Jack and Thea are a retired couple who have been booking their holidays through a small travel agent called Gail’s Travel for nearly 20 years. They have come to trust Gail’s advice about suitable holidays over the years – in particular because they know Gail usually takes the holidays herself before recommending them to clients. In June 2015, Jack and Thea visited Gail to book another holiday, and told her that they ‘want to see a bit more of the Australian desert before [we] get too much older …’. Gail suggested a bus tour to and around Broken Hill with Priscilla Tours Pty Ltd (‘Priscilla’). Jack and Thea were especially interested when Gail told them the tour visited a number of look-outs that had spectacular views over the desert. Although Jack and Thea were quite fit for their ages (88 and 82 respectively) they asked Gail about the amount of activity and walking on this tour. Gail checked the information and maps from Priscilla and told them they would be driven in the bus to each of the look-outs. Gail said that when she did a similar trip in that area there was almost no walking or stairs involved.

Jack and Thea decided to take the 10-day ‘Out Back of Broken Hill’ bus tour in March 2016. When Jack and Thea joined the bus tour in Sydney they were reassured to see that most of the other tourists in the group were around their age. Bob, one of Priscilla’s full time employees, was the tour guide on Jack and Thea’s tour. Although Bob usually took one of Priscilla’s other tours – the ‘Outback Adventure Tour’ – with much younger groups, he thought it would be nice change to take a different age group on tour.

Unusually, there were weeks of torrential rain around Broken Hill in March of 2016. Priscilla’s bus tour had to take a number of detours as roads were closed due to flooding, and as a result all the look-out visits had to be missed. Jack and Thea were very disappointed about missing the look-outs. They and several of the other tourists asked Bob whether there was anything else he could arrange that would allow them to see some of the desert views they had been looking forward to. On their last day in Broken Hill, Bob went out just before dawn to look for a suitable view, and came back to breakfast with the news that he had found a spectacular view ‘quite close’ to the hotel they were staying in. He offered to lead a group out after breakfast to see the view, and advised that there was a climb involved as the hill was ‘a little bit steep, but if you can walk up a staircase without help I think you should be alright’. Jack, Thea and many of the others agreed to go on the walk with Bob.

Unfortunately, the walk was steeper and longer than many of the tourists expected, and there were a lot of loose rocks on the trail leading up the hill as well as some very slippery sections caused by the rain. Bob, who is 32 and

very fit, had simply not noticed these hazards when he inspected the trail in the early morning light. The walk is also about 3km each way. Most of the other tourists gave up quickly and returned to the hotel, but Jack and Thea persisted as they were determined to see some views of the area and take photographs. Unfortunately, Jack slipped and injured his knee on the way down the hill and Bob had to carry him back to the hotel. Jack was not able to walk without help for the rest of the tour.

When they returned home, Jack and Thea went to see Gail, not to complain, but to let her know that this particular tour was not really suitable for people of their age. Gail was very upset as Jack and Thea are some of her favourite clients and she wondered whether she should have made it clearer to them that she had not actually taken this exact trip herself.

1. a)  Several months have passed and Jack’s knee has not recovered. He may need a knee reconstruction. Is Priscilla Tours liable in negligence for Jack’s injuries? What, if any, defences could they rely on? What would you advise Priscilla to do differently in future? (15 marks)
2. b)  Although Jack and Thea have no intention of suing, Gail is now worried that she could be liable for negligent misstatement for recommending this trip to them. Could she be liable? What would you advise her to do, both now and in the future? (5 marks) Hint – you are not required to repeat the elements and principles of negligence in detail in this part – you can save space by summarising these and cross-referring back to your answer in a) for more detail – focus this part of your answer on the issues relevant to Gail’s advice instead.