Cousins v NIMVALE Pty Ltd - [2013] WADC 175

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COUSINS -v- NIMVALE PTY LTD [2013] WADC 175

CORAM: STAUDE DCJ

HEARD: 1 NOVEMBER 2013

DELIVERED : 19 NOVEMBER 2013

FILE NO/S: CIV 2776 of 2010

BETWEEN: CAROLYN MAY COUSINS
BRIAN JOHN COUSINS
First plaintiffs
DAWN PAMELA PINNEY
NEVILLE WILLIAM PINNEY
Second plaintiffs
AND
NIMVALE PTY LTD
First defendant
CHOPPERFARM PTY LTD
Ninth defendant
WARD'S HELIWORK PTY LTD
Tenth defendant
GRANT HAYDEN KENNY
Eleventh defendant

Catchwords:

Practice and procedure - Application to strike out parts in a statement of claim - Indorsement on a writ of summons claiming damages pursuant to the Civil Aviation (Carrier's Liability) Act 1959 (Cth) - Scope of indorsement - Whether psychiatric injury claim pleaded in a statement of claim is statute‑barred

Legislation:

Civil Aviation (Carrier's Liability) Act 1959 (Cth)
Civil Aviation (Carrier's Liability) Act 1961 (WA)
Fatal Accidents Act 1959 (WA)
Law Reform (Miscellaneous Provisions) Act 1941

Result:

An order for extension of time is granted
An order to strike out parts of the claim is granted

Representation:

Counsel:

First plaintiffs               :     Mr B Bradley
Second plaintiffs           :     Mr B Bradley
First defendant              :     Mr H C Quail
Ninth defendant            :     No appearance
Tenth defendant            :     No appearance
Eleventh defendant       :     No appearance

Solicitors:

First plaintiffs               :     Bradley Bayly Legal
Second plaintiffs           :     Bradley Bayly Legal
First defendant              :     D G Price & Co
Ninth defendant            :     Not applicable
Tenth defendant            :     Not applicable
Eleventh defendant       :     Not applicable

Case(s) referred to in judgment(s):

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 36; (2005) 223 CLR 251
Cauchi v Air Pacific Ltd [2005] TOSC 7
McKenna v Avior Pty Ltd [1981] WAR 255
Morgan v Banning (1999) 20 WAR 474
Morris v KLM Royal Dutch Airlines, King v Bristow Helicopters Ltd [2002] 2 All ER 565
Renowden v McMullen [1970] HCA 24; (1970) 123 CLR 584
Sidhu v British Airways [1996] UKHL 5; [1997] 1 All ER 193
South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1998) 157 ALR 443
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51
Weldon v Neal (1887) 19 QBD 394
Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642

STAUDE DCJ:

Introduction

The plaintiffs are the parents, respectively, of two young women who were tragically killed in a helicopter crash at Purnululu National Park on 14 September 2008.
The action was commenced by writ of summons filed 9 September 2010 which claimed damages under the Civil Aviation (Carrier's Liability) Act 1961 (WA) (CACLA) which gives effect in this State to the Civil Aviation (Carrier's Liability) Act 1959 (Cth) (Commonwealth Act).
In the plaintiffs' statement of claim however, the plaintiffs plead not only that the first defendant is liable for damage by reason of the Commonwealth Act, but also that the deaths were caused by the first defendant's breach of common law duties of care owed, to the deceased and the plaintiffs respectively which resulted in foreseeable psychiatric injury to each of the plaintiffs. The statement of claim also pleads a claim for damages pursuant to the Fatal Accidents Act 1959 (WA).
In this application, the first defendant seeks an order that the parts of the statement of claim which allege liability for breach of duty of care and liability pursuant to the Fatal Accidents Act be struck out pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971.
The statement of claim is pleaded with respect to liability of the first defendant only. Hence no defence has been filed on behalf of the other defendants.
On 30 October 2013 the plaintiffs filed a notice of discontinuance in respect of the claims against the second, third, fourth, fifth, sixth, seventh and eighth defendants. It would appear that the claims against the ninth, 10th and 11th defendants are preserved, but not active.
In these reasons I will use the expression 'psychiatric injury' as a synonym for 'mental harm', 'psychological injury' or 'nervous shock'.

Extension of time

The first part of the application is for an order for an extension of time within which to bring the application. This order is required by a reason of O 20 r 19(3)(a) of the Rules of the Supreme Court 1971 which requires an application to strike out a defence to be brought within 21 days of the filing of a statement of claim. The unusual history of this action has been deposed to by the first defendant's solicitor. It explains the delay. Quite properly, no issue is taken by the plaintiffs with respect to time. It is clearly in the interests of the parties and the administration of justice that the application be heard and the legal issues it raises be determined at this point of time. Accordingly, an order for extension of time is granted.

Application to strike out

The grounds of the application are that the paragraphs sought to be struck out are frivolous or vexatious in the sense that they plead no cause of action that is obviously unsustainable and therefore an abuse of process. The issue is whether, as a matter of law, the claims pleaded in tort are tenable. It is accepted by the plaintiffs that it is in their interests that this issue be decided on this interlocutory application.

Indorsement

The writ of summons is indorsed as follows:
The first plaintiffs' and the second plaintiffs' claim in their personal capacity and in their capacity as Executors, alternatively administrators and trustees of the estates of their children referred to below.
The first plaintiffs' and the second plaintiffs' claims against the defendants, jointly or severally, are damages under the Civil Aviation (Carrier's Liability) Act 1961 (WA) (incorporating pt IV of the Civil Aviation (Carrier's Liability Act 1959 (Cth)) and such other damages as may be assessed arising by reason of the death of the passengers Jessica May Cousins and Whitney Michelle Dawn Pinney resulting from an accident on 14 September 2008 on board an aircraft in the course of intrastate commercial transport operations on a flight operated by one, some or all of the defendants with whom the deceased passengers had contracted for the said flight.

Statement of claim

The statement of claim, dated 7 November 2012, was filed on 8 November 2012. It alleges that the defendants owed a duty of care to the first plaintiffs and the second plaintiffs by virtue of the relationship which existed between the defendants, the pilot of the helicopter and the deceased. The statement of claim alleges that duty of care was breached by the acts and omissions which caused the crash and that the plaintiffs each suffered psychiatric injury as a foreseeable consequence of the breach. As mentioned above, the statement of claim also pleads a dependency claim pursuant to the Fatal Accidents Act 1959.
The defence of the first defendant admits the crash, but denies liability for a breach of duty of care. The first defendant pleads that the claims for psychiatric injury under the Fatal Accidents Act exceed the indorsement on the writ and are statute-barred by virtue of s 14(1) of the Limitation Act2005.
The first defendant's position is that, as the plaintiffs are able to pursue their respective dependency claims pursuant to the Civil Aviation (Carrier's Liability) Act 1961 (WA) (CACLA), the claims under the Fatal Accidents Act are otiose and should be struck out. No issue is taken in that respect. The real question, then, is whether the plaintiffs can maintain claims for damages for psychiatric injury.

Civil Aviation (Carrier's Liability) Act 1951 (WA)

It is common cause that the Civil Aviation (Carrier's Liability) Act 1961 (WA) gives effect to the Civil Aviation (Carrier's Liability) Act 1959 (Cth) (Commonwealth Act) so as to provide a scheme of compensation for death or injury suffered by a passenger as a result of an accident to which the Act applies.
The Commonwealth Act by virtue of s 28 imposes strict liability on a carrier for damage for the death of, or bodily injury to, a passenger due to an aircraft accident. Such liability is subject to a statutory limit on damages: s 31. Section 34 operates to extinguish the right to damages if an action is not brought within two years.
In relation to the death of a passenger s 35(3) provides that the liability of the carrier is 'enforceable for the benefit of such of the passenger's family members as sustained damage by reason of his or her death'. Section 35(9) provides that 'the amount recovered in the action, after deducting costs not recovered from the defendant shall be divided amongst the persons entitled in such proportions as the court directs …'.
Hence, the CACLA affords a right to damages for damages for loss of pecuniary benefit, including loss of services capable of being measured in monetary terms: McKenna v Avior Pty Ltd [1981] WAR 255.
Importantly, the Act provides by s 35(2):
Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.

Psychiatric injury claims

The first defendant seeks to strike out the claims for psychiatric injury on the grounds that they are not within the scope of the indorsement on the writ of summons. It contends that as the claims were not made until more than three years had expired following the accident, the writ may not be amended as the claims are statute‑barred.
There are three issues. Firstly, may damages for psychiatric injury at common law be claimed in addition to damages under the CACLA? Secondly, if that be the case, is such a claim within the scope of the indorsement? Thirdly, can damages for psychiatric injury to a non‑passenger be awarded under the CACLA?
These questions were answered in South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1998) 157 ALR 443. The Full Court of the Federal Court (by majority) upheld that the Commonwealth Act does not apply to psychiatric injury claims by non‑passengers and does not preclude common law claims for damages for tortious psychiatric injury by non‑passengers. The case involved claims for damages at common law for psychiatric injury suffered as a result of witnessing a chartered aircraft, in which their sons were passengers, crash after take-off, albeit with no fatalities.
Accordingly, the first defendant submits that the claims of the plaintiffs for psychiatric injury are statute-barred, as they are not within the purview of the indorsement of claim which merely contains a statutory claim, and that they are not claimable under the CACLA.
On the first and second questions, the plaintiffs argue that South Pacific is a powerful authority for the proposition that a separate claim lies for damages for psychiatric injury caused by negligence. They submit that in this case such a claim does not exceed the indorsement. On the third question, the plaintiffs submit that it is arguable, at least, against the majority, that damages for psychiatric injury can be recovered under the CACLA.
In the Federal Court, the issue, as Hill J expressed it, was whether the Commonwealth Act is a code in respect of non international flights such that it governs not only claims by passengers, but also by non‑passengers. The appellant's position was that the Commonwealth Act barred any action by a non‑passenger for psychiatric injury except in accordance with the Act and at least, where there was a nexus between the passenger and the non‑passenger.
His Honour concluded that the policy behind the Warsaw Convention, and other conventions to which the Commonwealth Act gave effect, were concerned with limiting liability to persons in a contractual relationship with the carrier. Such persons would be given notice of the limitation of liability on their ticket. The conventions were intended to be a complete code with respect to contractual passengers, but not with respect to non‑passengers. His Honour gave a number of examples of possible injury to non‑passengers, liability for which would clearly not be governed by the conventions, such as injury to a person on the ground.
Sackville J accepted the well-established view that the Act excluded any other remedy by a passenger and did not allow damages for purely psychiatric injury, applying Sidhu v British Airways [1996] UKHL 5; [1997] 1 All ER 193. Sidhu and another House of Lords decision, Morris v KLM Royal Dutch Airlines, King v Bristow Helicopters Ltd [2002] 2 All ER 565, which concerned claims by passengers for purely psychiatric injury, each hold that the Warsaw Convention excludes any domestic law remedy. Psychiatric injury to a passenger, absent physical injury, is not compensable.
With respect to the construction of the Commonwealth Act, his Honour observed that pt IV applied to domestic air carriage to which the conventions did not apply. Section 35 could be seen as affording a pecuniary loss claim, as might be made pursuant to Lord Campbell's Act (in Western Australia the Fatal Accidents Act 1959).
Whether the Act excluded a claim for purely psychiatric injury by a non‑passenger raised difficult issues of construction. His Honour observed that the words 'in respect of' (which are used in s 35(2), but not in the Warsaw Convention itself) had been considered by the High Court in the context of worker's compensation in Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642. The case concerned a claim for psychiatric injury in the nature of nervous shock by the wife of an injured worker. The question was whether the employer's insurance policy should be construed so as to cover liability for the wife's injury. The wording was 'in respect of injury to any worker employed by him'. The High Court held that the employer was not required to insure against a claim for damages for psychiatric injury to a person other than an employee. It was necessary to consider the context in which the expression was used in order to determine its scope.
Sackville J found that while it was clear that the convention was drafted with a view to entitling the family of a deceased passenger to claim damages for pecuniary loss, it was not so evident that the drafters had in mind non-derivative claims, such as for psychiatric injury by a non‑passenger. A non‑passenger could be seen to be in a different position from a contractual passenger, in terms of the limitation of liability for injury or death. His Honour identified a number of factors which supported the conclusion that pt IV of the Commonwealth Act was not intended to cover psychiatric injury claims by non‑passengers (50). This conclusion was not thought to be incompatible with the policy of the legislation.
Beaumont J (dissenting) held, to the contrary, that non‑passengers claiming with respect to the death of a passenger under pt IV, had no rights outside the Act, holding in accordance with UK and other authorities, that the Commonwealth Act constituted a code. His Honour's approach was followed in the Supreme Court of Tonga (Ford J) in Cauchi v Air Pacific Ltd [2005] TOSC 7, which held that corresponding legislation was a code which excluded any other legal remedy by passengers and non‑passengers alike. (The court struck out a common law claim for psychiatric injury.)
South Pacific Air Motive Pty Ltd v Magnus is a highly persuasive precedent, although technically not binding, being a ruling of an intermediate appeal court of another Australian jurisdiction. The plaintiffs were non‑passenger observers of an air crash. Their claims were not brought under pt IV of the Commonwealth Act, i.e., they did not claim in respect of the death of or injury to a passenger, but at common law. This decision is authority for the proposition that the Commonwealth Act does not entitle non‑passengers to damages for psychiatric injury. I am satisfied that it should be followed.
In my opinion, pt IV of the Commonwealth Act applies, as far as non‑passengers are concerned, only to liability for damage due to death of a passenger. The damage to which s 35(3) refers is damage of the kind that would be claimable for wrongful death pursuant to the Fatal Accidents Act 1959: see McKenna v Avior Pty Ltd. The damage to which s 35(4) refers is that which is recoverable under s 4 of the Law Reform (Miscellaneous Provisions) Act 1941. For the purposes of s 35(2), the liability of the carrier is, therefore, in substitution for liability under those two Acts.
That construction is in keeping with the requirements that only one action be brought (s 35(6)), and that damages be divided between family members as the court directs (s 35(9)). It is also consistent with there being no liability on a carrier for purely psychiatric injury suffered by a passenger.
Liability for damages for psychiatric injury to a non‑passenger is not, in the context of s 35, 'liability imposed … on a carrier in respect of the death of a passenger'.
The question then is whether s 35(2) precludes a non‑passenger for whose benefit an action is brought pursuant to s 35(6) from bringing a separate common law claim for psychiatric injury, as is the position in this case.
On the authority of South Pacific Air motive Pty Ltd v Magnus, I would hold that s 35(1) properly construed, does not apply to prevent an action in tort for injury to a non‑passenger. In the context of the Act the words 'in respect of the death of a passenger (including the injury that resulted in death)' do not refer to injury suffered by a non‑passenger, even where there is nexus with a passenger who has been killed or injured: Workers Compensation Board of Queensland v Technical Products Pty Ltd. To that extent I conclude that pt IV is not a code that applies so as to limit the rights of non‑passengers to claim in respect of injury to them caused by an aircraft accident.

The scope of the indorsement

Having found that the plaintiffs' claims for psychiatric injury are not excluded by the CACLA, I find that the claims as pleaded are claims in tort which, in my opinion, are not within the scope of the indorsement on the writ of summons for the following reasons.
Order 6 r 1(1) provides:
Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made and the remedy or relief required in the action.
In ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [11], McLure JA held:
The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of the nature of the claim made and the relief or remedy required does not depend on a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.
In Renowden v McMullen [1970] HCA 24; (1970) 123 CLR 584, Barwick CJ and McTiernan J observed (595):
The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, e.g. on some occasions identification of the instrument upon which a claim is founded.
Order 20 r 2(2) provides:
A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include, or form part of, facts giving rise to a cause of action so mentioned.

A statement of claim which exceeds the indorsement on the writ should be struck out, unless the indorsement is amended: Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 238. An indorsement may not be amended to include a claim which is statute-barred: Weldon v Neal (1887) 19 QBD 394; Morgan v Banning (1999) 20 WAR 474.
The indorsement on the writ of summons herein is unambiguous. It notifies the defendants of the plaintiffs' claims for damages pursuant to the CACLA. There is no question that it raises a tortious claim. This is clear from the absence of any reference to any breach of duty, or other wrongful act by the defendants, and the express inclusion of words which refer to the requirements of a statutory claim, namely, an accident on board an aircraft in the course of intrastate commercial transport operations on a flight operated by some or all of the defendants with whom the deceased passengers had contracted for the flight. No facts are pleaded that are capable of establishing a recognisable legal framework for a claim in tort: ABB Services Pty Ltd v Hetherington [14]. The facts set out in the indorsement do not show how such a claim arises, or any relationship between the claim and the loss. This is not a case in which the facts are wide enough to encompass both a statutory claim and a common law claim as in Watch Tower Bible Society and Tract Society of Australia v Sahas [2008] WASCA 51, nor is it a case where the facts set out in the indorsement demonstrated a cause of action without naming it: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 36; (2005) 223 CLR 251.
It is patently clear that no common law claim was contemplated as there no allegation of fault.
As the psychiatric injury claim was pleaded more than three years after the event giving rise to the cause of action, namely, the crash, it is barred by the effluxion of time.
As a matter of law damages for psychiatric injury suffered by a non passenger are not compensable under the CACLA: South Pacific Air Motive Pty Ltd v Magnus.
In my opinion the following paragraphs are liable to be struck out; 1(b) and 1(c), 2(b) and 2(c), 5(e), 6, 11, 13(d), 14 ‑ 17 inclusive, and the following paragraphs also numbered 16 and 17, 20(d) and 21 ‑ 26 inclusive.
The application should be granted, the above paragraphs struck out and the plaintiffs given leave to file and serve a fresh statement of claim within 14 days.