Jones v Airlines of Tasmania Pty Ltd

[2020] TASSC 5

[2020] TASSC 5

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Jones v Airlines of Tasmania Pty Ltd [2020] TASSC 5

PARTIES:  JONES, William Henry in his own right and as Administrator of the Estate of the late Timothy Peter Jones

JONES, Robert Thomas

JONES, Caitlin Jane

v
  AIRLINES OF TASMANIA PTY LTD

FILE NO:  3737/2016
DELIVERED ON:  11 March 2020
DELIVERED AT:  Hobart
HEARING DATE:  5 March 2020
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Civil Proceedings in State and Territory Courts – Ending proceedings early – Summary disposal – Generally – Claim not clearly untenable – Application to strike-out pleadings dismissed.

Aust Dig Procedure [1296]

REPRESENTATION:

Counsel:
           Plaintiffs:                A Walker      
           Defendant:              T Brennan    
Solicitors:
           Plaintiffs:                Shine Lawyers  
           Defendant:              Norton White

Judgment Number:          [2020] TASSC 5
Number of paragraphs:   15                  

Serial No 5/2020

File No 3737/2016

WILLIAM HENRY JONES in his own right and as Administrator of the Estate of the late TIMOTHY PETER JONES and ROBERT THOMAS JONES and
CAITLIN JANE JONES v AIRLINES OF TASMANIA PTY LTD

REASONS FOR JUDGMENT  HOLT AsJ
  11 March 2020

Introduction

1On 29 December 2014 a light aircraft operated by the defendant crashed into the sea off the Tasman Peninsula in Tasmania.  The pilot and the only passenger, Mr Timothy Jones, were killed.  Mr Jones was survived by his three adult children who are the plaintiffs in the action. 

2The action was commenced by writ issued on 15 December 2016 endorsed with a claim confined to damages pursuant to the Civil Aviation (Carrier's Liability) Act 1959 (Cth) (the Commonwealth Act), s 31(1)(a) and s 35.  The statement of claim included a claim for damages for "nervous shock".  The action having been brought pursuant to Part IV of the Commonwealth Act, which comprises ss 26 – 41, had to be commenced, as it was, within two years of the day of the flight, otherwise the right of action was extinguished pursuant to s 34.  Section 31(a) limits the damages recoverable to a maximum amount of $725,000 in respect of each passenger killed or injured.  Section 35 relevantly provides that the liability of the carrier is in substitution for any civil liability 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.  Section 35 goes on to set out a number of subsections modelled on Lord Campbell's Act, which created a right of action for family members in respect of the death of a relative.  The Commonwealth Act has force in Tasmania in respect of intrastate flights by reason of the Civil Aviation (Carrier's Liability) Act 1963 (Tas). 

3In South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 it was held by majority of the Full Court of the Federal Court of Australia that claims for damages for purely psychological injury were not covered by Part IV of the Commonwealth Act, but that the Act did not operate to exclude other causes of action being maintained by non-passengers for purely psychological injuries. It is to be noted that Magnus was not directly concerned with the death of a passenger and the liability arising in respect of that death, although in the course of his reasons Sackville J had referred to s 35.

4In May 2017, with leave, the plaintiffs amended their writ and statement of claim, presumably on the basis of the decision in Magnus, to add claims for damages for psychiatric injury under the Fatal Accidents Act 1934 (Tas) and the general law of tort as modified by Part 8 of the Civil Liability Act 2002 (Tas).

5In May 2019 the High Court published its decision in Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14; 93 ALJR 607. It was concluded, contrary to the decision in Magnus, that claims under the general law of tort for damages for negligently inflicted psychiatric harm consequent upon the death of a passenger during air carriage to which Part IV of the Commonwealth Act applies are precluded by the Act.  The plurality did not touch upon the question of whether a claim by a non-passenger for damages for psychiatric injury in respect of the death of a passenger could be maintained under Part IV of the Act.  Again, presumably as a result of the decision in Parkes, the plaintiffs, by interlocutory application filed 3 March 2020, have applied to amend the statement of claim by deleting the claims under the Fatal Accidents Act and under the general law of tort as modified by the Civil Liability Act and by confining the claim for damages for psychiatric injury to claims under Part IV of the Commonwealth Act, as was the case when the proceeding commenced. 

The applications

6There is the plaintiffs' application to amend referred to in the preceding paragraph.  There is also an interlocutory application filed by the defendant on 7 October 2019;  firstly, seeking an order striking out those parts of the existing statement of claim asserting causes of action under the Fatal Accidents Act and the general law of tort for damages for negligently caused psychiatric injury;  secondly, seeking an order striking out the claim for damages for psychiatric injury under the Commonwealth Act;  and thirdly, in the alternative to the second order sought, seeking an order that the question of whether damages for mental harm can be awarded under s 35 of the Commonwealth Act be tried separately and first.  The plaintiffs' consent to the separate trial of the question. 

The approach to summary dismissal on pleading applications

7The following passage at [8] – [10] from the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 describes the standard required for summary dismissal:

"8       The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. … It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. (at p129)

9        At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'. (at p129)

10 As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)"

8Here, so far as the claims under the Fatal Accidents Act and the general law of tort are concerned there is the High Court authority in Parkes, to which I have referred, standing directly in the path of the plaintiffs. 

9So far as the claim under the Commonwealth Act for damages for psychiatric injury is concerned, the researches of counsel have revealed only one case, decided by a single judge almost 40 years ago, which is arguably in point and which counsel for the defendant asserts is authority for the proposition that the claim is not available under Part IV of the Commonwealth Act.  That case is McKenna v Avior Pty Ltd (1981) WAR 225. The decision, if counsel for the defendant is correct about its interpretation, gives rise to a tension between the desirability of there being judicial comity unless the decision in point can be identified as clearly wrong (McKenzie v State of Tasmania [2011] TASSC 42 at [29]) and the undesirability of stultifying the development of the law. As observed by French CJ and Gummow J at [25] in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118:

"Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application … could justifiably conclude that the proceedings had no reasonable prospect of success."

10The power to disallow a pleading is discretionary.  Except in clear cases parties should not be deprived of access to a hearing in the ordinary way, but in clear cases a defendant should not be exposed to the inconvenience and expense of a futility.  The fact that an application for summary dismissal involves resolution of a complex question of law does not mean that there cannot be summary dismissal but, in such circumstances a court may decline to deal with such a question and allow it to proceed to trial in the ordinary way.  Theseus Exploration NL v Foyster [1972] HCA 41 at [4]; (1972) 126 CLR 507 at 514, per Barwick CJ.

The defendant's argument that a claim by a non-passenger for damages for psychiatric injury consequent upon the death of a passenger is not available under Part IV of the Commonwealth Act

11As I have said, the only case uncovered by the researches of counsel which arguably is in point is the decision in McKenna.  The reported judgment is short and runs to less than four pages.  There, the mother of a passenger who was killed in an aircraft crash in Western Australia brought an action for damages under the Commonwealth Act, Part IV.  Her claim comprised a claim for reimbursement of funeral expenses, a claim for damages for the loss of pecuniary advantages which she would have derived from her son had he not been killed and a claim for damages for her grief and distress.  It was decided that her claim for damages for grief and distress, being incapable of being evaluated in monetary terms, was not encompassed by Part IV of the Act.  Hill J concluded that the legislation, insofar as it applies to claims by family members in respect of the death of a passenger:

"… manifests the intention of Parliament to preserve, in respect of claims under the Commonwealth Act, the balancing principle which has been applied by the courts in England and Australia in relation to claims under the Fatal Accidents Act 1846 and other enactments modelled thereon whereby a right of action was conferred for the benefit of dependents on the personal representative of a person whose death had been caused by the wrongful act, neglect or default of another.  The interpretation adopted by the courts from the beginning of s 2 of the Fatal Accidents Act 1846 which permitted the jury – a function now performed by a judge – 'to give such damages as they may think fit proportionate to the injury resulting from such death' was that Parliament intended the jury to make a comparison between the position before and after death and required that compensation be assessed 'by ascertaining the balance of the pecuniary loss to the deceased's relatives from his death over the pecuniary gains accruing from that event':  per Dixon J (as he then was) in Public Trustee v Zoanetti (1945) 70 CLR 266 at 278.

…

It is well established, also, that only injuries capable of evaluation in monetary terms can found claims for damages under the Fatal Accidents Act 1846 and the various enactments modelled thereon.  The loss, however, need not be a monetary loss:  a loss of services capable of being valued in pecuniary terms will suffice as also will the reasonable expectation at time of death of future financial benefits or the reasonable expectation at time of death of future financial benefits or the reasonable expectation of services in the future capable of evaluation in monetary terms … But an injury which cannot be so evaluated such as grief or mental suffering of a dependent by reason of the death the courts have held consistently for more than a century is not capable of founding such a claim save where express statutory provision is made therefor  ... in Taff Vale Railway Co v Jenkins [1913] AC 1 at 4 Lord Haldane said: 'The basis [of the action] is not what has been called solatium, that is to say, damages for injured feelings or on the ground of sentiment but damages based on compensation for a pecuniary loss'. In relation to that loss Dixon J said in Zoanetti's case: 'The pecuniary loss to which the damages are confined consists in the loss of material benefits or the reasonable prospects of material benefits which depended upon the continuance of life of the deceased'.

…

The subject matter of s 35 of the Commonwealth Act is the liability of the carrier in respect of the death of a passenger. … It seems to me that if the legislature had intended to depart from the established principle that nothing can be given by way of solatium for the injured feelings and 'to go the extreme length, not only of giving compensation for pecuniary loss, but a solatium to all the relatives enumerated in sub-s (5) a wife or husband, parents, step-parents, grandparents, brothers, sisters, half-brothers, half-sisters, children, step-children, and grandchildren language more clear and more appropriate for this purpose, would have been employed': per Coleridge J in Blake v Midland Railway Co, supra, at 237.

…

In the present case I accept the plaintiff's evidence that she has experienced grief and mental anguish in consequence of her son's death and that she will continue to experience unhappiness and distress by reason of the loss of his society and affection.  Such losses cannot be assessed in monetary terms and so cannot support a claim for damages." 

12There are two observations which I make about the decision.  Firstly, his Honour was concerned with a claim for damages by way of solatium for injured feelings without there being any claim for resultant pecuniary loss, whereas the claim by the plaintiffs in the present case is for pecuniary loss arising not merely from emotions but as a result of psychiatric injury.  Secondly, although the Commonwealth legislation takes up aspects deriving from Lord Campbell's Act, it does not mirror those provisions.  For example, unlike Lord Campbell's Act type legislation, which does not extinguish other rights, Part IV of the Commonwealth Act excludes other rights of action. 

13Counsel for the defendant, by way of comparison with Lord Campbell's Act, put forward a number of matters of construction favouring an interpretation of Part IV of the Commonwealth Act in a way which confines damages in the same way that damages are confined under Lord Campbell's Act.  However, there are differences.  For example, Part IV the Commonwealth Act excludes other civil liabilities relating to injuries to passengers which do not result in death but does not expressly exclude damages for psychiatric injury suffered by a first responder or a family member of a passenger as a result of injury to the passenger.  This may result in an arguably anomalous situation where, if the defendant is correct in its argument, family members suffering psychiatric injury as a result of injury to a passenger can recover damages whereas family members of a deceased passenger suffering psychiatric injury cannot recover damages.

Conclusion

14The claims by the plaintiffs under the Fatal Accidents Act and under the general law of tort are clearly untenable having regard to the decision in Parkes and should be struck from the existing pleading.  The plaintiffs consent to these claims being struck out if leave to amend, as sought, is given.  There is a serious question to be tried as to whether the plaintiffs can recover, under Part IV of the Commonwealth Act, damages for pecuniary loss resulting from psychiatric injury and so this claim will not be struck from the existing pleadings and leave to amend as proposed by the plaintiffs will be given.  An order for the separate trial of the question identified in the defendant's interlocutory application is appropriate.  The necessary background facts to enliven the question are not in dispute and the question is essentially one of law, the resolution of which has the potential to advance negotiations; to save the time of the litigants; to save the time of the Court and to save expense.  The parties consent to the making of the separate trial order. 

Orders

15I make the following orders:

(1)By consent, the following parts of the amended statement of claim dated 26 May 2017 are struck out:

(i)       paragraph 1, all of the words after the words "(the deceased)";

(ii)      the second sentence in each of paragraphs 2, 3 and 4;

(iii)     the whole of paragraphs 17 to 20;  and

(iv)     the whole of paragraph 23.

(2)The plaintiffs have leave to amend the statement of claim in the form attached to their interlocutory application filed 3 March 2020.

(3)      By consent, the following question is to be tried separately and before any other question:

"Whether damages for mental harm can be awarded under s 35 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth) applied by s 5 of the Civil Aviation (Carrier's Liability) Act 1963 (Tas)?"

(4)The hearing in respect of any questions arising as to costs stands adjourned sine die to be listed upon the request of a party.