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In an age where time is of the essence and personal schedules are tightly packed, the reliability of transportation services is paramount. Late departures by trains, buses, flights, and other means of transportation have become a common concern for consumers around the world.
The rights of consumers when faced with tardy departures are not to be taken lightly. We rely on transportation providers to get us from point A to point B safely, efficiently, and within a reasonable timeframe. When these expectations are not met, it can lead to inconvenience, missed connections, additional expenses, and even emotional distress. Therefore, understanding and asserting our rights as consumers in such situations is crucial.
In this article, we will delve into the rights and protections that passengers have under the Consumer Guarantees Act 1993 ("the Act") when confronted with late departures by transportation service providers.
Under the Act, consumers have a right of redress against suppliers for breaches of the implied guarantees under the Act. In respect of the supply of services, the guarantees apply whenever services are supplied to a consumer.
Transport services fall within the definition of "supply" and "services" under the Act. A passenger is a "consumer" for the purpose of the Act if they acquire the transport services for personal, domestic or household use.
Generally, airline services, ferry, train, and bus services are acquired for personal use. Passengers who acquire those services for business use will also be covered by the Act unless the transport operator has contracted out of the legislation.
If a transport service is delayed, the transport provider may be in breach of the Act. In particular, it may be in breach of the guarantee as to reasonable care and skill and/or the guarantee as to fitness for purpose.
Under the Act, a transport provider is deemed to have promised to a passenger that its services will be carried out with reasonable care and skill.
If a transport provider experiences a delay due to a lack of reasonable care and skill in the provision of its service, the delay would likely constitute a breach of the guarantee as to reasonable care and skill. Conversely, if the delay results from other factors like adverse weather conditions or unforeseeable mechanical issues, the transport provider is unlikely to be liable, as the late departure cannot be attributed to a failure on the part of provider to exercise due care and skill.
Services must be fit for any particular purpose that a passenger makes known to a transport provider as being the purpose for which those services are required.
In line with the purpose of the Act, it is likely that a passenger is not required to expressly make known to a transport provider that they are acquiring the service so they may arrive at a destination at a particular time. By the very act of acquiring a particular transport service, it is quite obvious that a passenger is acquiring that service for the purpose of arriving at their intended destination at a particular time.
Therefore, where a transport service is significantly delayed, the transport provider is likely to be in breach of the guarantee as to fitness for purpose, even if it exercised reasonable care in the provision of the service. However, if the delay was caused by an action or omission by any other person than the provider, or a cause independent of human control, the provider is not liable under the Act.
The remedies available to a passenger under the Act depend on whether the failure can be remedied. Clearly, delayed travel is not something that can be remedied. Where the failure cannot be remedied, a passenger is entitled either to cancel the contract or to obtain damages from the provider to compensate for any reduction in value of the product of the service.
If a passenger elects to cancel the contract, they are likely entitled to recover a full refund of the money paid for the journey. However, the Act recognises that there are situations where it is just to permit a transport provider to retain part or all of the money paid. This necessitates a consideration of, among other things, any benefit or advantage obtained by the passenger. A Court or Tribunal may permit a provider to retain the portion of the payment that corresponds to ensuring a passenger's safe, albeit late, arrival.
In addition to a full or partial refund, a passenger is also entitled to recover any reasonably foreseeable consequential losses resulting from the delay. Examples of such losses may include the cost of any missed connecting flight or transport, or the cost of any additional accommodation. Whether a loss is reasonably foreseeable depends on the particular facts of a case.
Understanding one's rights and entitlements as a consumer when faced with late departures in the realm of transportation services is pivotal. The Act provides a legal framework to ensure that the expectations of passengers are met, even in the event of unforeseen delays. By being informed and empowered, passengers can navigate such situations with confidence, ensuring that their journeys are not only safe but also fair and just.
If you would like to discuss consumer rights or other matters related to this article, please contact:
Email: candrews@mcveaghfleming.co.nz
DDI: 09 306 6745
© McVeagh Fleming 2023
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.
