SOUTH PACIFIC AIR MOTIVE PTY LIMITED and GROUP AIR PTY LIMITED v. KENNETH MAGNUS, CIVIL AVIATION SAFETY AUTHORITY and AIRSERVICES AUSTRALIA
No. NG 1079 of 1997
FED No. 1107/98
Number of pages - 55
Aviation Law
(1998) 157 ALR 443
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BEAUMONT, HILL AND SACKVILLE JJ
Aviation Law - Aircraft - Carriage by air - Claim for psychological injury suffered by passengers and non-passengers following the ditching of an aeroplane - Claims made after expiration of two years and in reliance on causes of action other than liability under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) - Whether the Civil Aviation (Carriers' Liability) Act embraces psychological injury suffered by passengers and non-passengers as a result of an aeroplane accident.
Carriage By Air Act 1935 (Cth), s 3.
Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 8, 10, 11, 12, 13, 14, 15, 16, 25A, 25D-25N, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40.
Civil Aviation (Carriers' Liability) Amendment Act 1991 (Cth).
Trade Practices Act 1974 (Cth), ss 52, 53, 82.
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4.
Workers' Compensation Act 1916 (Qld), s 8.
Wrongs Act 1936 (SA), ss 23A, 23C.
Compensation (Fatal Injuries) Act 1974 (NT), s 10.
Carriage by Air Act 1932 (UK), s 1.
Carriage by Air Act 1961 (UK), ss 3, 4.
Federal Court Rules, O 20 r 2, O 29 r 2.
Convention for the Unification of Certain Rules Relating to International Carriage by Air, open for Signature at Warsaw on 12 October 1929 (Warsaw Convention), Arts 1, 3, 17, 18, 19, 20, 21, 22, 23, 24, 25, 29, 36.
Protocol to Amend the Warsaw Convention, (Hague Protocol) Art 19.
K M Beaumont, "Need for Revision and Amplification of the Warsaw Convention" (1949) 16 Journal of Air Law and Commerce 395.
J G Fleming, The Law of Torts (8th ed 1990).
P C Haanappel, "The Right to sue in Death Cases under the Warsaw Convention" (1981) 6 Air Law 66.
A F Lowenfeld and A I Mendelsohn, "The United States and the Warsaw Convention" (1967) Harv L Rev 497.
H Luntz, Assessment of Damages (3rd ed 1990).
Shawcross and Beaumont, Air Law (4th ed).
C Whitting, "A Primer on the Modern Law of 'Nervous Shock'" (1998) 22 Melbourne L Rev 62.
Adelaide Steamship Co Ltd v Spalvins (1988) 152 ALR 418, cited.
Air France v Saks 470 US 392 (1985), cited.
American Airlines Inc v Georgeopoulos (NSW CA, 26 September 1996, unreported), discussed.
American Airlines Inc v Georgeopoulos (No 2) (NSW CA, 5 August 1998, unreported), cited.
Anderson v Liddy (1949) 49 SR (NSW) 320, cited.
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited.
Daddon v Air France (1984) 7 S& B Av R 141, cited.
Eastern Airlines, Inc v Floyd 499 US 530 (1991), discussed.
Fishman v Delta Air Lines Inc 132 F…
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- AGLC
- South Pacific Air Motive Pty Ltd & Anor v Magnus, Kenneth & Ors [1998] FCA 1107 ((1998) 157 ALR 443)
- Case
- [1998] FCA 1107
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court was required to decide were whether psychological injuries, independent of physical injuries, could be considered 'personal injury' under section 28 of the Act, whether Part IV of the Act excluded claims for such psychological injuries, and whether the exclusion applied equally to passengers and non-passengers. The court needed to interpret the Act and determine the extent to which it limited liability for psychological injuries.
The court found that, in the circumstances of the present case, psychological injuries independent of physical injuries could be considered 'personal injury' under section 28 of the Act. However, the court also concluded that Part IV of the Act did operate to exclude claims for psychological injuries independent of physical injury in respect of passengers. This exclusion did not apply to non-passengers, as they were not covered by the terms of Part IV. The court's decision hinged on the interpretation of the statutory language and the specific circumstances of the claimants.
The court ordered that the appeal be allowed in part, substituting specific answers to the questions regarding the interpretation of the Act. The court also directed the parties to file written submissions on the issue of costs within the specified timeframe.
Orders
Orders of the court
1. The appeal be allowed in part.
2. The following answers should be substituted for those given by the primary Judge in answer to the questions determined separately from and prior to all other issues in the proceedings:
Question 1:
Is a cause of action on behalf of a passenger whose alleged injuries are psychological injuries independent of physical injury an action for damage sustained by reason of 'personal injury' suffered by a passenger within the meaning of the term in s 28 of the Civil Aviation (Carriers' Liability) Act 1959?
Answer: In the circumstances of the present case, Yes.
Question 2:
Does Part IV of the Civil Aviation (Carriers' Liability) Act 1959 operate to exclude the causes of action pleaded in the Amended Statement of Claim in respect of claims by passengers for psychological injuries independent of any physical injury?
Answer: Yes.
Question 3:
Does Part IV of the Civil Aviation (Carriers' Liability) Act 1959 operate to exclude the causes of action pleaded in the Amended Statement of Claim in respect of claims by non-passengers for psychological injuries independent of any physical injury?
Answer: No.
THE COURT DIRECTS THAT:
1. On the question of costs, the appellants file written submissions within seven days and the respondents file written submissions within seven days thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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