Liddington v Lloyd Helicopters Pty Ltd

[2005] QDC 343

[2005] QDC 343

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3762 of 2005

BRIAN LIDDINGTON

and

DENISE LIDDINGTON

and

TERENCE RICHARD EVA

and

JAN PATRICIA EVA

and

TANIA SHEREE EVA

First Applicant

Second Applicant

Third Applicant

Fourth Applicant

Fifth Applicant

and

LLOYD HELICOPTERS PTY LTD
(ACN 907 916 912)

and

CENTRAL QUEENSLAND HELICOPTER
RESCUE SERVICE LTD
(ACN 067 116 670)

First Respondent

Second Respondent

BRISBANE

..DATE 14/10/2005

ORDER

CATCHWORDS: Personal Injuries Proceedings Act 2002 s 43 - Uniform Civil Procedure Rules r 65 - application for leave to start a proceeding on eve of expiration of 2 years from an aviation accident - although standard limitation period was 3 years, there were serious issues whether some at least of the 6 would-be plaintiffs' claims had to be pursued within 2 years under legislation (including Commonwealth legislation) about aviation - respondents agreeable - application granted (for a multi-party proceeding under r 65)

HIS HONOUR: This is far from the usual application made on the eve of the expiration of the limitation period under section 43 of the Personal Injuries Proceedings Act 2002 in circumstances where the pre-litigation steps required by that Act have not been completed.

The number of applicants has increased from five to six by the addition of a child whose litigation guardian is the 5th applicant (and the child's mother).

The Court grants leave to the applicants to file and read the appropriate amended originating application.

To the extent that they can be, the respondents have been cooperative.  The solicitors on both sides are joining in signing a "Consent to Order of Registrar" which I have marked Exhibit 1.  It is plainly in their interests to have all claims collected together and to avoid the delay and repetition of effort that a later claim by an infant enjoying the benefit of a longer period of limitation could entail.

The incident giving rise to the claims of the would‑be plaintiff was a helicopter crash which occurred on a flight from Mackay to Hamilton Island on or about 17 October 2003.

The first two applicants are the parents of Craig Liddington who was a paramedic on board.  He died in the crash.  The death also occurred of Stuart Eva who was a crewman.  The third and fourth applicants are his parents.  The fifth applicant had been his wife.  The child mentioned is his.

The roles played by the three respondents are, respectively, as employer of the pilot, employer of Stuart Eva, and owner of the helicopter.

Given the cooperative attitude shown by the respondents, there is no need for any detailed analysis of the time limits which the applicants may face from the point of view of starting the claims.

Of course the ordinary limitation period would be three years under the Limitation of Actions Act 1974. However, the applicants are fearful that the effect of the Commonwealth Civil Aviation (Carriers Liability) Act 1959 may be that there is a two year time limit which will expire after the impending weekend. That two year period, it has been determined, cannot be extended. See Timeny v British Airways Plc (1991) 102 ALR 565.

There is a reference in section 6(5)(b) of the Personal Injuries Proceedings Act to matters under the Civil Aviation (Carriers Liability) Act 1964 not being affected. The Act under reference is State legislation which adopts various provisions from the Commonwealth Act.

It seems there is uncertainty about which claims may fall within the legislation focused on aviation and which will not.  Mr Horvath has referred the Court to obiter comments attributed to two of the Judges in Pacific Air Motice Pty Ltd v Magnus [1998] 1107 FCA to the effect that nervous shock claims by non-passengers (as opposed to passengers) were not excluded by the Commonwealth provision considered.  That sounded hopeful for the applicants from one aspect.  The Judges' reasons were not available.

There is case law suggesting that a dependency claim in circumstances such as the present doesn't fall under the usual State provisions, locally, the Supreme Court Act 1995, but under the legislation about aviation: see Victorian WorkCover Authority v Andersen [2000] VSC 461.

From one point of view it may be seen as inimical to the purposes of the Personal Injuries Proceedings Act for the Court to authorise the starting of a proceeding a year sooner than may be strictly necessary.

It's not absolutely clear that the circumstances really are ones of urgency which is the basis for the Court acting under section 43. It would be unrealistic, however, for the Court not to take a sympathetic view of the circumstances of people like the present applicants when there is no good reason for involving them in battles about complicated legal issues. The respondents should be commended for their cooperative attitude. I'm content to treat the circumstances as ones in which the expiry of a limitation period is imminent.

I make an order in terms of the initialled draft which contains slight amendments when compared with the Consent order by adjourning the application to a date to be fixed rather than to the Registry.  Liberty to apply is granted in replacement paragraph 7. 

Part of the order refers to Rule 65. The proceeding authorised pursuant to section 43 is identified as "a
multi-party proceeding in the Court for damages pursuant to Rule 65."  Reference to the Rule doesn't reveal any particular role for the Court.  I see no objection to its authorising such a proceeding, which may be seen to immunise the applicants against assertions in the future that they ought to proceed by way of separate claims.  Orders as per initialled draft which incorporates the customary stay once a proceeding is started.

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