel General Manager was emailed an “Enhanced Public Health Protocols” document by Amanda Kent, Guest Experience & Product Development, which he distributed to his direct reports. That document is a marked up and amended version of the Enhanced Cleaning Protocols that was issued by the respondents on 27 February 2020. On 8 March 2020 at 7:51am, Mr Verwaal was emailed a clean version of the Enhanced Public Health Protocols document (ie, with the mark-up removed and changes accepted) by Livio Rebagliati, Public Health Support for HA Group. It had instructions under different headings which included the following: [CAU.001.001.0012; CAU.001.001.0013]

(1)    Pre-cruise and during transfer to ship: basic hygiene guidance for passengers such as frequent hand washing and coughing into elbows, providing hand sanitisers before boarding buses and sanitising buses.

(2)    Check-in/terminal: respiratory symptoms screening and detailed passport review at check-in by embarkation staff.

(3)    On-board: detailed instructions for daily communication with all crew reinforcing basic hygiene practices including frequent hand washing, avoiding hand contact, refraining from serving drinks in reusable tumblers and encouraging crew to report any guests who show relevant signs of illness; detailed enhanced hygiene measures including staff monitoring hand washing at food venues, the provision of hand sanitiser and directing guests to wash their hands, increasing frequency of sanitising for high traffic hand touch surfaces in public areas, providing hand sanitiser in each guest stateroom, and propping doors open to reduce door handle touching.

(4)    Crew on-boarding process in the terminal: All crew joining are screened for travel and for fever; confirm health questionnaire has been completed; detailed passport review; provide a small hand sanitiser for each crewmember.

106    Importantly, it deleted the requirement of either thermal or touchless temperature screening prior to embarkation. Thus, as at 8 March 2020, there was no longer any policy of, or instructions from, the respondents that there should be generalised temperature screening prior to allowing passengers or crew to board a vessel, despite a raised temperature being a defining symptom of COVID-19. As dealt with in more detail below (at [633]), in an email on 11 March 2020 about sourcing thermal cameras, Sture Myrell, the President of Carnival Australia, said to Jeremy Goodman, Carnival’s Supply Chain Director, that another cruise line, Royal Caribbean, had already implemented temperature screening and that “we are way behind.” He said that Carnival had been talking about it for four weeks and that it should now be a number one priority. [CAU.001.039.8328]

107    On 11 March 2020, the respondents issued an update of a document entitled “Health Advisory and Travel Safety Procedures.” It provided, inter alia, as follows: [PCL.001.007.2331]

Beginning in select embarkation terminals on March 7th and as soon as possible in all embarkation terminals, we will be temperature checking all guests embarking on our ships using temporal scanning thermometers. All guests presenting with a fever or flu-like symptoms will be denied boarding, irrespective of their recent travel history. All guests who are denied boarding due to sickness will be issued a full cruise credit or refund.

It is not clear on the face of the document what was updated in the document and when it was first issued. However, given that there are numerous references to 7 March 2020 in the document, it had to have been initially issued on or prior to that date.

108    On 13 March 2020, the respondents announced a decision to suspend all Princess cruising globally for an initial period of 60 days and to move each ship to a “soft layup” position. The respondents’ explanation for the decision was given by them as follows: [CAU.001.011.6854]

Princess has experienced several COVID-19 related incidents. In recognizing this we are committed to the safely (sic), health and wellbeing of our teammates, guests and the communities we visit globally. In an abundance of caution, in the spirit of Respect, Protect, Connect, we believe this important decision is the right thing to do. We also recognize the teams are currently stretched to the point where an additional quarantine incident would be extremely difficult to manage. The teams also need a break and time to refocus on building back the normal operation.

B.5.3    Coronavirus risk on cruise ships

109    An issue in the case that is relevant in different ways is the extent to which, if at all, there is a greater risk to a person contracting COVID-19 on a cruise ship than it is in the general community. As will be seen, this is relevant to the question whether Henry Karpik contracted the virus on the voyage and to questions that arise in the consumer guarantee claims (whether it was possible for cruise services at the relevant time to be reasonably fit for a safety purpose) and the tort claim (the scope and content of the duty of care and the probability of harm).

110    Mrs Karpik pleads that as at 8 March 2020, the risk of contracting coronavirus on a cruise ship was heightened as compared to the risk of contracting coronavirus in the community generally. This is denied by the respondents. [CRT.001.001.0275 [19A]; CRT.001.001.0408 [19A]] That dispute led to Joint Report 3 of the experts Professors Wilder-Smith, Rocklöv, Bennett and McCaw and Associate Professor Vally which reveals remarkable agreement. The question that they sought to answer was:

Was the risk of contracting COVID-19 on a cruise ship compared to the risk of contracting COVID-19 in the general community heightened as at 8 March 2020, including what was known at that time?

111    Save where I indicate the contrary, the findings recorded in this section are based on the agreement of the experts as recorded by them in Joint Report 3.

112    A cruise ship is different from the community in general as cruise ships carry a large number of people (about 4,000 on Ruby Princess) for 1-3 weeks, with some of that time in relatively confined shared spaces, and likely more of such time than that same person would spend in similar spaces when in the general community. The higher density of persons, including the more meeting places, such as restaurants, gyms, social gatherings, and so on, leads to higher contact rates. Contact frequency, contact proximity and contact duration are the main drivers for transmission of the virus. [JNT.001.001.0019 [2], [15]]

113    Passengers and crew on cruise ships generally originate from diverse geographic regions and embark and often disembark multiple times during the voyage, and therefore reflect the epidemiology of COVID-19 from different regions. This puts cruise ships at risk of multiple sources of potential introduction of the virus. Factors that facilitate spread on cruise ships include mingling of travellers from multiple geographic regions and the closed nature of a cruise ship environment. Crew on cruise ships are a known potential vector for infection as they link cohorts when continuing from voyage to voyage. [JNT.001.001.0019 [4], [6], [16], [18]]

114    Also, the risks associated with contracting an infection in a setting where there are more older persons present will be higher due to their increased vulnerability to the virus. [JNT.001.001.0019 [5]] I accept the evidence of Professor Wilder-Smith that cruise ship populations tend to be skewed towards older people compared to the general population. The respondents’ own risk assessment on 25 February 2020 identified that their “guest demographics” (ie, older people) could lead to a higher risk of severe infection, “the older demographic on cruise ships are more susceptible to contract the illness and develop severe disease” and that “the predominantly older demographic will require more ICU admissions.” [PCL.001.006.7128]

115    The same document recognised that “cruise ships, like aircraft, are semi-contained, population dense environments which facilitate disease spread via droplets” and that “[r]apid amplification events from a super-spreader can create hotspots within days such as has been seen on Diamond Princess.” It was also recognised that respiratory diseases are the most common illnesses treated on board cruise ships throughout the year and that coronavirus is more contagious than seasonal flu and has a higher mortality rate. [PCL.001.006.7128]

116    By early March 2020, the contagiousness of the virus had been measured across a range of settings with a range of estimated average R0 values of 1.9-6.5 – where R0 is the reproduction number of an infectious disease, being the average number of new infections caused by one infected individual in a population where everyone is susceptible to the disease. The most common estimate for R0 for ancestral variants was between 2-3, albeit with substantial uncertainty. The WHO estimates of R0 in the community were around 2. [JNT.001.001.0019 [10]]

117    General population R0 estimates comprise the measures of transmission of the virus across a range of risk settings within the population studied. Thus, estimates of individual R0 values across settings within the same population would be expected to vary and to range from very low (including < 1) to very high depending on the characteristics of the setting. Cruise ships’ R0 estimates would be expected to fall within the range of R0s measured in a variety of settings within the general community, because it includes settings with high R0s. Nevertheless, cruise ship R0 is highly likely at the high end of the spectrum. [JNT.001.001.0019 [11]-[12]]

118    I accept the evidence of Professor Wilder-Smith that it is more likely for the virus to be introduced and cause an outbreak on a cruise ship compared to in the community in general. Further, because of the generally higher R0 on cruise ships the spread would likely be more efficient in this setting. [JNT.001.001.0019 [17]]

119    Professors Bennett and McCaw and Associate Professor Vally highlight that the factors that facilitate spread on cruise ships are also present in other venues and settings in the community, including accommodation facilities, or holiday resorts with limited options for dining and other indoor activities, or at which people spend a week or more in residence. They also point to settings other than cruise ships where people from multiple country destinations congregate, such as holiday resorts and travel terminals, which are at a higher risk of having an infectious person present – because of attendees being from different countries including countries with higher prevalence of infection. [JNT.001.001.0019 [7], [19]]

120    I find these examples to be unhelpful, and essentially argumentative, because they do not reflect the community generally which is the relevant comparator, ie, the notional passenger going about their ordinary business of life in the community for 13 days compared to going on a cruise ship for that period of time. The experts agreed on the obvious, namely that there are settings within the community generally with confined spaces, overcrowding and repeated or extended exposures such as holiday resorts, aged care facilities, prisons and boarding schools, and that, if there is seeding in one of these settings, people attending them are at a higher risk of rapid transmission of the virus than in other settings in the community or in the community generally. [JNT.001.001.0019 [21]] That may mean that there are particular duties in respect of those high risk settings, but it does not mean that cruise ships offer the same or similar risk relative to the community generally.

121    If the virus is introduced by a single infected individual on a cruise ship, take-off of the virus is more likely than on average in the general society. Super-spreading was suspected as at 8 March 2020 and is now well established as a feature of the virus. Cruise ships are particularly conducive to super spreading potential, although that is not exclusive to cruise ships. A cruise ship with multiple introductions is more likely, and possibly highly likely, to have an outbreak. [JNT.001.001.0019 [8], [40]]

122    A number of positive assertions were made to Mrs Karpik in cross-examination that are relevant to the question of the heightened risk of transmission of coronavirus on cruise ships. Such positive assertions in cross-examination can be taken to be the respondents’ case at trial, and can therefore be taken as implicit admissions against the respondents’ interests and taken into account in the process of fact-finding: R v Robinson [1977] Qd R 387 at 394 per Dunn J, Wanstall ACJ and Douglas J agreeing; Spiteri v Visyboard Pty Ltd [2005] VSCA 132 at [41] per Ormiston JA, Charles and Chernov JJA agreeing; R v Baring and Leonard [2005] SASC 262; 92 SASR 117 at [70] per Sulan J, Doyle CJ agreeing. These assertions include the following:

(1)    A characteristic of cruise ships, like indoor venues, is that they have inherently confined spaces which means they have a heightened risk of contracting coronavirus when compared to outdoor venues (T144:42-47).

(2)    It is a characteristic of cruise ships that passengers and crew travel to the cruise from a diversity of geographic regions (T145:4).

(3)    It is a characteristic of cruise ships that recreational, health and dining facilities are shared between passengers which leads to frequent physical interaction between crew and passengers and numerous shared high-touch surfaces (T145:36-47).

(4)    It is a characteristic of cruise ships that they offer and promote recreational entertainment activities, requiring physical interaction between crew and passengers and reduced physical distancing (T146:1-6).

(5)    It is a characteristic of cruise ships that if passengers fall ill with a highly infectious illness, they may not be able to be removed from the ship for several days, or at all, depending on the nature of the voyage (T146:8).

(6)    As at 8 March 2020, there were reports that a significant number of people who had tested positive for coronavirus did not have symptoms at the time of testing (T146:21-22).

(7)    There was a not insignificant risk that one or more of the passengers or crew who had been on voyage RU2006 on the Ruby Princess might have been infected with coronavirus (T146:39).

(8)    As at 8 March 2020, there was a not insignificant risk that there were active contagious coronavirus particles on the Ruby Princess (T148:17).

(9)    There was a risk that passengers on the Ruby Princess on the voyage in question could be infected with the virus by a crew member who had been on the previous voyage or by a fellow passenger (T148:33).

123    Notably, the CDC in its “No Sail Order” referred to at [84] above, identified several features of cruise ships that increase the risk of coronavirus transmission. These include: the number and the variety of person-to-person contacts an individual passenger may have daily; the dynamics of passenger-to-passenger, passenger-to-crew, crew-to-passenger, and crew-to-crew intermingling in semi-closed settings; frequent events that bring passengers and crew close together, including group and buffet dining, entertainment events and excursions; cruise ship cabins are small, increasing the risk of transmission between cabin mates; close quartering for crew, who typically eat and sleep in small, crowded spaces; infection of crew may lead to transmission on sequential cruises on the same vessel; crew from one ship may in turn serve on-board multiple different ships for subsequent voyages, potentially amplifying transmission; the difficulty of de-contaminating numerous surfaces and common areas; the high volume of people on-board a cruise ship and wealth of high-touched surfaces make successful control of fomite transmission very difficult; quarantine and isolation measures are difficult to implement effectively on board a cruise ship; if a ship is at capacity, it may not be feasible to fully separate ill and well persons on board the ship, particularly among the crew; and because crew are required to continue working to keep a ship safety operating, effective quarantine for crew is particularly challenging. [PUB.010.003.0001]

124    In the light of all of the above, I have no hesitancy in finding that cruise ships are peculiarly susceptible to coronavirus infection and transmission and compare very poorly with the community generally in that regard, and that the respondents knew that. The respondents’ contentions to the contrary are rejected.

B.6    The Ruby Princess voyage RU2007

B.6.1    Communications with passengers

(1)    Cruise Personalizer

125    Passengers were required to log in to the respondents’ “Cruise Personalizer” portal some time before their cruise. On doing so, they were shown a notification signed by Jan Swartz as President of Princess Cruises. The notification was headed “Our Commitment to Safety” and included the following: [LAY_SKA.001.001.0083 [43]; LAY_SKA.001.001.0273 pp 20-21]

When you sail with Princess, you entrust us with your safety, and we take that responsibility very seriously. Nothing is of greater importance than the safety and security of our guests.

Our fleet operates under a safety management system that is certified under the International Safety Management Code and provides the foundation for operating our Safety, Health, Environmental and Security programs; we are vigilant in our dedication to these.

(2)    Emergency Notification

126    On 24 February 2020, passengers for the forthcoming cruise were sent an “Emergency Notification” (that being its heading) by the respondents that included the following: [LAY_SKA.001.001.0273 p 22]

IMPORTANT NOTICES

We’re monitoring the situation with the coronavirus that originated in mainland China, and our medical experts are working with global health authorities. As a precaution, anyone who has traveled [sic] from or through mainland China, Macau or Hong Kong (including airport transits), or has had contact with a suspected or confirmed case of coronavirus (2019-nCoV) within 14 days of the start of this cruise will not be allowed to board the ship. If this applies to you or your client, please contact us with proof of this travel for a full refund of the amount paid to Princess Cruises. All guests will also be subject to pre-boarding health reporting and enhanced screening at check-in. Due to changing circumstances, it is possible that authorities in the countries on your cruise may change their entry requirements on short notice. Please check all entry requirements prior to your arrival to the ship to ensure you are not impacted. Guest passports will be scanned to verify compliance. False responses on forms will result in immediate debark at the next opportunity, and you may face legal consequences. We may change requirements to safeguard guests and crew.

(3)    Dear Henry email

127    On or about 5 March 2020, passengers received an email (addressed, in the case of the Karpiks, to “Dear Henry”) from Ms Swartz reaffirming the respondents’ commitment to the health and safety of their passengers, offering a refund for cruises departing on and from 9 March 2020 (being the day after the Ruby Princess was scheduled to and did depart), and encouraging even those passengers to keep their booking by offering them onboard credits: [SKA.001.001.0017]

We continue to implement increased monitoring, screening and sanitation protocols to protect the health of our guests, crew and the residents of the destinations we serve. Our measures are designed to be flexible to adapt to changing conditions and recommended best practices. For your reference, you can read our Guest Travel Advisory.

Nevertheless, we know you have questions about your upcoming cruise. Princess would like to share some policy updates that provide options and flexibility should you want to reschedule your currently booked vacation that sails between now and May 31, 2020.

Sailings departing between March 9 and April 3*: booked guests can cancel up to 3 days prior to departure, receive a Future Cruise Credit for 100% of the cancellation fee amount, and move your booking to any voyage that departs by December 31, 2021.

…

We appreciate your loyalty and look forward to welcoming you onboard.

128    Email communications between the respondents’ different brands show that there were “no issues” with making the policy change with regard to full refunds in the form of Future Cruise Credits effective immediately (ie, from 5 March) other than a concern about it generating too many calls to customer services. No witness from the respondents dealt with this policy change so no one could be asked about it. In the absence of any explanation from the respondents, I infer that there were no operational impediments to allowing cancellations on RU2007 with full refunds and that the principal reason for not doing so was financial. I return to this issue in section F.4.2 below. [PCL.001.005.6798]

B.6.2    Prior to check-in

129    As I deal with in more detail in section B.8.1 below, the scheduled boarding for RU2007 on 8 March 2020, which should apparently have commenced in the morning, was delayed until the evening because of the health screening that was necessary for passengers disembarking from RU2006 and for cleaning the vessel.

B.6.3    Pre-embarkation screening

130    On 7 March 2020, Traveller’s Health Declarations consistent with Revision 5 were sent to the printer for use during boarding for the voyage on 8 March 2020. On 8 March 2020, the Hotel General Manager on the Ruby Princess had another version of the Traveller’s Health Declarations prepared which added Indonesia and Cambodia to the countries listed in question 3, to be consistent with the countries of interest previously identified by NSW Health. Both versions came to be used during embarkation on 8 March 2020.

131    On 8 March 2020, embarkation for the voyage on Ruby Princess was carried out apparently consistently with the requirements of Revision 5. Ms Loren Budd, Customer Services Director on the Ruby Princess, gave evidence as to the printing of the Traveller’s Health Declarations for use in boarding RU2007 and as to witnessing the screening process of passengers prior to boarding. Ms Budd deposed to having seen passengers being provided with the Traveller’s Health Declaration by shore-side staff, with some guests required to proceed to an area separated by a screen. [LAY_RES.001.001.0433] Ms Budd’s evidence concerning the pre-boarding screening process was not challenged in cross-examination and I accept it.

132    Thirty-four guests were denied boarding based on their answers to the questions posed in the Traveller’s Health Declarations completed by passengers and crew prior to embarkation. Fifty-nine guests who had transited through Singapore underwent secondary health screening and were thereafter permitted to board. [SBM.020.004.0001 [46], [360]] That secondary screening involved being asked to declare whether in the past 14 days the person (or any children under the age of 18 travelling with them) had experienced fever, cough or difficulty breathing, and being assessed by a Registered Nurse from the ship’s medical team, which involved a person’s temperature being taken, any reported respiratory symptoms being reviewed, and a form being completed by the Registered Nurse entitled the “Novel coronavirus (2019-NCoV) patient investigation form.” [CRT.500.004.0001 [107G], [107H]]

133    The 59 passengers who were subjected to additional screening had all reported recent travel through Singapore. Fifty-eight passengers reported that they had transited through Singapore for a period of between 30 minutes and 3.5 hours, and 1 passenger reported that they had travelled through Singapore and Indonesia 6 weeks prior to RU2007 but had subsequently travelled back to the United States. Each of the 59 passengers had a recorded temperature of between 35.8 and 37.25 degrees Celsius (ie, normal). None of the passengers reported experiencing fever or chills, a cough, shortness of breath or difficulty breathing, except for one guest who reported a cough due to chronic bronchitis and was referred to an independent medical practitioner, who issued the passenger with a medical certificate. All 59 passengers who underwent the additional screening were permitted to board. [CRT.500.004.0001 [109], [109A]]

134    There is no evidence, one way or the other, with regard to the extent to which the information provided by passengers in their health declarations against any travel history apparent in their passports was checked.

135    No temperature screening was conducted other than in connection with the supplementary screening of the 59 passengers already referred to.

136    For completeness, it should be mentioned that crew that were due to join the vessel for RU2007, having not been on RU2006, were also screened prior to boarding based on their Traveller’s Health Declarations. Three crew were denied boarding and arrangements were then made for them to return to their home countries. Some crew who had been due to join the vessel were advised that they would not be allowed to board in time for them to not even leave their home countries to fly to Australia. [LAY_RES.001.001.0593]

B.6.4    Medical supplies

137    Despite the efforts of the ship’s personnel to order additional swabs and masks in advance, when the Ruby Princess departed from Sydney on 8 March 2020 it had in stock only 27 viral swabs, a limited number of rapid influenza testing kits (each of which contained a viral swab) and approximately 250 surgical face masks. [CRT.001.001.0275 [84]; CRT.001.001.0408 [84]] Orders had been placed for further supplies to be delivered on board during the voyage, but none materialised, at least in part because the lead-in time for such orders was 2-4 weeks. [GEN.001.001.4763]

138    Emails from the ship’s medical personnel indicate that they appreciated that the ship sailed with inadequate medical supplies in the respects mentioned. In particular, only 250 disposable face masks for a ship with about 3,800 people on board for a 13-day cruise in the circumstances of the evolving, at that time, epidemic, was hopelessly insufficient. For example, on 9 March 2020, two passengers who had transited through Singapore and had airway infections were suspected of having COVID-19. When asked how many masks could be provided “for situations like this”, Dr von Watzdorf, the Senior Physician on board the Ruby Princess, responded that she had no masks to give out and that they had almost run out following the events of the previous cruise. [PCL.001.001.1801] On 10 March 2020, Dr von Watzdorf reported that they had only “a FEW surgical masks left.” [CAU.001.004.3091]

B.6.5    Cleaning, hygiene and sanitation measures

139    The respondents adduced evidence of cleaning, hygiene and sanitation measures that were deployed on board the Ruby Princess in answer to Mrs Karpik’s claims that the risk of COVID-19 could have been avoided or reduced by ensuring that the ship was “thoroughly cleaned” prior to the passengers boarding on 8 March 2020 and by “adequately cleaning” the ship during the voyage RU2007, requiring passengers and crew to engage in hand washing and sanitizing, and preventing self-service and communal service of food. [CRT.001.001.0275 [42(a)], [43(a)-(e)]] The evidence of the respondents’ general cleaning, hygiene and sanitation procedures included evidence about procedures adopted on “turnaround” days (when one voyage disembarked and another voyage embarked, relevantly in this case, the “turnaround” of RU2006 on 8 March 2020).

140    Mr Artur Ferreira, Acting Executive Housekeeper, gave evidence that the sanitation and cleaning procedures applicable to the Ruby Princess were guided by a classification system which determined what processes were to be followed, the dilution of cleaning chemicals and the frequency of sanitation and cleaning [LAY_RES.001.001.0199 [27]]. Mr Ferreira explained that the classification system involved the following sanitation levels:

(1)    Baseline level (or Green level), which required standard cleaning procedures;

(2)    Elevated level (or Yellow level), which required increased concentration of chemicals and increased frequency of sanitation and cleaning; and

(3)    Maximum level (or Red level), which required maximum chemical concentration and continuous and consistent sanitation of all areas of the ship.

141    The primary chemical used by the respondents to clean and sanitise non-food areas on the Ruby Princess was Virox, which was dispensed through a machine located in a chemical locker on Deck 4, and which was managed by the Crew Supervisor. The concentration of Virox dispensed via the chemical locker depended upon the sanitation level at which the ship was operating at any given time, with Green demanding the lowest concentration and Red the highest. Mr Ferreira gave evidence that the Virox dispenser operated in such a way that Red levels of Virox could be dispensed at any time (because Red level Virox was continuously used by certain medical and specialised employees irrespective of the prevailing sanitation level), but that only one of the Yellow level or Green level Virox solutions could be dispensed at any one time because the level not in use was required to be locked by the Crew Supervisor. Changes to the Virox dispenser were recorded in a log. [LAY_RES.001.001.0199 [39]-[45]]

142    The Virox log appears to show that on 7 March 2020, Virox solution was dispensed at only the Baseline and Maximum levels. From 8 March to 14 March, Virox solution was dispensed at only the Elevated and Maximum levels. [LAY_RES.001.001.0187] Given the explanation that a Red level dispenser was always available, this indicates that the general sanitation level was raised from Green to Yellow from 8 March 2020. That change was confirmed by the witness evidence.

143    The Virox log appears to show a further raising of the sanitation level on board the Ruby Princess from 16 March 2020 to the Maximum or Red level. The ship appears to have remained at Maximum sanitation level for at least the remainder of March. Witness evidence and internal emails confirm this change at that time. Although there was a challenge to some of the evidence of Mr Claudio Iezzoni, Food & Beverage Supervisor, on this issue in cross-examination, Mrs Karpik makes nothing of it in closing submissions and I accept the witness’s evidence.

144    As noted above (see [105]), the respondents introduced “Enhanced Public Health Protocols” from 7 March 2020 that Hotel General Manager Mr Verwaal asked staff on board the Ruby Princess to adhere to. [CAU.001.001.0012; CAU.001.001.0013] The Enhanced Public Health Protocols called for staff on board to, among other things:

    Engage in daily communication with all crew reinforcing use of appropriate PPE, frequent hand washing with soap and running water for at least 20 seconds, avoid hand contact, follow sanitising standards, refrain from serving drinks to guests in reusable tumblers, encourage crew to report any guests who may show signs of illness (coughing, sneezing, runny nose, etc);

    Enforce hand washing at all crew food venues;

    Monitor hand washing at food venue entrances and administer hand sanitiser or direct guests to wash their hands at nearest available sinks;

    Increase availability of hand sanitiser dispensers at food outlets;

    Increase frequency of sanitising for high traffic hand touch surfaces in public areas especially during crowd gathering events;

    Enhance sanitation of frequent touch points (ie, hand rails, door handles, chairs, stools, tables, bar counters and gangways);

    Provide small/portable hand sanitiser in each guest stateroom; and

    Prop open doors to all public lounges and restrooms to reduce door handles hand touch.

145    The respondents’ policies describe the responsibilities of various members of staff, and outline detailed procedures to be followed and cleaning chemicals to be used, including when cleaning particular areas of the vessel such as bathrooms and the medical centre. [RES.001.001.0215]

146    In addition to standard cleaning of public and accommodation areas, there was a “Hit Squad” of crew members who attended to the particular cleaning and sanitation of areas in which there had been a public health incident, such as cabins in which guests had been isolating due to illness. [LAY_RES.001.001.0176 [16]] The Hit Squad was required to use Red level concentration of Virox when cleaning affected areas. [LAY_RES.001.001.0199 [52]-[53]]

147    Affidavit evidence adduced by the respondents speaks to the cleaning and sanitation that occurred on board RU2007. Mr Ferreira gave evidence that in view of the Enhanced Public Health Protocol, he directed staff to frequently sanitise high touch points on board, frequently wash hands, and wear appropriate PPE when attending to cleaning duties. [LAY_RES.001.001.0199 [77]] Ms Javier, Assistant Housekeeper, gave evidence that, in line with the elevated sanitation level prevailing on RU2007, she instructed her staff to implement, and she personally observed, increased sanitation frequency of touch points such as elevator buttons, handrails, toilets, stairs, chairs, armrests, door handles and bars. [LAY_RES.001.001.0176 [46]-[48]] In respect of food and beverage areas, Mr Iezzoni gave evidence about the provision of hand sanitiser to guests and the regular sanitisation of dining tables. [LAY_RES.001.001.0001 [45]-[54]] I accept all that evidence.

B.6.6    Hand hygiene

148    The respondents adduced evidence of particular measures taken to encourage hand hygiene in view of Mrs Karpik’s pleading that the risk of transmission of coronavirus could have been avoided or reduced by requiring passengers and crew to wash their hands or use appropriate hand sanitiser when entering or leaving public areas, preventing the self-service of food by passengers and the use of common implements and communal bowls.

149    One such measure was the stationing of crew and hand sanitiser dispensers in appropriate areas. Mr Iezzoni gave evidence that staff were stationed at the entrances to dining areas and directed to request that passengers sanitise their hands prior to entering using nearby dispensers. According to Mr Iezzoni’s evidence, this was standard practice even when the ship was operating at Green level sanitation. Consistently with the Enhanced Public Health Protocol circulated by Mr Verwaal, Mr Iezzoni gave evidence that, on RU2007, changes were implemented to the service of food such that guests were not required to touch any utensils or condiments at the buffet line but would instead be assisted by staff. [LAY_RES.001.001.0001 [45], [74], [103]-[109]] I accept this evidence.

150    Passengers who travelled on RU2007 gave varying evidence of whether they witnessed staff directing passengers to sanitise their hands. For example, Ms Dianne Carroll, a passenger on RU2007 and group member, gave evidence that staff were ensuring that passengers sanitised their hands before entry to food service areas and in cross-examination confirmed that staff stood in entrance ways and directed guests to hand sanitisers (T129). [LAY_SKA.002.001.0001 [80]] However, Mrs Karpik gave evidence in cross-examination that she witnessed passengers in food service areas failing to sanitise their hands and serving themselves with shared utensils (T183). Similar evidence was given by Ms Carmel Avis that although she observed a staff member encouraging passengers to sanitise their hands before attending the buffet, some passengers did not do so, and some passengers served themselves with shared utensils. [LAY_SKA.002.001.0061 [16]-[26]] I accept that the staff did generally direct passengers to sanitise their hands, although some passengers sometimes ignored such direction.

151    Another measure directed toward hand hygiene was directions and reminders given to crew and passengers to sanitise their hands. In addition to the Enhanced Public Health Protocol referred to above, communications reinforcing the importance of hand washing were made to crew via email, public health and safety training sessions, briefings, and signage in crew areas. [PCL.002.036.1115; LAY_RES.001.001.0355 pp 13-14; LAY_RES.001.001.0028 [13]-[16]; LAY_RES.001.001.0016 [40]-[42]; LAY_RES.001.001.0016 [43]]

152    In respect of the passengers, the respondents distributed written guidance during the cruise which contained recommended hand hygiene practices. One such written guidance was a letter entitled “Coronavirus Health Advisory”, which Ms Carroll deposed to having received on or about 11 March 2020, which recommended, as a precaution, that passengers “[w]ash [their] hands often with soap and water for 20 seconds, and help young children to do the same. Where soap and water are not available, use an alcohol-based hand sanitizer.” [PCL.002.006.4418; LAY_SKA.002.001.0001 [53]] Similar advice was contained in the daily “Princess Patter” newsletter distributed to guests on 17 March 2020. [SKA.005.001.0078]

153    Mr Verwaal also gave unchallenged evidence that he heard multiple announcements on board reminding guests to wash their hands. [LAY_RES.001.001.0342 [47(d)]]

B.6.7    Physical distancing

154    Mrs Karpik claims that the respondents should have introduced physical distancing on board the Ruby Princess and failed to do so. [CRT.001.001.0275 [42(l)], [43(f)], [43(g)]] Apart from the cancellation of the Ultimate Ship Tour and Galley Tour on RU2007 as directed by the respondents’ Enhanced Public Health Protocol, a measure which appears to have been taken to avoid having guests in crew areas, there is no evidence that the respondents encouraged or implemented any meaningful physical distancing. [LAY_RES.001.001.0355 pp 20, 33-34]

B.6.8    Management of persons with respiratory symptoms

155    In answer to pleaded deficiencies concerning the respondents’ management of persons with respiratory symptoms on board, the respondents adduced evidence of their standard practices for managing passengers and crew presenting with symptoms consistent with ARI or ILI and also of particular practices adopted on RU2007.

156    The respondents maintained a policy entitled “PHS-1120 – Management of Acute Respiratory Disease (ARD)” which set out the procedures to be followed with regard to the medical management of individual cases of ARD and the prevention and control of influenza outbreaks. [CAU.001.018.0173] The policy addresses the definitions of ARI and ILI, required sanitation response to the presence of ILI on board, reporting and record-keeping requirements (including the maintenance of the ARD log), and recommended treatment and management steps. Under the heading, “Medical Management”, the policy provides as follows:

    All patients who report to the Medical Center with ILI symptoms should be triaged appropriately and separated from other patients. Illness transmission can be significantly reduced if patients are also provided a surgical mask to wear.

…

    All patients who meet the ILI case definition should be isolated for at least 24 hours post resolution of fever, not influenced by the use of antipyretics, and major symptoms.

…

    Isolation is not required for patients who meet the ARI case definition.

…

    Management of the case should be completed in accordance with PHS-1105 Case Management of Communicable Illness.

157    The policy entitled “PHS-1105 Case Management of Communicable Illness”, under the heading “General Management” provides that: [CAU.001.018.0225]

Appropriate and standardized clinical management of any patient must take precedence over any other measures. If the clinical condition necessitates, patients should be treated in isolation in the Medical Center.

…

Patients in isolation (either in cabin or in Medical Center) must be given:

    Written instructions on isolation requirements and services available during isolation

    Written hand washing information and any other relevant health advice

…

All patients in isolation must be followed up on a daily basis by a member of the medical staff. The follow up must be documented and include:

    Identifying any new symptoms

    General well-being

    Anticipated time of release from isolation

158    When a passenger was placed into isolation, crew in the Food & Beverage, Security and Accommodation departments were notified via email to ensure that the person received meals in their cabin, the Hit Squad sanitised the person’s cabin, and that medical staff were informed if the person was not in their cabin. An email of this kind was sent to crew in respect of Mr Karpik being placed in isolation on 17 March 2020. [CAU.001.004.4473]

159    Under the “PHS-1120 – Management of Acute Respiratory Disease (ARD)” policy, the use of PPE by medical staff was governed by the policy “Med-3601 Infection Control.” [CAU.001.018.0002] That policy provided that the use of PPE is “essential for the health and safety of medical staff to reduce risk of transmission of microorganisms” and directed that the selection of appropriate equipment should be based on “the nature of the patient interaction, the suspected infectious agent and the risk of contamination of the healthcare worker’s clothing, skin, and mucous membranes.”

160    During RU2007, the respondents directed passengers and crew to contact the medical centre if they were experiencing respiratory symptoms, including via an announcement made over the ship’s PA system. [CRT.500.004.0001 [119]; RES.001.001.0215 p 115 (“Health Advisory – Coronavirus”), CAU.001.011.7910; LAY_SKA.001.001.0083 [116]] As at 19 March 2020, 124 persons, including Mr Karpik, were listed on the ARD log. [CAU.001.003.0021] Charges incurred by passengers who presented to the medical centre with symptoms consistent with ARI or ILI were waived by the respondents. [CAU.001.004.4480]

B.7    Mrs Karpik’s evidence

B.7.1    Introduction

161    Mrs Karpik deposed to three affidavits which were read in the proceeding as her evidence in chief. She was cross-examined at length by senior counsel for the respondents on issues relevant to liability and, with leave, by junior counsel for the respondents on issues relevant to her medical history and quantum.

162    As will be seen, Mrs Karpik’s affidavit evidence and her evidence in cross-examination, and indeed on occasion different parts of her evidence in cross-examination, were at times inconsistent. I do not take Mrs Karpik to have been wilfully dishonest. Her experience of the cruise and its aftermath, in particular, were highly stressful for her and indeed traumatic. Thereafter there was considerable publicity about the problems on the cruise, including a public inquiry, much of which was streamed live and some of which was watched by her (T172:35). It is therefore perhaps unsurprising that her recollection of events may have been superimposed with things she learnt later. Moreover, she has a clear belief in the justness of her case, her enthusiasm for which may also have infected the reliability of her evidence.

163    In those circumstances, Mrs Karpik at times gave evidence – both in her affidavits and in answer to questions in the witness box – which was inaccurate and even false. As a result, I approach her evidence with caution and in particular look to see whether it is confirmed by, or at least consistent with, other evidence and whether it is consistent with the overall probabilities and human experience.

B.7.2    Background

164    As mentioned, at the time of the cruise in March 2020, Mrs Karpik was 69 years of age and was residing with her husband of nearly 50 years, Henry, in Figtree, an inner suburb of Wollongong, New South Wales.

165    Mrs Karpik has a Diploma in Nursing, a Bachelor of Nursing and a Masters of Science – Mental Health. While she undertook those studies, she was employed by NSW Health Wollongong and Shellharbour services as a registered nurse. She worked in a variety of clinical and management roles within NSW Health for more than 50 years. [LAY_SKA.001.001.0083 [6]-[7]]

166    Mr and Mrs Karpik have four adult children who were born in the 70s and 80s. [LAY_SKA.001.001.0083 [5]]

167    From about 2015, Mrs Karpik retired from full-time nursing and worked on a part-time basis as an Official Visitor under the Mental Health Act 2007 (NSW). That role required her to regularly visit a selection of mental health facilities to engage with consumers, carers and healthcare providers to ensure the provision of humane and respectful services in line with contemporary clinical practice standards. By March 2020, she was working seven to eight days per month, seven to eight hours per day. [LAY_SKA.001.001.0083 [10]]

168    Mr and Mrs Karpik have a long history of taking holidays together on cruise ships. By the respondents’ records, Mrs Karpik had undertaken nine Princess cruises since 2008, with a total of 114 cruising days. Mrs Karpik said that she and her husband had undertaken approximately 11 cruises together. [LAY_SKA.001.001.0083 [25]; T135]

169    Mrs Karpik first learnt of the cruise from a Princess Cruises brochure and advertisements she received via email. By the time of trial, Mrs Karpik no longer had copies of the brochure or advertisements and could not recall precisely which brochure she reviewed. However, she had since reviewed a number of Princess Cruises brochures for cruises in Australia and New Zealand around that time and confirmed that they are similar to the brochure she reviewed before booking the cruise. Unsurprisingly, the brochures present images of a relaxing and pleasurable holiday experience. They also use the respondents’ registered trade mark, “come back new.” [LAY_SKA.003.001.0047 p 2]

170    The Karpiks’ tickets for the cruise were booked via Travel Associates travel agency on 5 September 2019. The total cruise price was $8,746.00, with $2,208.13 being paid on deposit at the time of booking. [LAY_SKA.001.001.0083 [39]] Mrs Karpik received a booking confirmation by email from the respondents dated 9 December 2019 which set out the details of the booking. [LAY_SKA.001.001.0273 p 18]

171    It is common ground that the Karpiks’ booking was subject to particular terms and conditions with Carnival. I will return to those where relevant.

B.7.3    Knowledge of risk

172    In paragraph 48 of her first affidavit, Mrs Karpik said the following: [LAY_SKA.001.001.0083 [48]]

I had assumed that Princess Cruises would be extra vigilant on our Voyage, and have good strategies in place to reduce the risk of a Coronavirus outbreak. I assumed that if any risk in relation to Coronavirus existed, they would cancel the Voyage so as not to repeat the events of the Diamond Princess.

173    Those two sentences are in tension with each other in as much as the first speaks of the respondents having strategies to “reduce the risk” of a COVID-19 outbreak, which implies that the cruise would go ahead even if there was some risk, and the second says that if there was any risk of such an outbreak the respondents would cancel the cruise. Fairly read, the paragraph must be understood to say that the cruise would be cancelled if there was any material or significant risk, rather than any risk at all.

174    Mrs Karpik also said in her first affidavit that, in the weeks leading up to the voyage, she followed the news closely and had many discussions with her family, many of whom are health workers, about the potential threat of coronavirus. [LAY_SKA.001.001.0083 [45]] In relation to her family members, one of her daughters-in-law was working as a secretary to a cardiologist and two of her daughters were registered nurses, one of whom was married to a consultant in the emergency departments at a number of hospitals (T137). In cross-examination, she said that her son-in-law had questioned whether her and her husband’s decision-making with regard to going on the voyage was sensible and whether they had thought about the risk of coronavirus. He told them that cruise ships, from his perspective, were “petri dishes” and the risk of infection was high for any illness or any condition. He said that he was aware of what happened on the Diamond Princess (T140:35).

175    In that context, including that she was herself qualified and had worked as a nurse, it is no surprise that in her first affidavit Mrs Karpik said that she had “a heightened awareness of the risk of transmission of infectious diseases such as Coronavirus.” Mrs Karpik also said in her affidavit that during the trip to Circular Quay, she and her travelling companions had a conversation regarding the potential risk of coronavirus on the voyage. She gave advice to the others on a range of personal protective strategies she believed that they should use during the voyage. [LAY_SKA.001.001.0083 [55], [65]]

176    In those circumstances, Mrs Karpik must have understood and appreciated that there was some risk of a coronavirus outbreak on the cruise. She could not reasonably or credibly have thought or understood that there was no risk of coronavirus on the cruise. In my assessment, Mrs Karpik maintained her “no risk” position in cross-examination in order to defend what she had said in the second sentence of paragraph 48 of her first affidavit and because, in the heat of the moment under cross-examination, she perceived that to be advantageous to her case.

177    Time and again in cross-examination, Mrs Karpik said that she thought that there would be no or zero risk to passengers on the cruise (T145:10, T147:23, T148:29, T148:40, T151:43). She also said that she believed that the respondents had a system that could eliminate the risk of coronavirus (T148:46). In view of her training and her knowledge about infectious diseases, including coronavirus, and what her son-in-law had said to her, those answers lack any credibility. I do not accept them. The truth is that Mrs Karpik knew there to be a risk, but she thought that the respondents would take all reasonable measures to minimise the risk and, if they were unable to do so, they would cancel the cruise. That is to say, she took comfort from the reassuring communications from the respondents and that the cruise was going ahead.

178    At one point in cross-examination, Mrs Karpik answered affirmatively to the proposition that when she and her husband decided to go on the cruise on 8 March 2020, they did so accepting that there was a risk that either or both of them could be infected with coronavirus (T150:43). The respondents sought to make much of this on the basis that it meant that her “no risk” position in the second sentence of paragraph 48 of her first affidavit and in earlier answers in cross-examination was incorrect. When pressed, Mrs Karpik stuck with her “no risk” position and explained her affirmative answer to her and her husband having accepted “a risk” when they went on the cruise as arising from her having misunderstood the question – having thought that it referred to influenza and not coronavirus (T153:26). Such a misunderstanding is credible because the question followed a sustained series of questions about norovirus and influenza, without drawing particular attention that the subject matter was reverting to coronavirus. However, it remains incredible, and I do not accept, that Mrs Karpik thought that there was no risk of coronavirus on the cruise. In boarding the vessel, Mr and Mrs Karpik inevitably accepted some risk of coronavirus on board.

179    In her attempts to explain her agreement that she and her husband had accepted that there was a risk of coronavirus on the voyage, Mrs Karpik said that she believed that if there was “any evidence” of coronavirus on the ship, or if the respondents “were aware” that there was coronavirus on the ship, then they would have cancelled the voyage or at least informed passengers so that they could make their own decision (T152:8-34). I accept that evidence. It is sensible and stands to reason. It is not in conflict, or even tension, with her understanding, as I have found, that there was some risk of the virus being on the cruise.