Grueff v Virgin Australia Airlines Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501

File number(s): NSD 363 of 2020
NSD 366 of 2020
Judgment of: GRIFFITHS J
Date of judgment: 12 May 2021
Catchwords:

AVIATION – two applications for damages under Art 17(1) of the 1999 Montreal Convention as given force by s 9B of the Civil Aviation (Carriers’ Liability) Act 1958 (Cth) (CACL Act) – two passengers consumed “tainted” water onboard international flight from Denpasar to Sydney – passengers complained of various health conditions – whether passengers suffered “bodily injury” within meaning of Art 17(1) – whether “bodily injury” caused by “accident” onboard flight – consideration of “common sense” causation in absence of medical evidence

DAMAGES – claims for non-economic loss – where claims would be precluded by s 16 of the Civil Liability Act 2002 (NSW) (CL Act) – whether Pt 2 of CL Act “picked up” as surrogate federal law in exercise of federal jurisdiction in NSW under Pt 1A of CACL Act – identification of relevant law in federal jurisdiction in accordance with ss 79 and 80 of the Judiciary Act 1903 (Cth) – whether Pt 1A of CACL Act and Art 17(1) of Montreal Convention have “otherwise provided” or are “inconsistent” with CL Act concerning damages – whether Pt 2 of CL Act applies to no-fault personal injury proceedings – legislative history of CL Act unclear
Legislation:

Constitution s 109

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 9B, 9D-9E, 25K, Pt 1A, Pt IV, Sch 1A, Sch 2

Federal Court of Australia Act 1976 (Cth) s 43

Judiciary Act 1903 (Cth) ss 79, 80

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Civil Liability Act 2002 (NSW) ss 3, 3B, 5A, 11-11A, 16, Pt 2

Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Sch 2

Companion Animals Act 1998 (NSW) s 25

Law Reform Act 1995 (Qld) s 6

Legal Profession Uniform Law Application Act 2014 (NSW)

Wrongs Act 1958 (Vic) Pt VBA, s 28LE

Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, 2242 UNTS 309 (entered into force 4 November 2003) Arts 17, 21, 24, 29

Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature 28 September 1955, 478 UNTS 371 (entered into force 1 August 1963) Art 24

Explanatory Notes, Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW)

Explanatory Notes, Civil Liability Bill 2002 (NSW)
Cases cited:

Air France v Saks 470 US 392 (1985)

American Airlines Inc v Georgeopoulos (No 2) [1998] NSWCA 273

Arefin v Thai Airways International Public Co Ltd (unreported, District Court of New South Wales, 21 August 2007)

Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 9; 203 CLR 136

Blunden v Commonwealth [2003] HCA 73; 218 CLR 330

Brannock v Jetstar Airways Pty Ltd [2010] QCA 218; 273 ALR 391

Casey v Pel-Air…

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Details
Case
[2021] FCA 501
Decision Date

CaseChat Overview and Summary

Grueff v Virgin Australia Airlines Pty Ltd involved two passengers who claimed damages under the 1999 Montreal Convention for alleged "bodily injuries" sustained from consuming water on an international flight from Denpasar to Sydney. The Federal Circuit Court had to determine whether the passengers suffered "bodily injuries" caused by an "accident" and if the Civil Liability Act 2002 (NSW) applied to their no-fault claims for damages. The Court found that the passengers did not provide satisfactory evidence of bodily injuries or causation linking their health conditions to the tainted water. Even if causation was assumed, the Court held that the Civil Liability Act applied to limit the passengers' claims for non-economic loss and precluded them from recovering any damages. The Court also found that the passengers were not entitled to costs for their unsuccessful claims.

The Court's reasoning focused on the need for clear evidence of bodily injuries under the Montreal Convention and the unclear legislative history of the Civil Liability Act. The Court held that the Civil Liability Act applied to the passengers' no-fault claims, limiting their damages and precluding recovery for non-economic loss. The Court ultimately dismissed the passengers' claims for damages and ordered them to pay the airline's costs. The Court's decision provides guidance on the application of the Civil Liability Act to no-fault claims under the Montreal Convention and the need for clear evidence of causation and bodily injuries.

Orders

Orders of the court

1. The originating application be dismissed.

2. The applicant pay the respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The need for there to be clear evidence establishing a “bodily injury” is also reflected in the following statement at [704] of the leading text, Shawcross and Beaumont: Air Law (LexisNexis, 4th ed, 2021) (emphasis added): The case law … tells a complex story, but in general supports an understanding of the relevant phrase which requires clearly-evidenced physical injury to the passenger’s body, caused either by the accident or, less certainly, flowing from the psychological trauma the accident produced. The applicants have not persuaded me that any of the health conditions about which they complain constitutes a “bodily injury”. (b) Causation Even if, contrary to my findings above, any of the applicants’ particularised conditions constitutes a “bodily injury” for the purposes of Art 17(1), I am not persuaded on the evidence before me that any of those conditions was caused by the accident involving the ingestion of the tainted water. There is no medical evidence which establishes any link between the applicants ingesting the water and the health conditions which they subsequently experienced. Indeed, as noted above, Dr Crosson’s notes of his consultation with Mr Grueff indicate that Dr Crosson advised Mr Grueff to obtain some pathology on stool samples with a view to determining whether his diahorrea was related to something he may have eaten or drunk in Bali, as opposed to what happened on the aircraft. Dr Crosson may not have told Mr Grueff why he was advising him to obtain such pathology but his notes record the reason why he did so. In cases such as the present, where there is real doubt as to what caused the particularised health conditions, some medical evidence will generally be needed to assist the applicants in discharging their onus. There was no satisfactory medical evidence here. The applicants sought to address the deficiencies in their medical evidence by urging the Court to adopt a “common sense” approach to the requirement of causation, citing well known passages in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ and at 522-524 per Deane J (Gaudron J agreed with both and Toohey J agreed with Mason CJ). There are several points to note about the applicants’ reliance on Stramare. The first is the particular nature of the issue of causation which arose there. The plaintiff was injured when his car ran into a truck which had been parked in a position where it straddled the centre line of a six-lane road. It was night time and the truck’s parking and hazard lights were illuminated. The plaintiff was under the influence of alcohol and was driving at an excessive speed. The question was whether the plaintiff’s own negligence was the sole effective cause of the accident, which accident unquestionably produced his injuries, or whether the defendant owner and driver of the truck was also negligent. In other words, the question of causation was whether the truck driver’s negligence in leaving it parked in the middle of the road was superseded or displaced as a matter of causation by the plaintiff’s negligent driving. The High Court held that the defendant’s negligence was the cause of the accident.

Decision

Reasons for decision

In the interests of comity, I will adopt a similar view with respect to the application of the CL Act to the present proceedings. Conclusion on whether Pt 2 of the CL Act applies here to no-fault proceedings For the reasons given above, the better view is that the amendments later in 2002 to the CL Act had the effect of expanding the operation of Pt 2 to claims for no-fault personal injury damages, which would therefore be applicable to the statutory no-fault regime under the CACL Act and Montreal Convention. The applicants’ claims for damages For the reasons given above, I do not consider that either applicant is entitled to damages under Art 17(1) of the Montreal Convention. If I am wrong and it had been necessary to assess the quantum of damages, I would have made the following determinations. First, for the reasons given above the relevant provisions in Pt 2 of the CL Act are picked up and applied by s 80 of the Judiciary Act. Secondly, I consider that the better view is that Pt 2 of the CL Act would operate to limit the claims for damages as follows:(a)In circumstances where both applicants claim damages for non-economic loss (i.e. general damages) in the amount of $25,000 each, the Table in s 16(3) of the CL Act would operate to preclude them from recovering any amount for non-economic loss. That is because damages for such loss are only recoverable where the amount of the loss is above the threshold of 15% of a most extreme case, which is not the case here. (b)As to Ms Saltmarshe’s claim for an unspecified amount of damages for economic loss “as a cushion or buffer” because she anticipates that her work commitments will be interrupted due to future illness attributable to the accident, she adduced no evidence which establishes any entitlement to such a claim. For completeness, I should also add that, if necessary, I would have rejected Virgin’s claim that the applicants were contributorily negligent. The applicants’ claim for costs Again, on the assumption that I am wrong and the applicants are entitled to recover damages, an issue arises as to the amount of costs which they would recover. Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (NSW) (LPULA Act) limits legal practitioner’s costs in matters concerning “personal injury damages” (which expression is defined as it is in Pt 2 of the CL Act). Where the amount recovered as damages does not exceed $100,000, the limit on costs is the greater of 20% of the amount recovered or $10,000. Applying the reasoning on ss 79 and 80 of the Judiciary Act as discussed above, the LPULA Act is capable of being picked up as a surrogate federal law, perhaps most appropriately as a NSW statute “directed to” the “hearing and determination of the matter” by this Court exercising federal jurisdiction in NSW, and where Commonwealth statutes have not “otherwise provided” (s 79). One issue which needs to be addressed in determining whether the cap on costs in the LPULA Act applies to these proceedings is the relevance of this Court’s statutory power to award costs. The issue is whether there is a relevant inconsistency which affects the operation of s 79. This Court’s power to award costs is explicitly conferred by s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Sub-section 43(2) provides that, except as provided by any other Act, the award of costs is in the discretion of the Court (which, of course, must be exercised judicially). I consider that the reference to “Act” in s 43 is sufficiently broad to encompass a State Act which is picked up by s 79 of the Judiciary Act. Accordingly, because of the wording of s 43(2) of the FCA Act, there is no inconsistency and I consider that the cap on costs imposed by Sch 1 to the LPULA Act would apply to these proceedings. Conclusion

Ratio Decidendi

Legal Principle Established

Finally (and related to the third observation), Keogh J described Zicherman as inapplicable, as the issues raised by s 79 of the Judiciary Act are distinguishable. With great respect, this may involve a misunderstanding of the purpose of s 79, when understood through the lens of Blunden and the role ss 79 and 80 play in the “identification” of the relevant domestic law. If Zicherman is understood as holding that the assessment of damages under the Warsaw Convention is left to domestic law as identified by choice of law rules in the forum state, then Zicherman is not distinguishable because of s 79 of the Judiciary Act. Rather, the consequence of Zicherman, if applied in Australia, would be that the assessment of damages for claims under the CACL Act rely upon identifying the relevant law in accordance with ss 79 and 80, where strictly speaking no “choice of law” is required in federal jurisdiction (see Pfeiffer at [53]; Blunden at [10]). Conclusion on operation of s 80 of Judiciary Act For these reasons, the better view is that s 80 of the Judiciary Act operates to pick up and apply to the present proceedings relevant provisions in Pt 2 of the CL Act as surrogate federal laws. This accords with the assumption underlying the Pel-Air litigation and with the views expressed in two District Court decisions in New South Wales. (2) Does the CL Act apply to damages for no-fault based personal injury? As noted above, Art 17(1) of the Montreal Convention creates a no-fault cause of action against carriers, where, as in the present proceedings, a passenger claims to have suffered a “bodily injury” caused by an “accident” which took place on board the aircraft. Assuming that the CL Act is capable of being picked up under ss 79 or 80, the question then arises whether Pt 2 of the CL Act is “applicable”, as a modification of the common law with respect to the heads of damage and assessment of damage for non-fault based “bodily injury”. This raises two questions:(a)Does “bodily injury” fall within the definition of “personal injury” in the CL Act?(b)Does Pt 2 of the CL Act apply to non-fault based “personal injury” or is it limited in operation to fault-based claims? As to question (a), “injury” is defined in s 11 of the CL Act as including “impairment of a person’s physical or mental condition” and “disease”. This broad definition suggests that the expression of “bodily injury” in Art 17(1) falls within the meaning of “personal injury” in the CL Act. Consideration of question (b) requires a detailed review of the legislative history of the CL Act, which regrettably is unclear. CL Act as originally enacted The long title of the CL Act, as originally enacted, stated that it was (emphasis added) “An Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 (NSW) in relation to costs in civil claims; and for other purposes”.