Australia: Do the Victorian Wrongs Act thresholds for non-economic loss apply to ACL claims?

Last Updated: 4 February 2019
Article by Nicole Norris and Jessica Rosla

Burke v Ash Sounds Pty Ltd [2018] VSC 771


  In the recent decision of Burke v Ash Sounds Pty Ltd [2018] VSC 771, the Victorian Supreme Court determined that festival-goers injured in a mass stampede at the 2016 Falls Festival in Lorne are required to meet the threshold of significant injury for non-economic loss damages in respect of their claims for breach of consumer guarantees.

The issue before the Court was whether an action for breach of consumer guarantees against the suppliers of services under Schedule 2 of the Australian Consumer Law (ACL)1 is restricted by the provisions in Part VBA of the Wrongs Act 1958 (Vic).  The ruling involved statutory interpretation of the wording of the Wrongs Act provisions to determine whether they apply to strict liability causes of action or whether its application is limited to fault-based liability.


  On 30 December 2016, at the Falls Music and Arts Festival in Lorne, a large number of festival-goers were injured when the crowd rushed between stages (incident). Two of the major headlining acts were scheduled to play at different stages only 5 minutes apart, which caused a mass exodus from one Marquee, 'the Grand Theatre', and created bottlenecks at the exits.

Class action

Ms Burke commenced a class action on behalf of herself and the group members, being all those injured as result of the incident, against the promoter of the Festival.  She alleged that the promoter failed to schedule the events with adequate spacing to allow the orderly and safe movement of large crowds around the venue, failed to provide adequate exits and failed to provide adequate crowd control staff.

She claimed that this conduct breached:

  • duties owed by the promoter under the Wrongs Act (as an occupier) and under the common law; and
  • consumer guarantees in sections 60 and 61(1) and (2) of the ACL, namely that the promoter failed to render the services with due care and skill and that the service was not fit for purpose.

The promoter admitted liability, but argued the plaintiff must satisfy the Wrongs Act significant injury threshold in order to recover damages for non-economic loss with respect to the ACL claims.

Section 28LE of the Wrongs Act places a restriction on the recovery of damages for non-economic loss by imposing a threshold of 'significant injury.'  This phrase is satisfied by meeting one of a number of definitions, but requires a plaintiff to have a whole person impairment of greater than 5% for physical injuries (or 5% or more for back injuries) or 10% or more for psychiatric injuries. Section 28LE provides:

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered a significant injury.

The plaintiff argued that the benefit of consumer protection guarantees under the ACL (and in particular section 61 of the ACL) is they are not fault-based, and therefore damages thereunder ought not be limited by the significant injury threshold in the Wrongs Act. The plaintiff submitted that use of the phrase 'caused by the fault of another person' in section 28LE of the Wrongs Act applies to fault-based causes of action only, and does not apply to the ACL claims under section 61.


Justice McDonald rejected this submission stating the wording of section 28LE of the Wrongs Act was unambiguous and applied to:

any respect of an injury...caused by the fault of another person.

His Honour preferred the interpretation that a 'proceeding' refers to the entirety of a plaintiff's claim. As the plaintiff had pleaded breaches of common law duties of care (where fault is clearly an element, even putting aside the defendant's admission of liability), this had the effect of barring recovery for any non-economic loss damages for other non-fault based causes of action (such as the ACL claims) unless the plaintiff had a significant injury.  Therefore, although a breach of the consumer guarantees is strict liability, section 28LE of the Wrongs Act applied to any such claim.

His Honour stated his finding was not predicated on the admission of negligence by the promoter or based on an interpretation that a 'proceeding' refers to each distinct cause of action; instead, the particularised conduct in the Statement of Claim 'was replete with language attributing fault.' The word 'failing' appeared on six separate occasions. His Honour found that 'failing' is synonymous with 'at fault.'

His Honour conceded that it was unnecessary for him to decide whether the section 28LE threshold could still be engaged if the proceeding had only pleaded the contractual claims. In our view this outcome is open, given the effect of section 28LC(4) of the Wrongs Act, which states:

This part applies to claims for damages for non-economic loss even if the claim is founded on breach of contract or any other cause of action.

However, there is a disconnect between this section, and the specific provision in section 28LE, which states the limitation is to apply to proceedings where the injury is caused by the fault of another.  This issue could be tested in the future by solely pleading breach of the ACL guarantees, but it would be a rare case where there was no pleading alleging some kind of fault as the basis for the case.


It is worth noting certain claims under the ACL2 are limited by a scheme for awarding non-economic loss damages which is less generous than the Victorian and NSW schemes.  It stipulates a threshold of 15% or more of the most extreme case and a formula with a capped figure which is far less generous (almost half) than the Victorian and NSW schemes.

The Wrongs Act assesses non-economic loss damages under common law principles, with a current cap on non-economic loss damages of $611,430, whereas the cap for claims under the ACL formula is approximately $350,000. We highlight the NSW's Civil Liability Act 2002 operates the same formula as the ACL with respect to an assessment of a most extreme case but has a current maximum of $635,000.

However, the ACL threshold does not apply to claims against the suppliers of goods or services which is one of the reasons why the decision is of significance, as it imposes the Wrongs Act hurdle to claim non-economic loss damages in these cases. There is no provision equivalent to section 28LE of the Wrongs Act 1958 in other jurisdictions, so this decision is limited to Victorian application.

Contrast this with claims where the ACL threshold does apply, such as claims against manufacturers. In Victorian proceedings where fault is alleged against a manufacturer in addition to the strict liability provisions of the ACL, this decision makes clear that the Wrongs Act threshold still applies. In these proceedings, a plaintiff may choose the scheme which is most favourable (provided the appropriate threshold is met).3


  While strict liability causes of action like breach of consumer guarantees are traditionally regarded as non-fault based, usually they are accompanied by pleadings involving an element of a failure of some kind or another.  This decision clarifies that, in these cases, a claimant in Victoria is precluded from claiming non-economic loss damages unless they establish that they have suffered a significant injury.


1 Schedule 2 to the Competition and Consumer Act 2010 (Cth)

2 Namely, claims against manufacturers, to which Part VIB of the Competition and Consumer Act 2010 (CCA) applies

3 Alameddine v Glenworth Valley Horse Riding Pty Ltd & Anor [2015] NSWCA 219.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions