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Applicable treaties

Major air law treaties

To which major air law treaties related to carrier liability for passenger injury or death is your state a party?

Australia is party to:

  • the Montreal Convention (1999) (ratified in 2008 and effective in 2009);
  • the Tokyo Convention (1963) (ratified in 1970); and
  • the Warsaw Convention (1929) (ratified 1935) and its amending instruments; the Hague Protocol (1955) (ratified 1959), the Guadalajara Convention (1961) (ratified 1964) and the Montreal Protocol No 4 (1975) (ratified 1998).

Provisions of the Montreal Convention, the Warsaw Convention, the Hague Protocol, the Guadalajara Convention and the Montreal Protocol No. 4 are implemented into Australia law by the Civil Aviation (Carriers’ Liability) Act 1959.

Provisions of the Tokyo Convention are implemented by the Crimes (Aviation) Act 1991.

International carriage – liability for passenger injury or death

Montreal Convention and Warsaw Convention

Do the courts in your state interpret the similar provisions of the Montreal Convention and the Warsaw Convention in the same way?

Yes. Australian courts largely follow international courts in the interpretation and implementation of the Montreal Convention and the Warsaw Convention. The similar provisions in the Warsaw Convention will generally inform the interpretation of those in the Montreal Convention, as is the case in other international jurisdictions.

Australian courts apply the principle that Australian legislation designed to give effect to international law, such as the Conventions, must to the extent possible be given the same interpretation as courts in other states that subscribe to that law, such as the interpretation and application of the term ‘accident’ in both Conventions.

Do the courts in your state consider the Montreal Convention and Warsaw Convention to provide the sole basis for air carrier liability for passenger injury or death?

For international air carriage to and from Australia, the Montreal Convention and Warsaw Convention provide the sole basis for air carrier liability for passenger injury or death and it is in substitution for any civil liability of the carrier under any other law.

However, for international air carriage, liability is not excluded for the carrier to indemnify an employer where workers compensation payments have been made to an employee who was injured during air carriage, and the air carrier is at fault.

Definition of ‘carrier’

In your state, who is considered to be a ‘carrier’ under the Montreal and Warsaw Conventions?

Part 1A of the Civil Aviation (Carriers’ Liability) Act 1959, which implements the Montreal Convention into Australian law defines an Australian international carrier as a carrier designated, nominated or otherwise authorised by Australia under a bilateral arrangement to operate scheduled international air services, or a carrier operating a non-scheduled international flight permitted under section 15D of the Air Navigation Act 1920 and who is an Australian person. Similar provisions that implement the Warsaw Convention also exist.

Ground handling agents and other service providers are not considered to be a ‘carrier’; however, if an action is brought by a passenger against a servant or agent of the carrier, the servant or agent is entitled to avail him or herself of the conditions and limits of liability that the carrier is entitled to invoke under the applicable liability regime.

Australian courts have dealt with the concept of carrier in terms of contracting carrier and actual carrier referred to in the Guadalajara Convention, which was consolidated in the Montreal Convention. Australian courts will look at the usual factors such as who operated the aircraft, who employed the flight crew, who held the relevant air operator’s certificate and airline licence under the applicable statutory regimes to determine the actual carrier. When identifying the contracting carrier, Australian courts will take an objective view of the actual contract made with the passenger and examine the factual matrix to determine with whom the parties intended to contract.

Carrier liability condition

How do the courts in your state interpret the conditions for air carrier liability - ‘accident’, ‘bodily injury’, ‘in the course of any of the operations of embarking or disembarking’ - for passenger injury or death in article 17(1) of the Montreal Convention and article 17 of the Warsaw Convention?

Australian courts have adopted and applied the test developed in Air France v Saks (1985) 470 US 392 (the Saks test) in determining whether an ‘accident’ has occurred - that is, liability will arise if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to a passenger.

Interpretation of what constitutes ‘bodily injury’ has recently been clarified in Australian courts to exclude pure mental injuries that do not derive from physical injuries (ie, restricting the liability of carriers to either physical injuries or mental injuries that flow from physical injuries).

Interpretation of ‘in the course of any of the operations of embarking or disembarking’ has also followed international courts, and Australian courts will consider location, activity and control when considering if an accident can be regarded as having occurred in the process of embarking or disembarking. For article 17 to apply, a passenger must not only do something at the particular time that constitutes a necessary step in the boarding process, but also must do it in a place not too remote from the location at which they are to enter the aircraft.

No negligence defence

How do the courts in your state interpret and apply the ‘no negligence’ defence in article 21 of the Montreal Convention, and the ‘all reasonable measures’ defence in article 20 and the ‘wilful misconduct’ standard of article 25 of the Warsaw Convention?

There is no authority in Australia on the ‘no negligence’ defence in article 21 of the Montreal Convention; however, Australia is a common law jurisdiction and would likely require the carrier to define the duty owed, and then determine if the carrier was in breach of its duty.

The ‘wilful misconduct’ standard of article 25 of the Warsaw Convention is treated as a subjective standard with consideration of actual knowledge; however, the leading Australian authority was decided in the context of carriage of goods.

There also is no authority in Australia on article 20 of the Warsaw Convention, although Australia would likely apply an objective standard.

Advance payment for injury or death

Does your state require that advance payment be made to injured passengers or the family members of deceased passengers following an aircraft accident?

Australia has not legislated a requirement for carriers to pay advance payments to injured passengers or the family members of deceased passengers following an aircraft accident. Instead, the Australian government has developed and advocates the Family Assistance Code, which is entirely voluntary. It sets out the minimum standards with regard to airlines operating to, from and within Australia in rendering assistance of victims and the families of victims of aircraft accidents. The Code notes the amount of the advance payment would depend on the circumstances, but encourages airlines to give sympathetic consideration to the needs of the families of victims and recommends approximately A$30,000.

Deciding jurisdiction

How do the courts of your state interpret each of the jurisdictions set forth in article 33 of the Montreal Convention and article 28 of the Warsaw Convention?

Australian courts recognise that the Conventions essentially specify four jurisdictions in which a claim may be brought: the state where the carrier is domiciled; the state where the carrier has its principal place of business; the state where the carrier has a place of business through which the contract of carriage was made; and the state which is the place of destination.

The first three jurisdictions referred to above are generally decided by factual enquiries made by the court. The place of destination has been decided by Australian courts, needing to determine the contractual intention between the parties, even where long periods may separate an outbound and return journey in the context of a ‘round trip’. Therefore, in the instance of a ‘round trip’, the place of origin is the same as the place of destination.

Australian courts also recognise the fifth jurisdiction created by the Montreal Convention, that is, the state where the passenger had his or her principal and permanent residence at the time of the accident, and refers specifically to the territorial characteristics of the passenger, and not the place of residence of their legal representation or personal representative in the case of a passenger death.

Australian courts recognise the doctrine of forum non conveniens in declining to exercise jurisdiction, and have adopted an approach whereby a defendant must satisfy the court that the forum is clearly inappropriate. Article 33(4) maintains questions of procedure shall be governed by the law of the court seised of the case, as such, the application of forum non conveniens by Australian courts means that the choice of jurisdiction remains within the court’s discretion.

Period of limitation

How do the courts of your state interpret and apply the two-year period of limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention?

The two-year limitations in article 35 of the Montreal Convention and article 29 of the Warsaw Convention are absolute, and a passenger’s right to bring an action pursuant to the Conventions is extinguished after two years.

Liability of carriage

How do the courts of your state address the liability of carriage performed by a person other than the contracting carrier under the Montreal and Warsaw Conventions?

There is no authority in Australia on point; however, the Australia courts will likely apply the provisions in the applicable liability regime with respect to the liability arising out of successive carriage, and the liability of the contracting and actual carriers.

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?

Liability of an air carrier for passenger injury or death during domestic carriage is governed by Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), which mirrors many of the features of the Warsaw and Montreal Conventions, including the requirement of ‘accident’ in respect of death or passenger injury and time limits.

The Commonwealth regime is supported by legislation at the individual state level, which applies Part IV to intra-state air carriage.

Nature of carrier liability

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

A domestic carriers’ liability for passenger injury or death as governed by the Civil Aviation (Carriers’ Liability) Act 1959 is strict. Similar to international air carriage, the carrier is liable for damages sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an ‘accident’.

Liability limits

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

Under Part IV of the Civil Aviation (Carriers’ Liability) Act 1959, there is an unbreakable limit of liability for domestic air carriage for claims for death or bodily injury of A$725,000 per passenger. Legal costs are in addition to this liability limit. The Australian government has recently issued a discussion paper to industry proposing an increase to the limit to A$925,000 for domestic carriage, or alternatively adopting the Montreal Convention 1999 regime. It is anticipated that the government will provide a review paper and amend any legislation by the end of 2019.

Main defences

What are the main defences available to the air carrier?

If it is established that the passenger’s death or bodily injury arose from an ‘accident’, the carrier has the defence of contributory negligence. If the carrier proves that the damage was caused or contributed to by the negligence of the passenger, then the amount of damages available to a passenger having regard to their share of the responsibility is reduced. Theoretically, the defence may have the effect of reducing the liability of the carrier to zero.

Damages

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

An air carrier’s liability for damages to the passenger is strict up to the limit of liability. However, a carrier may be able to obtain contribution for its liability to the passenger against another contributing party (such as a ground handler) if the terms of the agreement between the carrier and the other contributing party allow for such recovery.

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 39 of the Civil Aviation (Carriers’ Liability) Act 1959 provides that if the carrier proves that the damage was caused or contributed to by the negligence of the passenger, the damages shall be reduced to such extent as the court thinks just and equitable having regard to the share of the passenger in the responsibility for the damage. There is no rule to prevent a finding of contributory negligence against a minor or person with reduced mental capacity; however, a court would likely be reluctant in such circumstances to make any significant reduction for contributory negligence.

Statute of limitations

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

Section 34 of the Civil Aviation (Carriers’ Liability) Act 1959 provides the right of a person to damages is extinguished if an action is not brought within two years after the date of the arrival of the aircraft at the destination, or where the aircraft did not arrive at the destination, the date on which it ought to have arrived or the date on which the carriage stopped (whichever is later). This is applied strictly in Australian and there is no right to extend the two-year time limit.

Third-party actions

Seeking recovery

What are the applicable procedures to seek recovery from another party for contribution or indemnity?

A carrier may be able to obtain contribution for its liability to the passenger against another contributing party (such as a ground handler, caterer, other passenger, etc) under various contribution statues or any relevant contract terms between the carrier and the other contributing party.

The applicable procedure where court proceedings are on foot, is to file a cross-claim or a third-party notice against the relevant party seeking a contractual contribution or indemnity. Alternatively, a separate action may be commenced.

Time limits

What time limits apply?

The applicable time limit will depend on the cause of action pleaded in the cross-claim or third-party notice through which a claim for contribution or indemnity is made. For example, in NSW, the Limitation Act 1969 provides that for a cause of action founded on contract the limitation period is six years.

Liability for ground damage

Applicable laws

What laws apply to the liability of the air carrier for injury or damage caused to persons on the ground by an aircraft accident?

Australia has denounced the Rome Convention 1952 as applied by the Civil Aviation (Damage by Aircraft) Act 1958 because the caps on liability were not consistent with community expectations. In its place, the Damage by Aircraft Act 1999 was enacted. Each state within Australia has enacted similar legislation, although some inconsistencies remain between them.

Nature and conditions of liability

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

The Damage by Aircraft Act 1999 imposes strict liability on a carrier for ground damage (ie, without proof of negligence). Both the aircraft operator and owner are jointly and severally liable for ground damage.

Liability limits

Is there any limit of carriers’ liability for ground damage?

Liability is unlimited, meaning there is no theoretical cap on the amount of damages for which carriers are potentially liable.

However, amendments to the Damage by Aircraft Act 1999, which came into force in 2013, have introduced some limitations on liability. Firstly claims for purely mental injury without other personal injury or property damage are excluded, secondly liability can be reduced in the event that the injured person contributed to their loss or damage, and lastly carriers are able to seek contribution from other parties who may have contributed to the loss or damage suffered by the injured person.

Main defences

What are the main defences available to the air carrier in a claim for damage caused on the ground?

While the liability regime does not provide any complete defences to air carriers for claims, an air carrier can seek to proportionately reduce its liability by way of contributory negligence or seek contribution from other parties who may have contributed to the loss or damage suffered by the injured person.

Liability for unruly passengers and terrorist events

Applicable laws

What laws apply to the liability of the air carrier for injury or death caused by an unruly passenger or a terrorist event?

The liability of an air carrier for damage or loss caused by an unruly passenger or terrorist event is governed by the Civil Aviation (Carriers Liability) Act 1959 and the applicable Convention. The court is required to consider whether or not the event involving the unruly passenger or the terrorist event would constitute an ‘accident’ within the meaning of the legislation.

Nature and conditions of liability

What is the nature of, and conditions, for an air carrier’s liability for injury or death caused by an unruly passenger or a terrorist event?

See question 12 for domestic carriage, and question 5 for international carriage.

Liability limits

Is there any limit of liability for injury or death caused by an unruly passenger or a terrorist event?

See question 13 for domestic carriage and, for international carriage, the damages are limited to the limitation, if any, provided under the applicable Convention.

Main defences

What are the main defences available to the air carrier in a claim for injury or death caused by an unruly passenger or a terrorist event?

See question 14 for domestic carriage and, for international carriage, as prescribed by the applicable Convention.

Consumer protection and passenger rights

Applicable legislation

Summarise aviation-related consumer-protection laws or regulations related to passengers with reduced mobility, flight delays and overbooking, tarmac delay and other relevant areas.

There are no sector-specific consumer protection laws or regulations. Instead this is governed generally by the Australian Consumer Law, which contains automatic guarantees with respect to goods and services purchased by consumers. These guarantees cannot be excluded through the carriers’ terms and conditions of carriage.

In Australia, carriers do not guarantee their timetables since the contract between a carrier and passenger is only to get the passenger to their destination. For domestic carriage there is no clear compensation regime for loss or damage as a result of flight delays, cancellations, overbooking or another similar event. It is entirely at the discretion of the carrier and generally a carrier will only offer compensation where the cause of the delay or cancellation was within the airlines control such as mechanical or crewing issues. However, international carriage will be governed by article 19 of the Montreal Convention for any loss or damage due to delay.

The Australian Competition and Consumer Commission (ACCC) oversees compliance with the relevant competition legislation and has an indirect role in regulating pricing at Australian airports. The ACCC is responsible for monitoring prices, costs, profits and service quality of aeronautical services and facilities and car parking at Australia’s four largest airports.

Additionally Australia’s component pricing laws requires advertised prices to be clear, accurate and not misleading to consumers. Where carriers choose to present prices to consumers that are only part of the total price, the carrier must also include the total price as a single figure at least as prominently as the part price. The single price must also include any tax, duty, fee, levy or other additional charges such as goods and services tax or airport tax.

In terms of disability discrimination, the aviation industry is affected by the Disability Discrimination Act 1992 and the Disability Standards Accessible Public Transport Act 2002. The Disability Discrimination Act prohibits both direct and indirect discrimination on the grounds of disability and also empowers the minister to formulate ‘disability standards’ for the provision of public transportation services, which are applicable to aircraft, airports and airport terminals. It is arguable that disability discrimination legislation does not apply during air carriage (ie, from embarkation to disembarkation) due to exclusive right to claim damages under the Montreal Convention. However, this position is yet to be tested in the Australian courts.

Liability of government entities providing services to carriers

Relevant laws

What laws apply to the liability of the government entities that provide services to the air carrier?

In Australia, the major airports are all privately owned. Apart from the civil aviation regulator, CASA, the only other significant government entity that provides services to the air carrier is Airservices Australia, which provides air navigation and aviation rescue fire fighting services. Airservices Australia is governed by the Air Services Act 1995, as well as the associated Air Services Regulations 1995. The liability of Airservices Australia is governed by the common law of negligence.

Nature and conditions of liability

What is the nature of, and conditions for, the government’s liability?

Under the applicable laws, the liability of Airservices Australia to an air carrier would be fault based.

Liability limits

Are there any limitations to seeking recovery from the government entity?

With respect to rescue and fire fighting services carried out by Airservices Australia, Regulation 4.06 of the Air Services Regulations 1995 provides Airservices Australia with a statutory immunity against any injury, loss or damage caused directly or indirectly to a person or the property of a person, such as an air carrier. Otherwise, there is no immunity.

Criminal proceedings

Responsibility for accidents

Can an air carrier be criminally responsible for an aviation accident?

In Australia, motor vehicle drivers are frequently prosecuted for accidents, especially if someone is killed. However, the prosecution of those involved in aviation accidents is less common, although still possible. Prosecution is more likely to occur in cases of deliberate breach or recklessness.

CASA is responsible for enforcing civil aviation laws and ensuring compliance with the relevant safety standards. If CASA finds evidence of a serious offence it must consult the Commonwealth Director of Public Prosecutions who holds the final decision on whether to prosecute.

Effect of proceedings

What is the effect of criminal proceedings against the air carrier on a civil action by the passenger or their representatives?

Criminal proceedings against the air carrier will have no effect on a civil action by the passenger.

Compensation

Can claims for compensation by passengers or their representatives be made against the air carrier through the criminal proceedings?

The Montreal Convention and the Civil Aviation (Carriers’ Liability) Act 1959 provides the exclusive cause of action for passenger death or injury against air carriers, and no claims for compensation can be made through criminal proceedings against a carrier.

Effect of carrier's conditions of carriage and tariffs

Liability

What is the legal effect of a carrier’s conditions of carriage or tariffs on the carrier’s liability?

A carrier’s conditions of carriage are binding on a passenger pursuant to the usual rules of contract. The only limitations on the applicability of a carrier’s conditions of carriage are where it contravenes the aviation liability legislation, the consumer protection provisions of the Australian Consumer Law or where the provisions offend any Australian anti-discrimination laws.

Damages

Damage recovery

What damages are recoverable for the personal injury of a passenger?

For both domestic and international carriage, an injured passenger can only recover damages for ‘bodily injury’. The injured passenger can claim damages for:

  • non-economic loss (general damages) for the injury, disability, pain and suffering;
  • economic loss for loss of past and future wages including loss of superannuation;
  • past and future medical treatment expenses and out-of-pocket expenses;
  • past and future domestic assistance (either gratuitous or commercial); and
  • interest on past damages.

There is no right in Australia to claim exemplary or punitive damages against a carrier under Civil Aviation (Carriers’ Liability) Act.

For domestic carriage to which Part IV of the Civil Aviation (Carriers’ Liability) Act applies, damages are limited to A$725,000 plus costs. For international carriage, the damages are limited to the limitation, if any, provided under the applicable Convention.

Damages for pure mental injure are not compensable in Australia as only ‘bodily injury’ is compensable.

An unsuccessful party will also be liable for its opponent’s legal costs in addition to any damages awarded against them.

What damages are recoverable for the death of a passenger?

An action on behalf of the deceased passenger may be brought by a personal representative of the deceased or by a person for whose benefit the liability is enforceable (usually an immediate family member), and only one action may be brought in respect of the death of any one passenger for the benefit of all entitled persons.

The recoverable damages prescribed by the Civil Aviation (Carriers’ Liability) Act for both international and domestic carriage include:

  • loss of earnings or profits up to the date of the death of the passenger;
  • the reasonable expenses of funeral and repatriation of the passenger;
  • medical and hospital expenses incurred in relation to the injury that resulted in the death of the passenger; and
  • financial loss resulting from the death of a passenger which includes damages to dependants for financial support and damages for loss of services which would have been provided by the deceased passenger.

There is no right in Australia to claim exemplary or punitive damages against a carrier under the Civil Aviation (Carriers’ Liability) Act.

For domestic carriage to which Part IV of the Civil Aviation (Carriers’ Liability) Act applies, damages are limited to A$725,000 plus costs. For international carriage, the damages are limited to the limitation, if any, provided under the applicable Convention.

An unsuccessful party will also be liable for its opponent’s costs in addition to any damages awarded against them.

Accident investigation and family assistance

Investigatory authority

Who is responsible in your state for investigating aviation accidents?

The responsible body for investigating aviation accidents is determined by the nature of the accident.

Generally, the Australian Transport Safety Bureau (ATSB) is invested with the power to investigate civil aviation accidents, incidents and safety deficiencies. The ATSB undertakes independent ‘not-for-blame’ investigations to improve safety and public confidence through its safety data research and analysis functions. The ATSB has no prosecutorial function and has no power to enforce its recommendations.

Where an aviation accident involves terrorism or other unlawful interference, the Australian Federal Police will be the primary authority for investigating the accident. The Australian Federal Police have wide-ranging investigation powers including search and seizure powers.

Where an aviation accident involves death, the Coroner (usually via the police) is also able to investigate the circumstances surrounding the accident in order to determine the fact, date, place, manner and cause of death. The Coroner is not bound by rules of evidence and the procedure is informal. If the Coroner finds that a crime has been committed, the Coroner must refer the matter to the Director of Public Prosecutions (DPP).

The Civil Aviation Safety Authority (CASA) also holds investigatory powers to examine the circumstances surrounding an accident to identify issues relating to safety regulation. Where it is determined that organisations or people have operated unsafely, CASA may step in and take enforcement actions ranging from infringement notices to prosecution in the courts. CASA may also refer information for serious breaches of safety legislation to the Commonwealth DPP for prosecution.

Disclosure restrictions

Set forth any restrictions on the disclosure and use of accident reports, flight data recorder information of cockpit voice recordings in litigation.

Investigation reports published by the ATSB, as well as most evidence collected during an investigation, cannot be used in civil or criminal proceedings. However, the final report published by the ATSB is admissible in evidence in a Coronial Inquest.

Restrictions regarding flight data recorder information and on-board recordings are prescribed by the Transport Safety Investigation Act 2003 and also Civil Aviation Act 1988. Generally, on-board recordings are not admissible in criminal or civil proceedings unless a certificate is issued that disclosure is not likely to interfere with investigation and the court makes a public interest order.

Relevant post-accident assistance laws

Does your state have any laws or regulations addressing the provision of assistance to passengers and their family after an aviation accident?

Australia has not legislated a requirement for carriers to provide assistance to passengers and their family after an aviation accident. Instead, the Australian government has developed and advocates the Family Assistance Code, which is entirely voluntary, but generally adopted by the Australian mainline carriers.

The Family Assistance Code sets out the minimum standards with regards to airlines operating to, from and within Australia in rendering assistance of victims and the families of victims of aircraft accidents. The Code states that airlines should offer advance payment to the family as soon as practicable after the event and notes the amount of the advance payment would depend on the circumstances, but encourages airlines to give sympathetic consideration to the needs of the families of victims and recommends approximately A$30,000.

In addition to advance payment, the Code also recommends that a Family Support Coordinator be appointed as soon as practicable in order to facilitate communication between the airline, emergency and welfare services and the victims and their families. The ATSB may also appoint an appropriate person directly with the airline in order to attempt to facilitate a site visit, should any family members wish to visit the accident site.

Insurance requirements

Mandatory requirements

Are there mandatory insurance requirements for air carriers?

Any carrier that carries passengers for hire or reward to or from Australia or within Australia is required to have in place passenger liability insurance that ensures that compensation will be paid in respect of death or bodily injury suffered by passengers on the carrier’s aircraft. A statutory insurance scheme is administered by CASA pursuant to the powers given to it under the Civil Aviation Act 1988, Part IVA of the Civil Aviation (Carriers’ Liability) Act 1959 and the Civil Aviation (Carriers’ Liability) Regulations 1991.

Each of the states of the Commonwealth has mirrored the Commonwealth legislation in its own legislation. The Commonwealth laws extend to transport of passengers by an air carrier to, from or within Australia. In the case of domestic carriage, the minimum insurance level is A$725,000 per passenger. International carriers, including foreign carriers serving Australia, are required to provide evidence that they are insured to a level of 260,000 special drawing rights per passenger. Carriers are obliged to provide CASA with a declaration indicating that they have obtained insurance.

Where an international carrier proposes to confine its operations to flights to and from Australia, the carrier’s insurance contract is not required to extend cover under state laws. State legislation applies only to carriers operating intra-state passenger charter or regular public transport flights and their insurance coverage must extend cover under Commonwealth legislation as well as the laws of all the states.

Insurers must meet certain qualifications as stipulated in the Civil Aviation (Carriers’ Liability) Act 1959 and an insurer cannot limit or escape liability to indemnify a passenger against injury by means of a warranty or exclusion in a contract. Certain acceptable ‘standard’ exclusions are specified in the regulations, which also contain rules relating to the cancellation of policies. Failure to have the required insurance in place is a criminal offence and may lead to the suspension of operations.

Litigation procedure

Court structure

Provide a brief overview of the court structure as it relates to civil aviation liability claims and appeals.

Claims made under the Civil Aviation (Carriers’ Liability) Act 1959 will vary depending in which state the claim is brought.

The decision of which court to bring a civil aviation liability claim is dependant on the relief sought by the plaintiff and the quantum of the damages claimed. Proceedings are generally brought in the District Court or Supreme Court of the relevant state. In some instances, where a plaintiff makes a small claim (ie, where relief sought is less than A$100,000), a claim may be brought in the local court of each state. The plaintiff can also bring a civil aviation liability claim in the Federal Court of Australia.

An unsuccessful party has the right to appeal an unfavourable decision of the court should they wish. An appeal can be brought in a court that holds a higher or appellate jurisdiction (for example, the Supreme, Federal or High Courts). However, in some circumstances, leave is required to appeal, which is generally only allowed for an error of law.

Allowable discovery

What is the nature and extent of allowable discovery/disclosure?

Depending on which court the proceeding is filed, generally there is a right for a party to seek an order for discovery of documents. Usually the court will limit discovery to the issues in dispute between the parties and will not provide an order for general discovery. A party can object to providing discovery if the categories of documents requested amount to a fishing expedition, too wide, or oppressive for the party to comply. A party can also claim privilege over documents if the communication was prepared for the dominant purpose of the lawyer providing legal advice.

Evidence

Does the law of your state provide for any rules regarding preservation and spoliation of evidence?

Section 39 of the Crimes Act 1914 provides that a person is liable for up to five years’ imprisonment if a person knows that a document or thing of any kind is required in evidence in a judicial proceeding and destroys or renders the thing illegible or undecipherable or incapable of identification with the intention of preventing that thing for being used in evidence.

Recoverability of fees and costs

Are attorneys’ fees and litigation costs recoverable?

Professional legal costs and disbursements are recoverable by a successful party in the litigation. Usually a court will make an order for costs in favour of the successful party or otherwise costs can be agreed between the parties in the event the claim resolves prior to a judgment of the court.

Judgments and settlement

Pre and post-judgment Interest

Does your state impose pre-judgment or post-judgment interest? What is the rate and how is it calculated?

Both pre-judgment and post-judgment interest is allowed and varies between each state within Australia. Pre-judgment interest is generally calculated from the date the cause of action arose until the date on which judgment is delivered. The applicable rate of pre-judgment interest is usually published by the relevant court and is generally 4 per cent above the cash rate last published by the Reserve Bank of Australia. It is recalculated biannually.

Post-judgment interest carries from the date on which judgment is entered. The applicable rate of post-judgment interest is usually published by the relevant court and is generally 6 per cent above the cash rate last published by the Reserve Bank of Australia. It is also recalculated biannually.

Settlements

Is court approval required for settlements?

Generally court approval is not required for settlements unless the plaintiff is a minor (under 18 years of age) or the plaintiff is disabled.

What is the effect of a settlement on the right to seek contribution or indemnity from another person or entity? Can it still be pursued?

Following a settlement with a passenger, a carrier may be able to obtain contribution for its liability to the passenger against another contributing party (such as a ground handler, caterer, other passenger, etc) under various contribution statues or any relevant contract terms between the carrier and the other contributing party. Such a claim can be pursued following a settlement with the passenger; however, various time limits apply.

Are there any financial sanctions, laws or regulations in your state that must be considered before an air carrier or its insurer may pay a judgment or settlement?

Yes, an air carrier must consider the statutory requirements under the Health and Other Services (Compensation) Act 1995 (Cth), as well as the Social Security Act 1991 (Cth). Pursuant to these laws, an air carrier must notify Medicare Australia and Centrelink of the settlement or judgment, following which a notice of charge will be issued to the carrier to repay Medicare Australia for any medical benefits paid by the government, and to repay Centrelink for any social security payments paid by the government.

Updates and Trends

Updates & Trends

Updates and trends

In the December 2017 decision of the New South Wales Court of Appeal in South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312, the Court of Appeal made two significant findings. First, that the meaning of ‘passenger’ in the Civil Aviation (Carrier’s Liability) Act 1959 means persons on board an aircraft other that those involved in the operation of the flight. This has provided further clarity on which persons fall under the A$725,000 passenger limit for Australian domestic carriage. Second, the Court of Appeal held that claims for nervous shock brought by non-passengers against air carriers arising from the death of a passenger fall within the provision of the Civil Aviation (Carrier’s Liability) Act, which provides that claims ‘in respect of the death of a passenger’ can only be brought under that Act. This significantly limits the damages that non-passengers can receive for nervous shock claims against air carriers. However this case is now before the High Court of Australia for reconsideration, which will settle this contentious area of law in late 2018 or early 2019.

The Australian government is now conducting a review of Australia’s aviation insurance and liability framework for domestic carriage within Australia, and produced a discussion paper that called for submissions on how reforms should occur in aviation insurance and liability. Submissions closed on 31 August 2018. It is expected that the review will increase the passenger liability cap for domestic carriage to keep in line with inflation to A$925,000 or move domestic carriage to the Montreal Convention 1999 regime. The review has also asked the aviation industry to indicate its preferred liability regime for carriage of cargo within Australia, which is not currently subject to any regulation and the parties are free to contract on any basis and set any limits. It is anticipated that the government will provide a review paper and amend any legislation by the end of 2019.