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  • In Moore v Scenic Tours Pty Ltd, the High Court has clarified that mere injured feelings are not personal injury under the Civil Liability Act.
  • The Court also concluded that the meaning of ‘non-economic loss’ in s 16 means pain and suffering or loss of amenities consequent on personal injury, confining the definition to a traditional common law understanding.
  • The Court confirmed that Baltic Shipping damages for a disappointed holiday are separate and distinct from non-economic loss damages for personal injury, however, they may be subsumed into an assessment under Civil Liability Act s 16 if a claim in respect of a holiday contract includes a claim for personal injury.

In the April edition of LSJ, I wrote that the High Court’s decision in Moore v Scenic Tours Pty Ltd [2020] HCATrans 7 was keenly anticipated because it would clarify whether the definitions of ‘injury’ and ‘non-economic loss’ in part 2 of the Civil Liability Act 2002 (NSW) (‘CLA’) encompassed mere injured feelings caused by a defendant’s wrong. The High Court has since published Moore v Scenic Tours Pty Ltd [2020] HCA 17 (‘Moore’), in which it unanimously held that mere injured feelings are not personal injury.

History of proceeding

In this case, Mr Moore paid Scenic Tours (‘Scenic’) for a ‘once in a lifetime’ luxurious cruise along ‘Europe’s most famous waterways’. However, unprecedented flooding forced Scenic to radically change the promised itinerary. Mr Moore spent only three of the ten days cruising. He spent much of his time uncomfortably travelling by road and was forced to change cruise ships at least twice, which aggravated a pre-existing back injury. He was, unsurprisingly, bitterly disappointed by the experience. In Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733, Mr Moore sued Scenic under the Australian Consumer Law (‘ACL’) for breaching three statutory guarantees in respect of Scenic’s service. Relevantly, the trial judge awarded Mr Moore $2,000 for distress and disappointment, under the authority of Baltic Shipping Co v Dillon (1993) 176 CLR 344 (‘Baltic Shipping’). Baltic Shipping holds that a plaintiff may be awarded non-economic loss damages to compensate disappointment or distress caused by a breached promise in a ‘holiday contract’ to provide pleasure or relaxation.

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