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  • Under current NSW authority, it is no longer possible to obtain damages for injured feelings caused by a breach of a promise to provide a relaxing holiday.
  • This is because the NSW Court of Appeal holds that injured feelings are forms of injury as defined in Civil Liability Act, which required the application of s 16 to assess the claim.
  • The High Court will soon decide whether the Court of Appeal’s expansive interpretation of ‘injury’ is correct. This will have ramifications for several other causes of action.

On 11 February 2020, the High Court heard Moore v Scenic Tours Pty Ltd [2020] HCATrans 7, a representative action born out of a luxury European river cruise holiday that turned into a budget bus trip when the Danube was hit by record flooding in 2013. The judgment is eagerly anticipated as it will provide much-needed clarity on the scope of the meaning of ‘injury’, ‘personal injury damages’ and ‘non-economic loss’ in Part 2 of the Civil Liability Act 2002 (NSW), (‘CLA’).

Legislative background

Part 2 of the CLA applies to many – if not most – awards of damages for personal injury in NSW. The NSW Parliament enacted Part 2 as part of its reform of the law of negligence in response to concern that personal injury damages were escalating out of control, and, as a result, insurance premiums were becoming unaffordable. Accordingly, much of Part 2 imposes limits on awards of damages.

Section 11A provides that Part 2 applies to awards of ‘personal injury damages’ regardless of whether the claim is brought ‘in tort, in contract, under statute or otherwise’, unless the award is excluded by s 3B. Section 11 defines ‘personal injury damages’ as ‘damages that relate to the death of or injury to a person.’

Section 11 defines ‘injury’ to mean ‘personal injury’ and includes ‘impairment of the person’s … mental condition.’ Hence, the definition of ‘injury’ for the purpose of Part 2 is not necessarily limited to the common law definition of personal injury, given that the Parliament has defined ‘injury’ to include mental ‘impairment’.

The common law views ‘personal injury’ as physical injury and mental harm consisting of a diagnosable psychiatric condition. Generally, mere injured feelings – such as anger, distress or disappointment – that are not consequent on actual personal injury are not compensable forms of injury in tort or contract. However mere injured feelings can be compensated in limited causes of action, such as trespass to person, defamation or for certain breaches of contract.

Part 2 also contains s 16, which regulates the assessment of non-economic loss damages for pain and suffering, loss of amenity of life, disfigurement and loss of expectation of life in personal injury claims. Section 16 limits the amount that can be awarded for non-economic loss and also provides a mechanism for assessing the award, by requiring the court to evaluate the plaintiff’s condition as a percentage of a hypothetical ‘most extreme case’. Crucially, if the plaintiff’s condition is less than 15 per cent of a most extreme case, then the plaintiff does not receive any non-economic loss damages.

Injured feelings as personal injury

In 2010-2011 a series of three cases – Insight Vacations Pty Ltd v Young [2010] NSWCA 137 (‘Insight Vacations’); New South Wales v Corby [2010] NSWCA 27 (‘Corby’); and Flight Centre Ltd v Louw [2011] NSWSC 132 (Flight Centre’) – established the following propositions concerning the scope of the meaning of ‘injury’ in s 11 and ‘non-economic loss’ in s 16.

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