Domestic carriage – liability for passenger injury or death

Governing laws

What laws in your state govern the liability of an air carrier for passenger injury or death occurring during domestic carriage?

New Zealand has a no-fault accident compensation scheme governed by the Accident Compensation Act 2001. The ACC scheme (as it is known) provides compensatory cover for those who suffer a personal injury in New Zealand, regardless of whether the injured party is a New Zealand citizen. The scheme also covers nervous shock or mental injuries that occur as a result of a physical injury or a sexual assault.

The ACC scheme bars proceedings being brought for damages arising directly or indirectly out of any personal injury covered by the ACC scheme, either by the injured party, or by the Accident Compensation Corporation after it has paid compensation to the injured person

Accordingly, an air carrier’s liability for passenger injury or death occurring during domestic carriage is limited to damages arising out of a mental injury not covered by the ACC scheme, and exemplary damages (which is expressly excluded from the ACC scheme’s statute bar), both of which would be governed by ordinary principles of negligence.

The ACC scheme explicitly provides that persons not ordinarily resident in New Zealand do not have cover under the scheme for personal injuries suffered while on board an aircraft (or while embarking or disembarking) during international carriage, or where the person is on the domestic leg of an international flight that they have travelled on. This reflects that the ACC scheme should not derogate from entitlements under the Conventions.

Nature of carrier liability

What is the nature of, and conditions, for an air carrier’s liability?

To the extent that the ACC scheme does not apply, the air carrier’s liability will generally be fault-based, in accordance with the ordinary principles of negligence.

A claim for mental injury that is not covered by the ACC scheme would generally arise following a plaintiff having witnessed an event or making a sudden discovery of negligence. For a passenger to successfully make a claim for mental injury caused by an air carrier’s negligence, they must show that they have suffered a recognisable psychiatric illness over and above what is considered to be ‘normal’ grief, distress and sorrow, as a result of the air carrier’s actions.

In New Zealand, exemplary damages are only awarded in exceptional cases involving outrageous conduct. In negligence cases the plaintiff must show that the defendant has either intended to cause harm or is consciously reckless, which involves being subjectively reckless in the sense of having a conscious appreciation of the risk of causing harm as a component of acting in an outrageous manner.

Liability limits

Is there any limit of a carrier’s liability for personal injury or death?

To the extent that the ACC scheme does not apply, the air carrier’s liability for personal injury or death is not limited under statute; however, a carrier can limit its liability in its conditions for domestic carriage.

Main defences

What are the main defences available to the air carrier?

The main defence to a personal injury action, other than denial that a negligent act or omission was committed, is that the plaintiff was contributorily negligent (see question 16).

Damages

Is the air carrier’s liability for damages joint and several?

Common law provides that an air carrier’s liability for damages arising out of a tortious act is joint and several.

Rule for apportioning fault

What rule do the courts in your state apply to apportioning fault when the injury or death was caused in whole or in part by the person claiming compensation or the person from whom the right is derived?

Section 3(1) of the Contributory Negligence Act 1947 provides that where any person suffers damage as the result partly of his or her own fault and partly of the fault of any other person or persons, the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage. It is likely that a court would place significance on a plaintiff’s age and mental capacity when deciding a just and equitable reduction of the damages recoverable.

Statute of limitations

What is the time within which an action against an air carrier for injury or death must be filed?

The Limitation Act 2010 came into force on 1 January 2011. Section 11 of this Act contains a general principle that any claim for monetary relief at common law must be brought within six years from the date of the act or omission on which the claim is based. The section goes on to state that if a plaintiff has late knowledge of a claim, they can bring proceedings up to three years from the date that knowledge of the relevant facts is gained or is reasonably ought to have been gained. Section 11 also provides for a longstop period of 15 years from the date of the act or omission on which the claim is based, regardless of whether a plaintiff has late knowledge of a claim or not.

Section 4(7) of the Limitation Act 1950 (which applies to causes of actions based on acts or omissions prior to 1 January 2011) provides that an action in respect of bodily injury to any person must be brought within two years from the date on which the cause of action accrued. This provision does, however, allow for the court to agree an extension of the relevant limitation period to six years if it considers that the delay in bringing the action was occasioned by mistake of fact or law, or by any other reasonable cause, or that the intended defendant was not materially prejudiced in his or her defence or otherwise by the delay, such that it would be just to grant the extension.