‘Plain Sailing’?: Damages for Distress under the ACL and the Performance Interest in Contract

Elise Bant, Katy Barnett and Jeannie Marie Paterson
(2020) 36 Journal of Contract Law 272

Elise Bant, Katy Barnett and Jeannie Marie Paterson, ‘‘Plain Sailing’?: Damages for Distress under the ACL and the Performance Interest in Contract’ (2020) 36 JCL 272

Abstract

The Civil Liability Act 2002 (NSW) (CLA) provides that damages for non-economic loss for ‘personal injury’ are limited to cases where the severity of the loss is at least 15 per cent of a most extreme case. In Moore v Scenic Tours Pty Ltd the High Court of Australia held unanimously that damages for disappointment and distress arising from failure to deliver the promised benefits of a holiday cruise tour contract are not precluded as damages for ‘personal injury’ by the CLA. In this respect, the decision represents a welcome clarification of the law. However, as this article explains, the case raises other, important issues of remedy, including the appropriate treatment of a powerful and novel statutory remedial regime, remoteness principles and the elusive performance interest in contract.