Personal Injury Damages for Non-Pecuniary Loss in Australia: A Recipe with Too Many Ingredients?

Abstract

This paper is concerned with damages for non-pecuniary loss. There are in fact many areas of law where damages of this type can be awarded as a remedy where the plaintiff has established an infraction of the civil law. These include, amongst others, damages for disappointment and anxiety arising out of a breach of contract, 'general' damages for trespass to land which can include an amount for the anxiety and the stress associated with the trespass, and, most controversially in terms of quantum, damages for non-pecuniary loss in these contexts, partly because of constraints of length but primarily because the rules that are associated with awarding damages in those contexts have not developed the same sophistication - complexity may be a better term - that those that relate to the award of damages for non-pecuniary loss in the particular context which is the concern of this paper - damages for personal injury. This paper will consider how such awards have been justified and calculated in the Australian context. It will then consider the various drivers which lead to a significant reform of how damages for non-pecuniary loss were awarded in the context of actions for damages for personal injuries.