Cousins v Nimvale Pty Ltd  WADC 175
District Court of Western Australia, 19 November 2013
The Court confirmed that in a claim for damages made by the dependent of a victim of a domestic air crash under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“CACL”), as that Act was applied under the Civil Aviation (Carriers’ Liability) Act 1961 (WA), a dependent may concurrently make a claim for nervous shock against the aircraft operator for a breach of a common law duty of care.
In this accident a Robinson “R44” helicopter crashed north east of the Purnululu Aircraft Landing Area in Western Australia on 14 September 2008 when the pilot deviated from the usual scenic flight track. The pilot attempted to hover low to the terrain and either did not have available, or did not apply, the level of power needed to sustain the hover. The aircraft developed an uncommanded descent and collided with the ground, fatally injuring the pilot and three passengers. This case involves the claims made by the parents of two of the young women who were tragically killed in the crash.
Claims made under CACL are statutory claims, rather than claims made in negligence. The CACL is the Australian statute which imports the Montreal Convention into Australian law (the relevant law for international air crash compensation in certain cases). However, Part IV of that Act applies to intrastate commercial aviation, like the helicopter operation in this case, and applies a similar strict liability regime to compensate passengers and their dependents. Part IV is also expressed, like the Conventions, to apply to be the exclusive legal source of claims for damages for the death of passengers.
The question for the Court in Cousins was whether the restriction or “exclusivity” principles under the CACL Act, which arises by virtue of a similar exclusivity of legal action in the Conventions, serves to prevent a dependent of a deceased passenger from bringing legal action against the air operator for nervous shock arising from witnessing or learning of the accident which killed the deceased, in the same case as a CACL “dependency” claim. This question involved an analysis of foreign court judgments which hold that claims made under the Convention for death or bodily injury are the exclusive source of rights where the Conventions apply.
In short, a concurrent claim for nervous shock may be brought by the dependent as the CACL Act is the exclusive source of legal remedies for passengers, and those who survive them in relation to liability for the death of the passenger. The CACL Act does not serve to prevent claims by the dependent not “imposed … on a carrier in respect of the death of a passenger” (s 35 of the CACL Act). A claim for pure nervous shock by a witness to a crash is a separate claim by a non-passenger founded in the law of negligence and based on a separate common law duty of care owed by an air operator to non-passengers in circumstances such as those presented in this case.
The conclusion of the Court in Cousins is not controversial, but further serves to clarify and strengthen the rights of the dependents and surviving family members of those tragically lost in air accidents in Australia.
Supreme Court of Queensland, 29 October 2013
Aviation – carriage by air – carriers’ liability – death or personal injury of passenger – on international flight – where the plaintiff claims damages arising from carriage by air between Australia and the United States of America – where the plaintiff contends he sustained bodily injury because his seat did not fully recline – where the plaintiff contends this and other events constituted an unusual and/or unexpected event and/or comprised an ‘accident’ –where the defendant denies the events pleaded and that they constitute an ‘accident’– where the Court ordered the separate determination of whether the events occurred as alleged by the plaintiff – whether the events occurred as alleged by the plaintiff – whether those events constituted an unusual and/or unexpected event and/or comprised an ‘accident’ within the meaning of Article 17 of the Montreal No 4 Convention
Victorian Civil and Administrative Tribunal, 12 July 2013
Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – section 9E of the Civil Aviation (Carriers’ Liability) Act 1959 (C’th) – Article 17.1 of the 1999 Montreal Convention set out in Schedule 1A to that Act.
Victorian Civil and Administrative Tribunal, 20 June 2013
Section 75 of the Victorian Civil and Administrative Tribunal Act – application for proceeding to be struck out or dismissed for want of jurisdiction – claim arising following an incident on an aircraft on a Commonwealth place – aircraft travelling between states – claim made under Part 2 and Part 9 of the Fair Trading Act 1997 – respondent claimed defence under Commonwealth law – respondent claimed Tribunal exercising federal jurisdiction – ss 27, 28 and 34 Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – s 4 Commonwealth Places (Application of Laws) Act 1970 – application dismissed.
Supreme Court of New South Wales, 7 June 2013
Procedure – deceased killed in a recreational flight accident – wife commenced action under Compensation to Relatives Act 1897 s 6B on behalf of herself and her children – proceedings settled – Court asked to apportion the settlement sum – proposed apportionment below the amounts allocated to each child by expert actuaries – whether the reduction appropriate – the wife already paid substantial costs of the inquest into the accident – the wife already paid expenses for the children’s education and advancement in life – the children and the wife agree to the proposed apportionment – the children informed that they can receive independent legal advice and declined to do so – wife’s position as a fiduciary for the children discussed – HELD: settlement sum apportioned in accordance with the proposal.
Procedure- action commenced on behalf of a person under legal incapacity – person ceased to be under legal incapacity – proceedings settled – Court approval of the settlement required under Civil Procedure Act 2005 s 76 – HELD: settlement approved.
Hana Farid v Etihad Airways PJSC of Abu Dhabi United United Arab Emirates t/as Etihad Airways  NSWSC 591
Supreme Court of New South Wales, 28 March 2013
Civil procedure – separate trial of issue – whether order for separate trial should be set aside because of further evidence – Civil Aviation (Carriers’ Liability) Act 1959
Walker-Eyre v Emirates  QDC 364
Queensland District Court, 19 December 2012
Passenger claiming for injury caused by luggage falling out of overhead locker – Personal injury – Aircraft – strict liability under Commonwealth statute – whether PIPA applied – whether Commonwealth statute otherwise provides
Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority (No 2)  FCA 1297
Federal Court of Australia, 21 November 2012
Negligence – whether leave should be granted for a minute of further re-amended statement of claim to be filed – application for summary judgment – whether the applicants had a reasonable prospect of success in establishing breach of a common law duty of care by a statutory body (the Civil Aviation Safety Authority) on the pleaded facts – whether CASA has a common law duty to exercise its statutory powers to avoid causing loss or damage to those who it regulates – whether CASA has a common law duty to make formal inquiries of overseas civil aviation regulators in determining whether a particular type of air operation is safe – whether the alleged common law duty of care as pleaded is inconsistent with the statutory authority’s powers and functions
De Brett Seafood Pty Ltd v Qantas Airways Limited (No 5)  FCA 1241
Federal Court of Australia, 6 November 2012
Practice and procedure – Applications for leave to file cross-claims against other airlines – whether requirements of rule 15.05 of the Federal Court Rules 2011 (Cth) complied with – inappropriate to rule on applications where application to amend statement of claim foreshadowed
Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd  FCA 1222
Federal Court of Australia, 6 November 2012
Industrial law – workplace right – Fair Work Act 2009 (Cth) s 340, s 341 – whether duties of licenced aircraft maintenance engineers found in reg 51 and reg 215(9) of the Civil Aviation Regulations 1988 (Cth) constitute a “workplace right” – whether in any event decision-maker intended to injure employees concerned by reason of their exercise or proposed exercise of alleged “workplace right”
Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased & ors v. Lessbrook Pty Ltd (In Liquidation)  QSC 311
Supreme Court of Queensland, 12 October 2012
Damages – dependency claim – assessment of damages – where a passenger aircraft crashed, killing passengers – where the spouse of each deceased passenger claims damages for and on behalf of the estate and the dependents – where the claims are made under the Civil Aviation (Carriers’ Liability) Act 1964 (Qld) which in turn applies part of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – how that damage is to be assessed – how the value of services is to be assessed in pecuniary terms
Damages – dependency claim – assessment of damages – whether the relatives’ share of the financial benefit the deceased would have brought to the family should be assessed using an averages approach or a factual approach – which averages approach is appropriate
Damages – dependency claim – assessment of damages – loss of income – where each of the deceased were at the time of their deaths completing apprenticeships and or TAFE courses – whether they would have completed their courses – whether there were prospects of consistent employment on completion – how those factors are to be taken into account
Statutes – interpretation – traditional adoption – where the relevant definition of family members included “adopted persons” – whether traditionally adopted persons are “family members”
Statutes – interpretation – where s 35(3) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) did not expressly address whether or not a passenger’s child born after the death was for the purposes of the section a child of the passenger – whether it can be said the child sustained damage within the section by reason of his father’s death
Damages – dependency claim – assessment of damages – services – where each of the deceased provided services, including hunting and gathering – to what extent the hunting and gathering activities are compensable as a lost service – whether the award should be based on the loss of the material benefit of food on the table or by the hours such activity occupied – where the hunting and gathering is a way of life
Damages – dependency claim – assessment of damages – services – whether the loss of each of the deceased as hunter-gatherer extends to the loss of parental education of traditional local knowledge and skill needed to fish
Damages – dependency claim – assessment of damages – vicissitudes of life – where the deceased were indigenous – where indigenous persons have lower than average lifespans and higher than average incidence of poor health – whether the usual allowance for the vicissitudes of life should be increased
Statutes – interpretation – interest and costs – whether the financial cap under the applicable act is inclusive of interest
Taggart and Civil Aviation Safety Authority  AATA 690
Administrative Appeals Tribunal of Australia, 8 October 2012
Civil aviation – medical standard for the issue of class 1 and 2 medical certificates – transient global amnesia – safety-relevant condition – degree of functional incapacity or a risk of incapacitation – with safety pilot condition – safety of air navigation – decision under review is affirmed
Barclay v Penberthy  HCA 40
High Court of Australia, 2 October 2012
Negligence – Pure economic loss – Plane crash caused by engine failure and negligent response of pilot – Whether damages recoverable for pure economic loss suffered by employer due to injury to employees
Tort – Action per quod servitium amisit – Whether absorbed into tort of negligence – Whether action per quod servitium amisit exists under common law of Australia
Tort – Action per quod servitium amisit – Measure of damages – Remoteness –Whether damages recoverable calculated by price of substitute less wages no longer paid to injured employee
Tort – Rule in Baker v Bolton – Whether employer can recover for death of employee
Commissioner of Taxation v Qantas Airways Ltd  HCA 41
High Court of Australia, 2 October 2012
Goods and Services Tax – Taxable supply – Supply – Consideration – Overbooking – Attribution of tax period – Airfares that were non-refundable or refundable but unclaimed – Customer cancels or fails to take purchased flight –Promise by airline to use best endeavours to carry passengers and baggage – Whether a taxable supply under A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 9-5 – Whether airline liable to remit to Commissioner GST on non-refundable or unclaimed refundable fares.
Qantas Airways Ltd v Federal Commissioner of Taxation  FCAFC 113
(1 September 2011)
Qantas Airways Limited and Commissioner of Taxation  AATA 977
(6 December 2010)
AMWU v Australian Licensed Aircraft Engineers Association  FCA 1074
Federal Court of Australia, 28 September 2012
Industrial law – union membership – eligibility rule – application for interlocutory injunction
Sadri and Civil Aviation Safety Authority  AATA 656
Administrative Appeals Tribunal of Australia, 28 September 2012
Civil aviation – Cancellation of pilot licences – failure on applicant’s duty re safe operation of aircraft – whether applicant a fit and proper person to hold licences – decisions under review affirmed
Atieh v Civil Aviation Safety Authority  FCA 1027
Federal Court of Australia, 20 September 2012
McKay and Civil Aviation Safety Authority  AATA 607
Administrative Appeals Tribunal of Australia, 10 September 2012
Aviation – Class 2 Medical Certificate – the safety of air navigation – medical standard for the issue of a Class 2 Medical Certificate – safety-relevant condition – epilepsy – seizures – epilepsy surgery – student pilot licence
Civil Aviation Safety Authority v Alligator Airways Pty Limited (No 3)  FCA 601
Federal Court of Australia, 8 June 2012
Regulation of air navigation – suspension of civil aviation authorisation – meaning of serious and imminent risk to air safety – whether conduct constituted, contributed to or resulted in a serious and imminent risk to air safety – required standard of proof under s 30DE of the Civil Aviation Act 1988 (Cth) – conduct that constitutes, contributes to or results in a serious and imminent risk to air safety under s 30DB – whether under s 30DE there are reasonable grounds to believe respondent has engaged in, is engaging in, or is likely to engage in contravening conduct
Civil Aviation Safety Authority v Alligator Airways Pty Limited (No 2)  FCA 575
Federal Court of Australia, 1 June 2012
Civil Aviation Safety Authority v Alligator Airways Pty Limited (No 1)  FCA 574
Federal Court of Australia, 18 May 2012
Avtex Air Services Pty Ltd and Civil Aviation Safety Authority  AATA 61
Administrative Appeals Tribunal of Australia, 4 February 2011
Civil aviation – cancellation of AOC – serious and imminent risk to air safety – key personnel – inexact proofs, indefinite testimony or indirect inferences – concurrent hearing of applications – special risk based audits – defective endorsement training – CASA instrument of delegation and approval – asymmetric flight training – training and checking organisation – proficiency checking – amending training and checking manual – in command requirements for charter work – distinction between class and type of aircraft – regulated take-off weights – safety management system – safety culture – defect recording – flight in icing conditions – flight around thunderstorm activity – pilot fatigue and pressure to conduct flight – fatigue management system – airworthiness of aircraft used in AOC operations
Air Tahiti Nui Pty Ltd v McKenzie  NSWCA 429
Supreme Court of New South Wales – Court of Appeal, Allsop P, Hodgson JA and Handley AJA, 21 December 2009
Carriage (air) – Passengers – Personal injury – Identity of carrier – Whether proper defendant actual carrier or contracting carrier – Whether travel agency acted as principal or agent in booking flight carried out by its parent company – Estoppel by representation – Whether carrier estopped from denying that it was the correct defendant – Montreal No 4 Convention – Guadalajara Convention
The respondents were both injured while travelling from New York to Tahiti on an Air Tahiti Nui flight. The carriage was subject to the Montreal 4 Convention and the Guadalajara Conventions as incorporated into Australian law. The appellant’s case was that not it, but its parent company (a claim against which was now time barred) was the contracting carrier and that it had acted merely as agent. The respondent’s case was that the appellant was the carrier and that in any case it was estopped from denying that it was, because of its conduct and the conduct of its solicitors. The claimants succeeded before the judge. The defendant appealed.
The Court of Appeal dismissed the appeal. Unlike the Montreal No 4 Convention, the Guadalajara Convention defined both contractual and actual carriers. The contractual carrier was a person who as principal made an agreement for carriage. If the appellant, a company without planes, entered into an agreement for carriage (as opposed to “of carriage”) it did not follow that it acted as agent. It might only mean that its obligations had to be performed by its parent company as actual carrier. The fact that it did not have the authority to require the parent company to do so did not matter; it conferred the necessary authority on the parent by issuing the tickets which the parent honoured. The contractual arrangements for carriage were made with the respondents by a travel agent on behalf of the appellant as principal. The appellant was therefore liable as the contracting carrier.
Regarding estoppel, during the discovery proceedings, the appellant represented by its conduct that it was the appropriate defendant. A finding that it and its solicitor ought to have known about the claimant’s mistaken assumption was not enough to establish an estoppel; but a party that makes a representation of fact which another acts upon to its detriment may be estopped, even if the party making the representation was mistaken and did not intend his or her words or conduct to be understood as they were reasonably understood by the other party. If the appellant was not the contracting carrier or the flight, it was therefore estopped from denying that it was.
Repacholi Aviation Pty Ltd and Civil Aviation Authority  AATA 578
Administrative Appeals Tribunal of Australia, 30 June 2006
Civil aviation – Chief Pilot approval – Gerald Repacholi approved by respondent (CASA) as Chief Pilot of applicant in February 1995 – Mr Repacholi acted as Chief Pilot of applicant until March 2002 when he resigned – new Chief Pilot approved by CASA in April 2002 – in November 2003 applicant requested CASA to approve Mr Repacholi as Chief Pilot – in February 2004 CASA refused to approve Mr Repacholi as Chief Pilot – consideration of Mr Repacholi’s compliance history and dealings with CASA officers – Mr Repacholi has maintained a satisfactory record in the conduct or management of flying operations – Mr Repacholi’s approval as Chief Pilot conditional on his being assessed by examiner as suitable to carry out responsibilities of Chief Pilot and passing prescribed examinations conducted by examiner – Mr Repacholi should be approved as Chief Pilot of applicant if those conditions satisfied – decision under review set aside
Povey v Qantas Airways Limited  HCA 33; (2005) 216 ALR 427; (2005) 79 ALJR 1215
High Court of Australia, 23 June 2005
Aviation – Carriage by Air – Liability of carrier – International Convention imposing liability for damage sustained in the event of bodily injury suffered by a passenger, if the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking – Appellant allegedly contracted deep venous thrombosis while a passenger on long-haul international flight on aircraft operated by the respondents – Whether appellant should have been warned of the risk of deep venous thrombosis – Whether appellant should have been given advice on precautions that would minimise risk of its occurrence – Whether appellant’s contracting deep venous thrombosis was an accident that took place on board the aircraft within the meaning of Art 17 Warsaw Convention 1929 as amended by the Hague Protocol 1955 and by Montreal Protocol No 4 1975
International Law – Treaties – Construction – Requirement of uniform interpretation by contracting states – Under Art 31 Vienna Convention on the Law of Treaties interpretation to be conducted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose
Procedure – Summary judgment – Whether appellant’s claim revealed an arguable cause of action – Whether claims bound to fail – Whether the pleading should be struck out and the action permanently stayed
Howe v QANTAS Airways Ltd  FMCA 242
Federal Magistrates Court of Australia, 15 October 2004
Human rights – Sex discrimination in employment – long haul flight attendant required to cease flying due to pregnancy – offered and declined ground based work at a reduced salary – refused access to accumulated sick leave – placed on unpaid maternity leave – on return to work sought more flexible working hours – no part time work available at her level – applicant sought and received a demotion to a level at which more flexible working hours were available – whether the applicant was directly discriminated against because of her pregnancy considered – whether the applicant was constructively dismissed by being forced to seek a demotion after maternity leave considered – whether the applicant was indirectly discriminated against because of her sex by being denied part time work considered
Law reform – Observations on the background to s.7A of the Sex Discrimination Act and on the desirability of legislating comprehensively in respect of family responsibilities discrimination
Civil Aviation Safety Authority v Boatman  FCA 915
Federal Court of Australia, 13 July 2004
Administrative law – pilots holding civil aviation authorisations – authorisations suspended by Civil Aviation Safety Authority (CASA) pending investigation of conduct suspected of constituting serious and imminent risk to air safety – statutory power of court to make order to enable completion of CASA investigation – whether court empowered to make an order when CASA investigation completed
Statutory interpretation – statutory power of court to extend duration of suspension imposed by statutory regulator – general statutory presumption that power to make an order exercisable ‘from time to time as occasion arises’ – whether presumption rebutted by context – intention apparent from surrounding provisions that order be for purpose of enabling completion of pending investigation – presumption held rebutted