Aviation: struck out for being too late

  • 20 May 2019
Key Points
  • Sudden death time-bar for personal injury damages claims for injury or death to passengers carried by air.
  • Strict application of Australian aviation legislation to give effect to International Aviation Convention.

Australia’s highest court the High Court of Australia (“HCA”) has recently confirmed unanimously that a claim for personal injuries arising out of the death of or injury to a passenger in an aircraft (“the incident”) must be brought within two years of the date of the incident pursuant to section 34 of the Commonwealth Civil Aviation (Carriers’ Liability) Act 1959 (“CACLA”).  CACLA gives effect in Australia to the Warsaw Convention 1929 as subsequently amended by various protocols.  Subsequent to the incident (and hence not relevant to the proceedings) the Warsaw Convention was superseded in Australian law by the Montreal Convention 1999, but for present purposes the relevant provisions of the Warsaw Convention and the Montreal Convention are the same. 

The case is Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14 decided on 8 May 2019.  The judgment provides a succinct analysis of the interplay between the Warsaw Convention and CACLA.

On 2 February 2006 Mr Stephenson was killed when a helicopter in which he was a passenger while carrying out work for his employer, the Parkes Shire Council, struck an overhead power line and crashed whilst conducting low altitude level noxious weed surveying near Parkes in NSW.  Unfortunately the claims by his widow and children for negligently inflicting psychiatric harm (nervous shock) in tort were not commenced until 2009 after the 2-year limitation period prescribed by Article 29 of the Warsaw Convention had expired.  Article 29 is implemented in section 34 of CACLA for personal injury claims under article 17 of the Warsaw Convention, in turn implemented by section 28 of CACLA.  Importantly for this case while the Warsaw Convention is confined to the international carriage by air of passengers, the provisions of CACLA generally extend the operation of the Warsaw Convention to inter state air carriage within Australia supplemented by relevant legislation in each of the states for intra state air carriage (relevantly the Civil Aviation (Carriers’ Liability) Act 1967 in New South Wales).  Crucially section 28 of CACLA extends the carriers’ liability for damage “sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft…” beyond passengers to third parties.  This gives an entitlement to sue to relatives and other dependants of the deceased or injured passenger (CACLA lists those entitled to sue and the categories of damages they may claim) and this was the basis on which the widow and children commenced their actions against the carrier. 

It has long been accepted by the Australian courts in line with similar decisions in comparable jurisdictions such as the UK, the USA, Singapore and New Zealand that the Warsaw Convention provides an exclusive remedy and right of action against air carriers replacing all rights and remedies under domestic law for instance in tort or contract.  The HCA upheld such an approach in Povey v Qantas Airways Limited in 2005 in relation to passenger injuries in the course of international air carriage.  The importance of the decision in South West Helicopters is that it was applied to personal injury in domestic flight (in this case entirely within New South Wales).  In particular and contrary to the decision of the trial judge, the HCA held that the exclusive remedy and rights regime under CACLA applied to claims for psychiatric illness/nervous shock to third parties where those third parties were claiming damages “by reason of” the death or injury of a passenger pursuant to section 35 of CACLA.  Such claims are not available to passengers injured or killed in international air carriage where Article 17 has been given a limited meaning as far as “damage” is concerned in Australia and in comparable jurisdictions.

Consistent with the HCA’s desire to adopt a harmonious approach to international jurisprudence on the interpretation of the Warsaw Convention it held not surprisingly that the 2-year time limit under section 34 of CACLA applied to this claim even though it was not a claim by the passenger but was “in respect of” the death of a passenger.

For those not overly familiar with CACLA and the Warsaw Convention (now Montreal Convention) in return for not having to prove negligence of the carrier for the death or personal injury of a passenger or damage to cargo or baggage, strict liability is imposed upon the air carrier subject to maximum limitations of liability.  Though there are some limited exceptions to the strict liability which can enable the air carrier to defend a claim in relation to international carriage these do not apply to domestic carriage under CACLA. 

Unlike the position with the international sea carriage conventions equivalent to the Warsaw / Montreal Conventions as far as claims for cargo damage are concerned, such as the Hague Visby Rules which apply in Australia (with modifications), it is not open to the parties to a contract of air carriage to agree to extend the two year limitation period for commencement of proceedings.  So it is 2 years or you are out of time.

Post by Derek Luxford

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