Insight Vacations Pty Ltd v Young [2010] NSWCA 137
HEARING DATE(S):
17 February 2010
JUDGMENT DATE:
11 June 2010
JUDGMENT OF:
Spigelman CJ at 1; Basten JA at 81; Sackville AJA at 136
DECISION:
(1) Grant leave to appeal in respect of the grounds set out in the draft notice of appeal other than ground 5 (which related to contributory negligence). (2) Direct that the appellant file the draft notice of appeal within 14 days of the date of judgment. (3) Allow the appeal in part and set aside the judgment given in the District Court in favour of the plaintiff. (4) In lieu thereof give judgment for the plaintiff (Stephanie Young) in an amount of $11,500, such judgment to take effect on 4 June 2009. (5) No order as to the costs of the appeal. (6) Grant the respondent a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).
CATCHWORDS:
TRADE AND COMMERCE - consumer protection - conditions and warranties - implied warranty of due care and skill - whether s 5N of the Civil Liability Act 2002 is inconsistent with s 68B and s 68(1)(c) of the Trade Practices Act 1974 - whether s 74(2A) of the Trade Practices Act picks up and renders effective s 5N of the Civil Liability Act - TRADE AND COMMERCE - consumer protection - conditions and warranties - implied warranty of due care and skill - s 68B of the Trade Practices Act 1974 - s 5N of the Civil Liability Act 2002 - limitation of liability in relation to the supply of recreational services - DAMAGES - breach of contract - s 16 of the Civil Liability Act 2002 - meaning of “personal injury damages” - whether grief, anxiety, distress and disappointment are elements of non-economic loss - whether there is a distinction between “disappointment” and “distress” - CONSTITUTIONAL LAW - the States - inconsistency of laws - exercise of federal jurisdiction by a State court - failure to comply with s 78B of the Judiciary Act 1903 - WORDS AND PHRASES - “applies”
[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.
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AGLC
Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Case
[2010] NSWCA 137
Decision Date
CaseChat Overview and Summary
Insight Vacations Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a claim brought by Ms Young (the respondent) for damages arising from a tour organised by the appellant. The respondent alleged that she suffered personal injury, including grief, anxiety, distress, and disappointment, as a result of the appellant's negligence and breach of contract. The central dispute revolved around the extent to which the appellant could rely on provisions of the *Civil Liability Act 2002* (NSW) to limit its liability for the respondent's injuries, particularly in light of the consumer protection provisions of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)).
The legal issues before the Court of Appeal included whether section 5N of the *Civil Liability Act 2002* (NSW), which sets a standard of care for the provision of recreational services, was inconsistent with sections 68 and 68B of the *Trade Practices Act 1974* (Cth). The court was also required to determine whether section 74(2A) of the *Trade Practices Act 1974* (Cth) operated to incorporate section 5N of the *Civil Liability Act 2002* (NSW) into the contractual warranty of due care and skill implied in the supply of services. Furthermore, the court considered the meaning of "personal injury damages" under section 16 of the *Civil Liability Act 2002* (NSW) and whether grief, anxiety, distress, and disappointment constituted elements of non-economic loss for the purposes of that Act. Finally, the court addressed a potential failure to comply with section 78B of the *Judiciary Act 1903* (Cth) regarding the notification of constitutional matters.
The Court of Appeal granted leave to appeal on all grounds except for the ground relating to contributory negligence. The court's reasoning, as reflected in the orders, indicated a willingness to consider the substantive arguments concerning the interplay between Commonwealth and State legislation and the assessment of damages. The decision to grant leave suggests that the court considered the appeal to have sufficient merit to warrant further examination, particularly concerning the application of the *Civil Liability Act 2002* (NSW) in the context of consumer protection laws and the definition of personal injury.
Orders
Orders of the court
(1) Grant leave to appeal in respect of the grounds set out in the draft notice of appeal other than ground 5 (which related to contributory negligence).