Damages for Disappointment & Distress: Damages for Breach of Contract or Personal Injury Damages – The Impact of the CLA
Milton, Sharon (2013) Damages for Disappointment & Distress: Damages for Breach of Contract or Personal Injury Damages – The Impact of the CLA. Honours thesis, Murdoch University.
Damages for distress and disappointment is an award of damages under the common law to compensate a party on breach of a contractual obligation to provide pleasure, enjoyment or relaxation. In Insight Vacations, the New South Wales Court of Appeal determined that the type of damage was synonymous with a claim for damages for a personal injury. Therefore, the Civil Liability Act 2002 (NSW) (‘CLA’) applied to limit the claimant’s award of damages. This thesis provides a critical analysis of the theoretical principles of compensatory damages, with particular focus on the contractual claim for damages for disappointment and distress for a spoiled holiday. The central focus is on the analysis of two significant cases, Insight Vacations and Flight Centre v Louw, where the New South Wales judiciary determined that the claim for damages for disappointment and distress ought to incur the limitations of the CLA. This thesis argues that while both cases claimed damages for disappointment and distress, there is a distinction to be drawn between the two cases. It is submitted that the interpretation and application of the CLA to limit a claimant’s contractual right to recover damages for a breach of an expectation in a contract was not the intention or purpose of the Act. The CLA was introduced to govern the awards of damages for personal injuries caused by negligence, not to deny a remedy to a party for a breach of a contractual obligation.
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