Cap on damages

11.43 The ALRC proposes a cap on damages for all damages other than for economic loss. This means that the total amount of general damages for non-economic loss and exemplary damages awarded would be capped at the same amount as the cap on damages for non-economic loss in defamation awards.^[51] This proposal would ascribe equal weight to privacy and reputational interests. The proposal militates against the risk of plaintiffs cherry-picking between causes of action based on the availability of higher awards of damages.^[52]

11.44 Restrictions on the scope of damages for non-economic loss for personal injury actions are stipulated at statute. For instance, in NSW, the initial cap was set at $350,000^[53] and is now set at $551,500.^[54] Damages for non-economic loss at defamation were initially capped at $250,000^[55] and are now set at $355,000.^[56]

11.45 In 2009, the NSWLRC proposed a cap on damages for non-economic loss for invasions of privacy of $150,000,^[57] some $100,000 less than the defamation cap at the time.

11.46 David Rolph has argued that a cap on damages for a statutory cause of action should be higher than that stipulated at defamation law. He argued that a lower cap on damages for non-economic loss in privacy actions would be ‘undesirable’ as it fails to reflect the relative importance Australia should now prescribe to privacy.^[58] Witzleb argued that existing caps on damages in other areas of Australian law were introduced to restrain what some perceived to be excessive compensation orders.^[59] The ABC supported a cap on damages for non-economic loss, stating that the cap should not be higher than that at defamation law.^[60]

11.47 Some stakeholders argued against a cap on damages.^[61] The OAIC submitted that setting a cap ‘may have the effect of focusing attention on that upper limit and implying that serious privacy invasions should result in a payout of that magnitude’.^[62] However it will be at the court’s discretion to make this assessment.