Insight Vacations Pty Ltd v Young

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.