Non-passengers precluded from bringing nervous shock claims against airline carriers arising from death of a passenger

The central issue before the High Court of Australia in Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14 was whether a claim under the general law of tort for damages for negligently inflicted psychiatric harm (nervous shock) consequent upon the death of a passenger during air carriage is precluded under Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

The decision is significant as it means non-passenger claims for psychiatric harm cannot be brought against an airline carrier in the general law of tort.

Background

The appellant engaged the respondent to assist it to carry out by helicopter a low level aerial noxious weed survey. The helicopter was piloted by an employee of the respondent and carrying two of the appellant’s officers. The helicopter struck power lines and crashed, killing all three occupants. Claims were brought against both appellant and respondent by the widow, daughter and son (the Stephensons), being one of the appellant’s officers. The claims were commenced more than two years after the date of the crash and were therefore outside the time fixed by s 34 of the Civil Aviation (Carriers’ Liability) Act for the commencement of claims. The Stephensons were successful at first instance but the NSWCA upheld the respondent’s appeal.

High Court

In the High Court, Kiefel CJ, Bell, Keane and Edelman JJ held the Stephensons were entitled to claim against the respondent under s 28 of the CACL Act but their rights were extinguished by s 34 of that Act before the proceedings were commenced. Accordingly, their appeal was dismissed. Gordon J , in a separate judgment, agreed.

On further appeal to the High Court, the only issue on that appeal was whether the plaintiff’s claims against the respondent were precluded by the Civil Aviation (Carriers’ Liability) Act Pt IV. If they were not, the appellant would be entitled to a greater level of contribution. 

The High Court dismissed the appeal ruling that since the plaintiff’s claims had been commenced more than two years after the crash and outside the limitation date, they were extinguished by that provision.

True mental harm suffered by any member of the passenger’s family following death entitled them to claim against the respondent. The entitlement was not fault-based. The absence of a direct contractual relationship between a non-passenger plaintiff and a carrier does not prevent a claim. The decision of South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 should not be followed. The principal purpose of the Warsaw Convention and the Civil Aviation (Carriers Liability) Act was to limit liability despite domestic law. It followed that the NSWCA decision was correct and the appeal to the High Court was dismissed.

Bernard McAuley, Solicitor
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Web: www.mcauleyhawach.com.au
Email: reception@mhl.net.au  

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