'Plain Sailing'? Damages for Distress under the ACL and the Performance Interest in Contract

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.