Insight Vacations Pty Limited v Young 
The NSW Court of Appeal ('the Court of
Appeal') was required to consider the breadth of the
limitations contained in the Civil Liability Act 2002
(NSW) ('the Act') concerning the award of
damages for noneconomic loss arising from personal injuries.
This case involved a claim for non-economic loss for injuries
sustained whilst on holiday due to the negligence of a travel
agent. The trial judge had awarded damages for pain and suffering
under the Act and additional damages for 'disappointment'
on the basis that the latter was allowable for breach of contract
to provide a holiday and therefore outside the scope of the Act,
which was directed at tortious damages.
The Court of Appeal has ruled that the caps set out in a table
under the Act apply to all awards of damages for non-economic loss
arising from personal injuries regardless of whether the claim is
founded in contract or tort, including damages for
Stephanie Young ('Young') successfully
sued her travel agent, Insight Vacations Pty Limited
('Insight Vacations') in the District
Court of New South Wales ('DC') for
injuries sustained while on holiday in Europe. She was injured on a
motorcoach in Slovakia due to the negligence of the driver.
The trial judge found that Insight Vacations had breached an
implied warranty in the contract to exercise due care and skill in
organising the tour and proceeded to assess damages.
Young claimed damages for 'pain and suffering' arising
from the injury and 'distress and disappointment' arising
from loss of enjoyment and relaxation for the remainder of the
Section 16 of the Act limits liability for personal injuries
damages. Section 16 contains a table specifying a proportion of a
maximum amount, depending upon an assessment of the suffering as a
proportion of an extreme case. The Act defines noneconomic loss to
include pain and suffering and loss of amenities.
First instance decision
The trial judge assessed the suffering as a percentage of a most
extreme case. He was minded to award additional damages for the
disappointment but found himself bound by the limitations of the
However, the trial judge drew a distinction between damages for
distress and damages for disappointment. He found that distress
fell within the meaning of 'pain and suffering' and
therefore non economic loss (as defined by the Act) but
'disappointment' was something else. His Honour proceeded
on the basis that disappointment was a kind of a loss that may be
awarded for breach of contract where there is a failure of
contractual purpose to provide holiday, pleasure, and relaxation.
On that basis, his Honour awarded Young additional damages for
disappointment. Insight Vacations appealed.
Decision of the Court of Appeal
On appeal, the Court of Appeal held that grief, anxiety,
distress, and disappointment were all elements of pain and
suffering. There was no separate head of damage for
Accordingly, it was found the award for disappointment made by
the trial judge constituted personal injury damages within the
meaning of the Act. The Act contemplated that damages for
noneconomic loss can be awarded for claims brought in contract
rather than tort.
It made no difference that the damages were for breach of
contract rather than for breach of tortious duties.
The Court of Appeal was of the view that the trial judge erred
in making a distinction between distress and disappointment. The
two were closely related concepts and each was concerned with the
loss of enjoyment or opportunity for recreation and relaxation. To
excise disappointment in order to escape the limitations of the Act
was an artificial exercise that did not accord with the definition
of non-economic loss under the Act.
The Court concluded by stating that the trial judge should have
included the element of disappointment in the assessment of
severity of the suffering instead of awarding additional damages
exceeding the maximum amounts set out in the table under s16. The
award of damages for disappointment was set aside.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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