Proposal 11–1 The new Act should provide that courts may award compensatory damages, including damages for the plaintiff’s emotional distress, in an action for serious invasion of privacy.
11.7 The ALRC proposes that courts be empowered to award compensatory damages for loss suffered to a plaintiff, including damages for emotional distress. Previous law reform inquiries made similar recommendations.
11.8 Compensatory damages would be assessed by reference to existing tort principles. One reason for the ALRC’s proposal that the statutory cause of action be described as an action in tort is to allow a court when determining an action for serious invasion of privacy to draw on principles that have been well settled and applied by the courts in analogous common law actions. The proposal that the new tort be actionable per sewill make it most closely analogous to actions like trespass to the person, but it will also be analogous in other respects to defamation actions.
11.9 It should first be noted that nominal damages would not be appropriate in an action for serious invasion of privacy.
11.10 A plaintiff might suffer actual loss in the form of physical or psychiatric injury, property damage or other economic loss as a result of the serious invasion of privacy. Regardless of the type of harm or the tort, the general principle in tort law is that the role of compensatory damages is to place a plaintiff, so far as money can do, in the position he or she would have been in had the tort not been committed.
11.11 Where a plaintiff has suffered physical or psychological injury, compensatory damages may include special and general damages to remedy economic loss suffered by a plaintiff, as well as general damages for non-economic loss. The financial loss suffered by a plaintiff may include medical expenses incurred and loss of earnings as a result of the injury and in some instances, the effect of the injury on a plaintiff’s future earnings. Damages for non-pecuniary loss recognise the pain and suffering caused by the injury.
11.12 However, the ALRC proposes that the new Act also clearly provide that a court may award damages for ‘mere’ emotional distress, in an action for serious invasion of privacy. Serious invasions of privacy commonly cause emotional distress or harm to the plaintiff’s dignitary interests, often unaccompanied by any physical or psychiatric illness. This fact, given the failure of the common law to provide redress for the intentional infliction of mere emotional distress outside actions such as trespass, is one of the key justifications for the proposed statutory cause of action. So too is the uncertainty about whether Australian courts can award damages for emotional distress in equitable actions for breach of confidence. Making an intentional or reckless serious invasion of privacy actionable per se will allow a court to award general damages in compensation for a plaintiff’s emotional distress.
11.13 Compensation for distress or injury is not the only basis for an award of damages. In torts which are actionable per se, such as trespass to the person in the form of battery, assault or false imprisonment, trespass to land, and also in defamation where harm to the plaintiff’s reputation from a defamatory statement is presumed, the courts have often recognised that an award of general compensatory damages may serve the purpose or have the effect of vindicating the plaintiff’s right. For instance, In Uren v John Fairfax & Sons Pty Ltd , Windeyer J gave the following explanation of the purpose of compensatory damages in defamation:
compensation by damages operates in two ways—as a vindication of the plaintiff to the public and as consolation to him for a wrong done.
11.14 In Plenty v Dillon (1991), Gaudron and McHugh JJ of the High Court of Australia characterised the award of general damages for an action in trespass to land as fulfilling vindicatory purposes:
the appellant is entitled to have his right of property vindicated by a substantial award of damages.
11.15 Witzleb and Carroll explain that civil remedies are aimed at ‘vindicating the interests that underlie the right or rights infringed’.
Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) Rec 74–5; NSW Law Reform Commission, Invasion of Privacy, Report No 120 (2009) cl 76(1)(a); Victorian Law Reform Commission, Surveillance in Public Places, Report No 18 (2010) Rec 29(a).
K Barker et al, The Law of Torts in Australia (Oxford University Press, 2012) chs 2.8, 16.
See Ch 4.
Nominal damages are available in trespass cases: RP Balkin and JLR Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) [27.3].
For example, damage to stock or the cost of repairs to property occasioned by trespass to land or trespass to goods: Ibid [5.15].
Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn); Harriton v Stephens (2006) 226 CLR 52  (Hayne J); Butler v Egg Pulp Marketing Board (1966) 114 CLR 185, 191 (Taylor and Owen JJ).
Special damages refer to ‘those items of loss which the plaintiff has suffered prior to the date of trial and which are capable of precise arithmetical calculation—such as hospital expenses’: Balkin and Davis, above n 4, [27.5].
General damages refer to all injuries which are not capable of precise calculation. They refer to financial loss which may be suffered after the date of judgement and all non-financial such as pain and suffering or loss of amenities: Ibid.
The only Australian appellate authority on the award of damages for emotional distress in a breach of confidence case is Giller v Procopets (2008) 24 VR 1. See Ch 12 for further discussion.
Balkin and Davis, above n 4, [18.17].
Uren v John Fairfax & Sons (1966) 117 CLR 118, 150 (Windeyer J).
Plenty v Dillon (1991) 171 CLR 635, 655.
Robyn Carroll and Normann Witzleb, ‘“It”s Not Just about the Money’: Enhancing the Vindicatory Effect of Private Law Remedies’ (2011) 37 Monash University Law Review 216, 219.