Civil Liability Act: Limitations on contractual damages invalid – inconsistency with Commonwealth Constitution

Although not a medical claim, Perisher Blue Pty Limited v Nair-Smith [2015] NSWCA 90 is an important appellate decision. The key finding appears to be that the limitations on damages imposed by Part 2 of the Civil Liability Act 2002 (NSW) (and presumably other similar Acts) may in certain contractual claims be invalid.

Further consideration of this issue will be required under the current Australian Consumer Law.

Drawing from the headnote:

The limitations on damages imposed by Part 2 of the Civil Liability Act are invalid according to s 109 of the Constitution because they are directly inconsistent with the right to “full contractual liability” conferred by s 74(1) of the Trade Practices Act 1975 (NSW). “Full contractual liability” refers to an entitlement to recover the full amount of damages recoverable at common law undiminished by any State’s or Territory’s legislation and free from any intrusion by such legislation for any breach of s 74: [194]-[195].

   Commonwealth of Australia Constitution Act 1901 (Cth) s 109, Trade Practices Act 1975 (Cth) ss 74, 742A, Civil Liability Act 2002 (NSW) Part 2, s 5N.Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388, Insight Vacations v Young [2010] NSWCA 137 applied.

The ticket contract was for the supply of “recreational services” within the meaning of s 68(2) of the Trade Practices Act because the common intended purpose and object of the transaction was to facilitate resort skiing which included, but was not limited to, the provision of lifting services: [201].

   Trade Practices Act 1975 (Cth) ss 68, 68B, 74. Civil Liability Act 2002 (NSW). Part 1A, s 5N.

The term of the ticket contract that purports to exclude liability for more than personal injury or death does not answer the description in s 68B(1)(d) of the Trade Practices Act and is, by force of s 68, void in its entirety and not just to the extent that it purports to exclude, restrict or modify liability for anything beyond personal injury or death: [216].

   Trade Practices Act 1975 (Cth) ss 4L, 68, 68B. Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 applied.