A Review of Aviation Law in Australia – Considerations When Establishing the Liability of Australian Aircraft Carriers and Others in Civil Compensation Claims

Introduction

Aviation in Australia is governed by a combination of industry and regulatory bodies that deal with specific aviation industry sectors. The laws concerning the liability of aircraft carriers in Australia are administered under international conventions and domestic legislation.

Tragically, four people died, and eight others were injured when two helicopters collided mid-air near Sea World on the Gold Coast on 2 January 2023. Complex and dated legislation governs the legal compensation claims arising from these incidents. Accordingly, this can make reaching a favourable legal outcome a lengthy and complex ordeal for the victims and their families, who usually have suffered significant physical and psychiatric trauma due to the crash.

Identifying the parties 

Parties to a civil claim relating to liability for an aviation accident typically include the pilot, operating company, aircraft manufacturer, and the entity that maintained the aircraft. Identifying the appropriate entity to sue in an aviation case will depend on determining the primary cause of the accident that resulted in the injury or loss of the victims.

Aircraft incidents typically arise from several factors, including pilot error or negligence, failure of a mechanical part of the aircraft or unsafe operating procedures.

Therefore, if the pilot’s negligence caused the incident, the pilot and the aircraft company would typically be held liable. Similarly, manufacturers or maintenance companies are generally responsible if the cause is poorly maintained aircraft or parts.

The Civil Aviation Safety Authority and the Australian Transport Safety Bureau investigate the sources of aircraft incidents in Australia, coupled with a police investigation and subsequent coronial investigation.

 Limitations

Carrier’s liability and insurance arrangements are addressed in the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). This Act establishes several frameworks of responsibility to protect the carrier, its employees, and passengers.

Legislation governing Australian air carriers and their liability were founded on international treaties signed and ratified into Australian statute by way of the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth)[1]. The legislation now establishes airline liability in case of death or injury to passengers and in cases of delay, damage, or loss of baggage. Where legislative provisions do not cover Australian domestic carriage and travel, Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) imposes liability on a carrier for injury or death caused to a passenger or for loss or damage to a passenger’s baggage. In cases where no legislative provisions apply, an action may be brought under common law.

One such limitation of aviation legislation is the lack of coverage for passengers to claim compensation for delay or cancellations. While the Competition and Consumer Act 2010 provides generalised guarantees and consumer protections, there are no specific legislation with regard to the aviation sector. Passengers are forced to rely on contractual terms and conditions presented at time of booking. However, it may be possible to seek compensation under the Montreal Convention 1999 for flight delays except if the delay was not within the control of the aviation company or the company took all reasonable steps to avoid the delay[2].

The Civil Aviation Act provides, there is a strict limitation of two years to bring a claim for injuries suffered in an aviation crash in Australia [3]. In Parkes Shire Council v South West Helicopters Pty Ltd [2019], family members of Mr Stephenson, a passenger killed on a helicopter engaged by the appellant, were held not to be entitled to claim for negligent infliction of psychiatric harm (nervous shock). Stephenson’s right to claim under section 28 of the Civil Aviation Act was extinguished by section 34 which imposed a two year cap on claims. This 2-year period expired before the proceedings began.

Strict liability

Under section 3A of the Civil Aviation Act 1988 (Cth), there is strict liability on owners, operators, hirers, and pilots who are required not to operate an aircraft in such a way as to endanger or in a manner that could endanger, the life or property of another person. In Australia, strict liability means that there are no fault elements to be proved in establishing the offence, but a defence of mistake is available [4]. This effect is that injured persons are not required to verify that the carrier was liable for the aviation crash. That the airline was the entity operating the flight and that the person was injured during the flight is sufficient.

State vs Commonwealth legislation 

Australia has state and federal legislation that determines a carrier’s liability. For practitioners of aviation law and others seeking to rely on the interconnected provisions of the State and Commonwealth carriers’ liability acts, it is critical to consider the application of each Act to ensure claims are brought forward in the proper jurisdiction. In Sydney Seaplanes Pty Ltd v Page [2021], a seaplane crashed resulting in the death of a passenger. The passenger’s father commenced proceedings in the Federal Court of Australia seeking damages under the Act incorporated into New South Wales law by section 5 of the Civil Aviation (Carriers’ Liability) Act 1964 (NSW). The Federal Court held that it did not have jurisdiction to determine the claim as the flight occurred within New South Wales.

Identifying the appropriate cause of action 

A party initiating a civil claim concerning the carrier’s fault must consider whether the liability exists under statute or common law. In Stevens v Professional Helicopter Services Pty Ltd [2020], Mr Stevens was a passenger in a helicopter crash operated by Professional Helicopter Services. The Court considered whether liability for Mr Stevens’ injuries arose under legislation or common law. Under the legislation, any damages that Mr Stevens could be awarded were capped, whereas damages under common law can include loss of earnings, medical and hospital expenses general damages for pain and suffering and loss of enjoyment of life. The court held that the legislation applied and Mr Stevens’ claim under common law was dismissed. While typically more difficult to argue, a claim under common law would generally be awarded beyond the maximum cap of $925,000 imposed under law.

Summary

The liability of Aircraft carriers in Australia is governed by various legislation and is subject to significant limitations. These are a 2-year limitation period, a statutory cap on carriers on quantum (currently $925,000) and strict liability on carriers’ actions. Furthermore, customers can bring common law claims against parties in addition to the airline, which is not subject to the statutory cap and strict liability provisions. These claims can only be considered once the cause of the crash is thoroughly investigated.

Aviation claims can be, and typically are, incredibly complex. Accordingly, legal practitioners must be fully aware of the relevant legislation governing such allegations and ensure that the cause of the crash is thoroughly investigated to ensure that victims of aviation crashes and their families are fully compensated for their injuries.

At Salerno Law, the expert lawyers in our Aviation Law Department are able to provide the best legal advice to companies, individuals and families affected by aircraft related accidents having unique experience in acting in Australia’s most significant aviation matters.

Please contact our Mr Cliff Savala (c.savala@salernolaw.com.au) should you require any assistance or have any legal queries pertaining to any aircraft related matter.

Author Samuel Kerr

[1] Montreal Convention 1999, Article 21.

[2] Montreal Convention 1999 Article 19.

[3] Civil Aviation Act 1988 (Cth), s 34.

[4] Criminal Code Act 1995 (Cth), s 6.1.