Proposal 11–6 The total of any damages other than damages for economic loss should be capped at the same amount as the cap on damages for non-economic loss in defamation.
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. 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.
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 and is now set at $551,500. Damages for non-economic loss at defamation were initially capped at $250,000 and are now set at $355,000.
11.45 In 2009, the NSWLRC proposed a cap on damages for non-economic loss for invasions of privacy of $150,000, 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. 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. The ABC supported a cap on damages for non-economic loss, stating that the cap should not be higher than that at defamation law.
11.47 Some stakeholders argued against a cap on damages. 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’. However it will be at the court’s discretion to make this assessment.
See for example, Defamation Act 2005 (NSW) s 35.
Nicholas Petrie, ‘Reforming the Remedy: Getting the Right Remedial Structure to Protect Personal Privacy’ (2012) 17 Deakin Law Review 139.
Civil Liability Act 2002 (NSW) s 16. This includes a statutory indexation mechanism: s17.
Civil Liability (Non-Economic Loss) Amendment Order 2013.
See, for example, Defamation Act 2005 (SA) ss 35, 35(4).
NSW Government Gazette No 65 of 31 May 2013. This figure is due to be increased on 1 July 2014.
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) Draft Bill, cl 77.
David Rolph, ‘The Interaction of Remedies for Defamation and Privacy’  Precedent 14.
N Witzleb, Submission 29.
ABC, Submission 46.
Office of the Australian Information Commissioner, Submission 66; Public Interest Advocacy Centre, Submission 30.
Office of the Australian Information Commissioner, Submission 66.