Family members have a right to sue an air carrier for nervous shock

Cousins v Nimvale Pty Ltd [2013] WADC 175

The Perth District Court held that the parents of two young women killed in a helicopter accident had the right to sue the carrier in separate common law claims for nervous shock, in addition to their statutory right to recover loss of dependency under the Civil Aviation (Carriers Liability) Act 1961 (WA), which incorporated Part IV of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (CACL Act).

The CACL Act gives the force of law to various international conventions by providing a strict liability scheme of compensation for death or injury suffered by a passenger as a result of an accident. A claim in Australia is therefore brought under the CACL Act rather than under the relevant convention.¹

Although Part IV of the CACL Act applies to domestic air carriage, to which the conventions do not apply, it contains provisions modelled on the conventions that prescribe the remedies available against a carrier and the limits of liability. In particular, section 35(2) of the CACL Act provides:

Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of a passenger.

Can a carrier be sued in respect of the passenger’s death other than under the CACL Act? The weight of jurisprudence from around the world indicates that where a convention applies to a claim, the convention provides the exclusive remedy against a carrier. Even if a separate cause of action against the carrier is possible, the remedies in that action will be subject to the provisions of the convention. The issue of exclusivity is not without controversy and there are decisions which preclude a separate cause of action, meaning that the convention is exclusive both as to cause of action and remedy.

Australian courts are able to have regard to these international decisions to assist their interpretation of the CACL Act but care must be taken, as the language of the CACL Act is, in certain respects, different to the conventions.

In Cousins, the claim for dependency loss was founded in section 35(3) of CACL Act, which provides that in relation to the carrier’s liability in respect of the death of a passenger:

The liability is enforceable for the benefit of such of the passenger’s family members as sustained damage by reason of his or her death.

Are the parents’ claims for nervous shock amenable to this provision? The international decisions demonstrate that psychiatric injury to a passenger, absent physical injury, is not compensable under the conventions. More importantly, the District Court referred to the decision of the Full Court of the Federal Court in South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107, which held that the CACL Act did not apply to claims by non-passengers for nervous shock occasioned by the death of a passenger.

The District Court properly concluded that Part IV applied only to damages in respect of the death of a passenger, which covered dependency loss but not nervous shock injuries to family members. The exclusivity issue therefore did not prevent the family members from bringing separate common law claims against the carrier in respect of damages that did not fall within the scope of the legislation.