Litigation Update: Can I get damages for pain and stress for a contractual dispute?
In my 30 years as a solicitor one question clients ask me all the time is whether they can get damages for all the stress and pain they have had to cope with as part of a commercial dispute going wrong? The answer is usually a flat “no”.
WHY?
Because contractual claims are governed under the Wrongs Act 1958 (Vic) and my view is that aggravated damages are not available for noneconomic loss (including the type of loss that we would need to rely on for aggravated damages, eg. pain and suffering, loss of enjoyment of life) unless the person has suffered significant injury.
The word “injury” is defined below, and for it to be “significant” it needs to meet a threshold assessed by a medical panel: “injury” means personal or bodily injury and includes—
- (a) pre-natal injury; and
- (b) psychological or psychiatric injury; and
- (c) disease; and
- (d) aggravation, acceleration or recurrence of an injury or disease…
HOWEVER…
Brand Partners recently acted in the Talack (o1) litigation, in which we argued a separate cause of action (other than a contractual claim) under which aggravated damages was allowed for an unlawful means conspiracy (which is not governed by the Wrongs Act).
The cases relied upon in Talacko are defamation or trespass cases, also not governed by the Wrongs Act.
The case of NSW v Ibbett (2010) NSWCA 27 sets out the position we think would be taken in Victoria. The Civil Liability Act (NSW) is very similar in operation to the Wrongs Act.
Essentially, the case says aggravated damages, being part of general damages, for non-economic loss, are not available without significant injury.
Exemplary damages are a different category of damages so fall outside the restriction.
I also believe we need to always bear in mind that breach of confidentiality cases (eg sharing of private photos without authority) could attract aggravated damages.
In my 30 years as a solicitor one question clients ask me all the time is whether they can get damages for all the stress and pain they have had to cope with as part of a commercial dispute going wrong? The answer is usually a flat “no”.