On 18 December 2019, Alexander Page commenced proceedings against Sydney Seaplanes Pty Ltd (SSPL) in the Federal Court of Australia. SSPL are a domestic and charter carrier in New South Wales (NSW). Mr Page claimed damages for loss and a nervous shock injury, arising from the tragic death of his daughter on 31 December 2017. His claim was brought under sections 28, 31 and 35 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (Cth CACL Act), ‘as incorporated’ by section 5 of the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) (NSW CACL Act). Mr Page had commenced his action within the 2 year time-bar for commencing proceedings under the Cth CACL Act ‘as incorporated’ by the NSW CACL Act.
Mr Page’s daughter had been killed (along with all others onboard), while on a charted seaplane flight operated by SSPL, which had crashed shortly after take-off on its return flight from Cottage Point to Rose Bay (the flight). As the flight had occurred entirely within NSW, it concerned state and not federal law, and the Federal Court therefore did not have jurisdiction to hear the matter. On that basis, Justice Griffiths ordered on 24 April 2020 that the proceedings be dismissed for want of jurisdiction, and for Mr Page to pay SSPL’s legal costs.
Shortly afterwards on 11 May 2020, Mr Page commenced proceedings by summons against SSPL in the Supreme Court of NSW. He sought an order under section 11(2) of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (FCSJA), that the Federal Court proceedings be treated as if they had been commenced in the Supreme Court of NSW. SSPL opposed that order, arguing that the Federal Court proceedings had been dismissed, and that Mr Page was therefore time-barred in his claim against SSPL (as it was now more than 2 years since the flight).
Justice Adamson considered whether a proceeding that had been finally determined by the Federal Court could be treated as a proceeding in the NSW Supreme Court under the FCSJA, and also assessed the interrelationship between the FCSJA, the Cth CACL Act, and the NSW CACL Act. Justice Adamson determined that:
Justice Anderson ordered for the proceeding to be treated as commencing in the Supreme Court of NSW and for SSPL to pay Mr Page’s costs of the summons. Page therefore reiterated the discretion available to judges in the Supreme Court of NSW to make orders under section 11(2) of the FCSJA.
After being advised of the death of her son (who had died during the course of his employment with Virgin Blue International Pty Ltd (VBIPL) on 14 February 2010 in Thailand), Ms Edwards sought personal injury damages from VBIPL for pure mental harm, under Australian state-based workers compensation legislation. She commenced her claim in the Adelaide Magistrate Court on the basis that her nervous shock injury was sustained in South Australia (SA). Ms Edwards had separately succeeded against VBIPL in a death benefits claim for her son’s death under section 25 of the Workers Compensation Act 1987 (NSW) (the NSW Act), as his employment contract had stipulated that his employment was based in NSW.
VBIPL brought an interlocutory application to summarily dismiss Ms Edwards’ claim for damages in the Adelaide Magistrates Court, arguing that section 58AA of the Workers Rehabilitation and Compensation Act 1986 (SA) (the SA Act) applied section 151AD of the NSW Act, to render her claim against VBIPL statute-barred. Section 151AD of the NSW Act essentially barred employers from paying damages awards to third parties (i.e. non-employees), for pure mental harm in respect of the death of or injury to a worker. Section 58AA of the SA Act provided that if an entitlement to compensation exists under the substantive law of a state under that state’s statutory workers compensation scheme, then that state’s law governs whether or not a claim for damages in respect of injury can be made, and (if it can be made), how the claim is then determined.
The magistrate agreed with VBIPL’s application, dismissing Ms Edwards’ action and entering judgment for VBIPL. Ms Edwards subsequently appealed the decision to the Full Court of the Supreme Court of SA.
Chief Justice Kourakis and Justices Stanley and Doyle of the Supreme Court of SA allowed Ms Edwards’ appeal, and set aside the magistrate’s judgment for VBIPL and dismissal of Ms Edward’s action against VBIPL. In their reasons for judgment, their Honours found that:
The decision in Edwards ultimately granted compensation to a third party, for pure mental harm arising from the death of an aviation employee during the course of their employment.
On 17 January 2018, a helicopter in which Mr Jay Stevens was a passenger, operated by Professional Helicopter Services (PHS), crashed. The flight, which took off from a helipad near Uluru, was planned as a 15-minute scenic flight and was intended to land at the same helipad from which it departed. As a result of the crash, Mr Stevens sustained severe injuries (including paraplegia) and issued court proceedings seeking damages against PHS in the Supreme Court of NSW. Stryker Australia Pty Ltd (Stryker) was Mr Stevens’ employer and had arranged for him and others to take the flight with PHS as a reward for achievement in the course of employment. Stryker had paid Mr Stevens’ wages and medical and related expenses following the crash and sought indemnity against PHS for those payments.
Both Mr Stevens and Stryker sought for the Court to decide as a separate question the basis of PHS’s liability. The Court had to consider whether PHS’s liability for Mr Stevens’ injuries arose under either the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL Act) or under the common law. The distinction is significant because under the CACL Act any damages that Mr Stevens could be awarded were capped, whereas a damages award under the common law was at large. The determination centred on whether section 27(1) of the CACL Act applied to Mr Steven’s flight. Section 27(1)(c) provides that Part IV of the CACL Act ‘applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations… between a place in a Territory and another place in that Territory’.
Mr Stevens contended that section 27(1)(c) did not apply to the flight and that PHS’s liability arose under the common law. Section 27(1)(c) referred to carriage from ‘a place’ to ‘another place’ in that territory, and not carriage which departed from and arrived at the same place. He pointed to the reasoning of Justice Byrne in Jacob v Mount Beauty Gliding Club Inc (2004) VSC 103, and the dissenting view of Appeal Justice Nettle (in Mount Beauty Gliding Club Inc v Jacob (2004)). In Mount Beauty, Justice Byrne and Appeal Justice Nettle examined the equivalent Victorian state provisions to the CACL Act and concluded that a place of departure and a place of landing must be different places. By contrast, PHS relied on the majority decision in the Mount Beauty appeal to submit that the references to ‘place’ are in the context of departure and destination in contracts for carriage, not ‘place’ in terms of in a geographical sense. PHS argued that a different interpretation would lead to an ‘absurd’ result and could not have been the intention of parliament when drafting the Victorian CACL Act equivalent.
The Court accepted that a literal interpretation of section 27(1)(c) led to the conclusion that it applied only to carriage from one place to ‘another’ place or, in other words, ‘from point A to point B, and not from point A back to point A’. Construing the CACL Act in the context of its overall intention however, the Court emphasised that its purpose was to ‘regulate all travel by flight in a consistent and uniform way’. If the purely literal interpretation were therefore favoured, ‘some carriages within a Territory would be caught by the Act, but some would not’, creating ‘outcomes that could or would lead to unfairness and injustice’. The Court held that PHS’s liability for Mr Stevens’ injuries arose solely under the CACL Act and there was resultingly, no cause of action at common law.
Stevens provides a reminder that the provisions of the CACL Act should be considered in their context and purpose, including the broader context of the liability regime under international civil aviation law on which the Australian legislation is based.
On 10 September 2020, the NSW Court of Appeal dismissed Mrs Salih’s application for leave to appeal a decision of the District Court of NSW, and ordered her to pay Emirates’ costs. In 2019, the District Court of NSW had considered whether the occurrence of Mrs Salih’s injury from jamming her thumb in the door of an overhead compartment aboard an Emirates aircraft, was an ‘accident’ within the scope of Article 17 of the Montreal Convention 1999 (the Convention), as implemented into Australian law through the CACL Act. The District Court examined whether the overhead compartment door dropped suddenly on Mrs Salih’s thumb and was therefore an ‘unusual or unexpected occurrence’ for the purposes of constituting an ‘accident’ under the Convention (relying on the well-accepted definition of ‘accident’ set out by the High Court of Australia in Povey). The primary judge found that Mrs Salih’s injuries were sustained as a result of the overhead compartment closing in its usual way and that there was no accident under the Convention (as applied by the CACL Act).
In considering whether to grant the application for leave to appeal, the Court of Appeal indicated there had to be sufficient doubt in the primary judge’s decision, based on an issue of principle, a question of general public importance, or an injustice which is reasonably clear (going beyond what is merely arguable). In Salih however, the law in relation to an ‘accident’ was not in dispute - Mrs Salih’s application for leave to appeal was based solely on challenging factual findings. The Court considered whether the overhead compartment opened in the usual and expected fashion and if her thumb was injured as a result of the overhead compartment closing in the usual fashion. Mrs Salih relied on a number of points, including the Emirates’ incident report recording that the door ‘fell’ when she opened it, the captain and purser being informed of the injury, and the primary judge’s assessment of Mrs Salih’s non-economic loss at 15% of the most extreme case, suggesting that the door had not closed in the usual manner.
The Court held that the door had operated in the usual and expected manner, and that Mrs Salih’s injuries could not have occurred as a result of the factual matters she had identified - The Court of Appeal found that the primary judge correctly made factual findings on Mrs Salih’s failure to report the overhead compartment door as defective, on both the Emirates incident report and medical incident report not recording the door as being defective, and on the fact that evidence that the door opened in the expected manner when Mrs Salih’s husband used it after the incident was left unchallenged. The Court of Appeal also confirmed that cabin defect logs on board the flight had not recorded a report of a defect with the overhead compartments, or to repairs made to one. The Court rejected Mrs Salih’s application on that basis.
Salih demonstrates the significance of onboard reports and log records in challenging allegations made by passengers for alleged incidents that occur onboard aircraft.