The ‘plain language’ of the Montreal Convention continues to generate legal controversy in Australia in terms of passenger rights to claim compensation for injury on an aircraft.

Currently, there are two controversial issues:

1. Whether State Law applies to limit the right to claim compensation; and

2. Whether the two year limitation period to bring an action is final.

In this article we examine recent cases which deal with these two issues.

Whether State Law applies to limit the right to claim compensation

In Di Falco v Emirates [2018] VSC 472 (24 August 2018), the Supreme Court of Victoria (Keogh J) had to determine whether a passenger's rights to claim compensation for injury were limited by State Law.

The context is that under State Law (Part VBA of the Wrongs Act 1958 (Vic)), claims for non-economic loss (pain and suffering, loss of amenities of life and loss of enjoyment of life) are restricted to significant injuries - that is, an impairment of more than 5 per cent of whole person impairment. Claims for non-economic loss are additional to claims for medical and hospital expenses, and economic loss such as loss of earnings. They can be significant amounts.

In this case, the plaintiff injured her right ankle when she was making her way to the toilet facilities in the aircraft cabin on board an Emirates flight from Melbourne to Dubai.

The right to claim compensation is found in Article 17 of the Montreal Convention, which is given force of law in Australia (for international travel) under s 9B and s 9E of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). Relevant extracts are:

Article 17: The carrier is liable for ... death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft ...

Section 9E: ... the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of a passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

Justice Keogh exercised Federal Jurisdiction in determining this claim, under s 79 of the Judiciary Act 1903 (Cth). He concluded that the Wrongs Act did not apply to restrict the claim for non-economic loss because the Wrongs Act applied only where the injury was caused by the fault of another person.

Note: A passenger is not required to prove the injury was caused by the fault of the airline because Article 17 imposes strict liability on the airline if an accident occurs. But the airline can defend a claim by alleging the passenger was at fault (negligent) under Article 20.

While this was enough to dispose of the claim, Justice Keogh addressed the wider proposition that State Law applies to claims under the Montreal Convention, as formulated by Justice Scalia who delivered the opinion for a unanimous U.S. Supreme Court in Zicherman v Korean Air Lines Co Ltd 516 US 217 (1996):

The most natural reading of this Article is that, in an action brought under Article 17, the law of the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for. Those questions are still to be answered by the domestic law selected by the courts of the contracting States. (at 225)

Justice Keogh distinguished Zicherman in that s 9E of the Carriers' Liability Act is 'in substitution for any civil liability of the carrier under any other law in respect of the injury'. Therefore s 79 of the Judiciary Act does not 'pick up' State Law to determine an entitlement to damages. 

Comment - The significance of this decision is that the airline failed in its attempt to apply the State Law - the Wrongs Act - to ‘filter out’ claims for minor injuries sustained on an aircraft.

Whether the two year limitation period in which to bring an action is final

In Halime v Singapore Airlines Ltd [2018] NSWCA 155 (16 July 2018) the Court of Appeal Supreme Court of New South Wales (White JA, Sackville AJA) considered the passenger's claim for psychological injury suffered as a result of seeing an engine on fire on a flight from Athens to Singapore in 1992. 

The Court concluded that the injury was not compensable as there was no 'bodily injury' under Article 17. In addition, the Court had no difficulty in dismissing the passenger’s claim because it was brought 20 years after the expiry of the two year limitation period under Article 29 of the Convention which applies to international air travel.

Article 29: The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date the aircraft ought to have arrived, or from the date on which the carriage stopped.

Note: Australian domestic law - s 34 Civil Aviation (Carriers' Liability) Act 1959 (Cth), has adopted the form of Article 29 for accidents on domestic flights.

In Halime, the Court cited the decision of the High Court of Australia in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38, in which the Court considered a claim by a widow for compensation for the death of her husband, a passenger in helicopter which crashed. The question was whether the pleadings, which were issued within the two year limitation period, could be amended to refer to the Carriers' Liability Act: the amendment to be made outside of the two year period. The High Court held the pleadings could be amended.

Street v Arafura Helicopters Pty Ltd [2018] NTSC 15 (12 March 2018) is a recent illustration of how final the limitation is. In that case, a Writ to commence a claim for damages sustained as a result of a helicopter crash landing was delivered to the Court Registry on the last day possible - exactly 2 years after the accident occurred. Through a litany of errors, including non-compliance with the Court Rules as to form, the Writ was rejected. The errors were corrected and the Writ was accepted and sealed by the Court a few weeks later, back-dated to the date of filing.

The Supreme Court of the Northern Territory of Australia (Southwood J) found that it was on the date of acceptance not on the date of filing that the jurisdiction of the Court was invoked. Therefore, the claim was extinguished as it was not brought within the two year limitation period.

Comment - The two year limitation period for claims for injuries and death on an aircraft is final – it is not like a limitation period for other actions which can be extended. It is a condition precedent to the making of a claim.