The Australian Consumer Law (‘ACL’) is the national consumer law and applies across Australia. It came into force on 1 January 2011. At the same time, the Trade Practices Act 1974 (Cth) changed its name to the Competition and Consumer Act 2010 (Cth). Schedule 2 of that Act now contains the ACL. The ACL replaced a number of consumer protection provisions in federal, state and territory laws. It was enacted with the cooperation of the federal, state and territory governments. This cooperation was necessary since the Commonwealth lacks the power to comprehensively legislate on consumer law.

The ACL applies as a federal law, or as a law of the relevant state or territory, or both. It is not necessary here to go into all the details of the demarcation since the same body of law generally applies. Broadly, the ACL applies as a law of the Commonwealth to the conduct of corporations and certain natural persons, and applies as a law of a state or territory to the conduct of corporate and natural persons with a connection to the relevant jurisdiction. The application of the ACL as a federal law and the application of the ACL as a state or territory law are not mutually exclusive (where there is no conflict).

Common law damages cannot be awarded in respect of a purely equitable wrong such as breach of trust or breach of fiduciary duty. Instead, a compensatory remedy has developed in equity’s exclusive (or inherent) jurisdiction: equitable compensation. This remedy originated in cases involving breach of trust, although for many years it was not explicitly recognised as a compensatory remedy and was known instead as one of the forms of ‘account’ that a trustee must make when a breach of trust occurs. It is therefore necessary to have a brief look at the main forms of account, which are still used today.

A contract may be breached by one party (the defendant) through defective performance, delayed performance, or a total failure to perform. If the contract breached is enforceable at common law, the innocent party (the plaintiff) can generally claim common law damages for any loss suffered as a result of the breach. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for breach of contract are discussed in this chapter: the assessment of damages and the attribution of responsibility.

The victim of a tort can generally claim compensatory damages for any loss suffered as a result of the tort. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for tort are discussed in this chapter: the assessment of damages and the attribution of responsibility. The assessment of compensatory damages for personal injury, which are usually claimed in tort, is discussed.

Damages is the most significant common law remedy for breach of contract. An innocent party to a breached contract is entitled to damages as of right if a compensable loss occurs which is not too remote and which could not have been avoided by mitigation. This chapter therefore commences with the concept of damages as being the primary form of compensation for breach of contract, introducing the seminal case on the topic, Robinson v Harman followed by the variations on that fundamental concept, including a discussion of the various bases for the assessment of loss, then the various restrictions on recovery, namely causation, remoteness, and contributory negligence.