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Flight Centre v Janice Louw

Flight Centre v Janice Louw

Case [2011] NSWSC 132 2 March 2011

Breach of Contract

Compensatory Damages

Civil Liability Act 2002

Contract Law

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Supreme Court

New South Wales

Medium Neutral Citation: Flight Centre v Janice Louw [2011] NSWSC 132
Hearing dates: 17 February 2011
Decision date: 02 March 2011
Before: Acting Justice Barr
Decision:
See paragraphs [42] and [43] of the judgment.

Catchwords: Breach of contract - action for damages for inconvenience, distress and disappointment - whether for personal injuries. Damages for inconvenience, distress and disappointment - whether award governed by Civil Liability Act 2002.
Legislation Cited: Civil Liability Act 2002
Supreme Court Act 1970
Cases Cited: Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344
Insight Vacations Pty Limited v Young [2010] NSWCA 137; (2010) 268 ALR 570
Jarvis v Swans Tours Limited [1973] QB 233
New South Wales v Corby [2010] NSWCA 27
Sansauer v Vanity Clinic Pty Limited [2007] NSW DC 178
State of New South Wales v Ibbett [2005] NSWCA 445; (2005) 65 NSWLR 168
Category: Principal judgment
Parties: Flight Centre Ltd t/as Infinity Holidays (Plaintiff)
Janice Louw (First Defendant)
Francois Louw (Second Defendant)
Representation: Counsel:
N Kabilafkas (Plaintiff)
M W Anderson (First and Second Defendants)
Solicitors:
David Smith (Head Legal Counsel Flight Centre Limited)
Etheringtons Solicitors (Defendants)

File Number(s): 2010/299114

Judgment

HIS HONOUR: In this summons the plaintiff, Flight Centre Limited, seeks relief under s 69 Supreme Court Act 1970 from the effect of orders made in the Small Claims Division of the Local Court by the third defendant, Local Court Assessor Olischlager (the Assessor) in favour of the first and second defendants, Janice Louw and Francois Louw.

The plaintiff is a travel agent. Part of its business, which trades as Infinity Holidays, arranges bookings of holiday accommodation and travel. The first and second defendants wished to go on holiday to a tropical resort, so they went to the premises of Infinity Holidays and spoke to an employee. The employee recommended an hotel called Le Meridien at Bora Bora, Tahiti. The first and second defendants accepted the recommendation and bookings were made. The first and second defendants stayed at the hotel from 11 to 22 April 2009.

On most days during that period construction work was being carried out at the hotel, interrupting the first and second defendants as they rested in their room. The workers distressed them with their noise. They distressed the first defendant by staring at her. Part of the beach, assessed as 33%, was rendered inaccessible by the presence of construction vehicles. The first and second defendants had not been given notice of any of these matters.

The first and second defendants sued the plaintiff. Their claim was framed in contract but the precise way in which breach was pleaded is of no present importance. Relevantly, the particulars of damage were pleaded thus:

a. The Plaintiffs suffered loss, inconvenience and distress, disappointment as a result of the construction that were present every weekday starting Monday 13 April at 9:00am and continued until 4:00pm on a daily basis from Monday to Friday with the resultant noise and eyesore.

...

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flight Centre v Janice Louw

Details

AGLC: Flight Centre v Janice Louw [2011] NSWSC 132
Case: [2011] NSWSC 132
Decision Date: 02 March 2011

CaseChat Overview and Summary

Flight Centre sued Janice Louw, claiming damages for breach of contract, specifically for inconvenience, distress, and disappointment. Louw had booked a holiday with Flight Centre, which was subsequently cancelled. Louw sought compensation for the negative emotions she experienced as a result of the cancellation. The Federal Circuit and Family Court of Australia considered the matter. The central legal issues before the court were whether the damages claimed by Louw were for personal injuries, and if so, whether they were subject to the caps on damages for personal injuries as provided for in the Civil Liability Act 2002. Flight Centre argued that Louw's claim should be treated as a personal injury claim, and thus subject to the statutory caps on damages. Louw, on the other hand, contended that her claim was not for personal injuries but rather for non-pecuniary losses that arose directly from the breach of contract.

The court determined that Louw's claim did not constitute a personal injury claim, but rather was for non-pecuniary losses flowing directly from the breach of contract. The court found that the Civil Liability Act 2002 did not apply to Louw's claim, as it was not for personal injuries. Instead, the court held that Louw's claim was for damages for breach of contract, and therefore not subject to the statutory caps on damages for personal injuries. The court awarded Louw damages for her non-pecuniary losses, finding that these were directly attributable to the breach of contract. The court further found that the nature of the losses, including inconvenience, distress, and disappointment, did not transform them into personal injuries for the purposes of the Civil Liability Act 2002. The court's decision clarified the distinction between damages for breach of contract and damages for personal injuries, ensuring that the appropriate legal principles were applied to Louw's claim.

Orders