Reference no: EM131683

Gary and Sally decided to go on a holiday. They consulted their local tour company, Fly by Night Tours, who advertised a 7 day white water rafting holiday on the Goulburn River in Northern Victoria. The sales person for Fly by Night Tours, Brian, showed them a brochure that stated the following:

"Your Goulburn River white water rafting holiday is the ultimate holiday adventure. You will be accompanied by experienced tour guides who will endure your experience is safe as well as exciting."

When Gary read this he asked Brian whether there was any risk in rafting on the Goulburn River. Brian replied that the tour had operated for 5 years and that in that time there had never been any problems or safety issues. Gary also asked what accommodation would be available over the seven days. Brian replied that each evening they would stay in "Five star accommodation at each stopping point on the river." When Gary and Sally said they would like to proceed with the holiday they were shown a short written contract that included the following exclusion clause:

"Fly by Night Tours takes no responsibility for any personal injury sustained on your holiday and is not responsible for any losses or expenses arising from actions not within the control of Fly by Night Tours."

Gary and Sally sign the written contract and eagerly look forward to their holiday. Unfortunately their holiday experience turned out to be a disaster. Their tour guide turned out to be a teenage boy who had only been down the river once before. Their boat proves to be unreliable and they are frequently tipped out of the boat. On one such occasion Sally sustains a bad injury to her arm requiring medical attention. Their accommodation proves to be anything but "Five Star" and is nothing more than rough cabins with inadequate facilities. By the end of the tour they are very disappointed and angry at their experience.

You are asked to advice Gary and Sally about what options they have under contract law against Fly by Night Tours. In your answer ensure you advise Gary and Sally about all relevant terms of the contract, and what remedies can be available to them. Refer to relevant case law in your answer