On the other side, Scenic Tours argued that Mr Moore’s distress and disappointment were subject to Section 16 of the NSW Civil Liability Act NSW (‘CLA’), which states that a plaintiff is not entitled to damages for non-economic loss unless his/her condition falls within 15% of the “most extreme case”. The Court of Appeal subsequently found that although Scenic Tours had breached its consumer guarantees under the ACL, Mr Moor failed to prove that his condition made 15% of the most extreme cases. The $2,000 award was overturned.
The matter escalated to the High Court, in which Mr Moore submitted that his distress and disappointment were neither an injury nor a non-economic loss for the purpose of the CLA. The Court agreed with this submission.
The Court jointly held that Mr Moore’s injured feelings arising from a breach of Scenic Tours’ promise did not constitute an ‘impairment’, ‘deterioration’, ‘injurious lessening or weakening’ of the mind. Hence it did not warrant the application of Part 2 of the CLA (i.e. personal injury damages provisions). The Court also decided that “non-economic loss” would mean pain, suffering or loss of amenities due to a personal injury, which was not the case of Mr Moore.
The High Court’s decision in Mr Moore’s case means that injured feelings do not constitute an injury nor a non-economic loss under the CLA. However, a claim in relation to injured feelings may be treated as a claim for personal injury damages (Part 2 of the CLA) if a plaintiff can prove that the injured feelings are consequential upon a personal injury.