Part 2 - Personal injury damages

Division 3 - Fixing damages for non-economic loss (general damages)

16 - Determination of damages for non-economic loss

(1) No damages may be awarded for non- economic loss unless the severity of the non- economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

(3) If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:

Table
Severity of the non-economic loss (as a proportion of a most extreme case)	Damages for non-economic loss (as a proportion of the maximum amount that may be awarded for non-economic loss)
15%	1%
16%	1.50%
17%	2%
18%	2.50%
19%	3%
20%	3.50%
21%	4%
22%	4.50%
23%	5%
24%	5.50%
25%	6.50%
26%	8%
27%	10%
28%	14%
29%	18%
30%	23%
31%	26%
32%	30%
33%	33%
34%-100%	34%-100% respectively

(4) An amount determined in accordance with subsection (3) is to be rounded to the nearest

$500 (with the amounts of $250and $750 being rounded up).

Note:

The following are the steps required in the assessment of non-economic loss in accordance with this section:

Determine the severity of the claimant’s non-economic loss as a proportion of a most extreme case. The proportion should be expressed as a percentage.
Confirm the maximum amount that may be awarded under this section for non-economic loss in a most extreme case. This amount is indexed each year under section 17.
Use the Table to determine the percentage of the maximum amount payable in respect of the claim. The amount payable under this section for non-economic loss is then determined by multiplying the maximum amount that may be awarded in a most extreme case by the percentage set out in the Table.

Where the proportion of a most extreme case is greater than 33%, the amount payable will be the same proportion of the maximum amount.

Moore v Scenic Tours Pty Ltd [2020] HCA 17

The applicant booked a holiday cruise tour in Europe for himself and his wife, supplied by the respondent. The tour was severely disrupted by adverse weather conditions.

Representative proceedings were commenced in the Supreme Court. The primary judge held that Scenic had failed to comply with the consumer guarantees in the ACL and awarded the applicant damages for disappointment and distress. On appeal, the issue was whether s 275 of the ACL applied s 16 of the CLA, being the state law applicable to the contract, to proceedings in federal jurisdiction, precluding liability for personal injury arising from the failure to comply with a consumer guarantee for services. The applicant was granted special leave to appeal the Court of Appeal decision.

On s 16: Section 275 picks up and applies State laws such as s 16: [38]. In this case, this section did not apply to preclude the recovery of damages for disappointment and distress not consequential upon physical or psychiatric injury. The High Court did not rule on whether s 16 applies to loss suffered outside of NSW, as held in Scenic Tours Pty Ltd v Moore [2018] NSWCA 238.

17 - Indexation of maximum amount relating to non-economic loss

(1) The Minister is, on or before 1 October 2002 and on or before 1 October in each succeeding year, to declare, by order published on the NSW legislation website, the amount that is to apply, as from the date specified in the order, for the purposes of section 16 (2).

(2) The amount declared is to be the amount applicable under section 16 (2) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in New South Wales over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.

(3) An amount declared for the time being under this section applies to the exclusion of the amount under section 16 (2).

(4) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (2), the amount declared is to be determined in accordance with the regulations.

(5) In adjusting an amount to be declared for the purposes of section 16 (2), the amount determined in accordance with subsection (2) is to be rounded to the nearest $500 (with the amounts of $250 and $750 being rounded up).

(6) A declaration made or published on the NSW legislation website after 1 October in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.

17A - Tariffs for damages for non- economic loss

(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.

(2) For that purpose, the parties to the proceedings or their Australian legal practitioner may bring the court’s attention to awards of damages for non-economic loss in those earlier decisions.

(3) This section does not alter the rules for the determination of other damages.

Sutherland Shire Council v Major [2015] NSWCA 243

The respondent was injured after the railing he was sitting on gave way and caused him to land heavily on his buttocks and roll into an embankment. The respondent alleged that he suffered non-economic loss as a result.

Section 17A of the Act provides that, in determining damages for non-economic loss, a court may refer to earlier decision of that or other courts for the purpose of

establishing the appropriate award. For that purpose, the parties of their legal advisors may bring the court’s attention to the awards of damages for non-economic loss in those earlier decisions. [12]

Last updated:

30 Mar 2025