Aviation Law

Will a statutory increase in damages soothe your flying nerves?

By LHD Lawyers

Are you the ultimate “nervous Nellie” on flights? If so, like I, you probably torture yourself with questions like; does this turbulence mean the plane is about to fall out of the sky?

Why not fly above the clouds? Doesn’t the Captain realise that a mountain could be hidden in there? The plane does not seem to be slowing down, is the runway going to be long enough? Even more paranoid if you live under a flight path is the vision of a landing ending with a set of very large Dunlop tyres removing the roof of your house.

Thankfully, Australia has an enviable commercial aviation safety record for both domestic and international flights. However, in recent years there has been significant media exposure devoted to a number of in-flight incidents occurring within Australian airspace or on Australian carriers operating overseas. A number of these incidents have resulted in injury to passengers.

Within the last five years, highly publicised incidents have included but are not limited to:

QF72, a Qantas A330 Airbus flying from Singapore to Perth on 7 October 2008. The aircraft suffered two uncommanded “pitch downs” over the Indian Ocean which compelled an emergency landing. Over 100 passengers and crew suffered injury.

QF32, a Qantas A380 Airbus which during the course of a flight from London to Singapore on 8 January 2012 struck severe clear air turbulence. Seven passengers were injured.

On 22 August 2012, the Federal Transport Minister, Anthony Albanese introduced the Aviation Legislation Amendment (Liability and Insurance) Bill 2012 in the House of Representatives. The Bill will increase the maximum amount of damages for a successful personal injury claim from $500,000.00 to $725,000.00 under both the Civil Aviation (Carriers Liability) Act 1959 and the Damage by Aircraft Act 1999.

Both Acts compel carriers to take our insurance policies. Under the 1959 Act insurance cover extends to passenger injury or death. The 1999 Act insurance cover extends to surface damage caused by an aviation incident including injury and death.

As in flight incident injuries are far more common that surface damage injury, the 1959 Act features consistently in recent case law. Under the Act, if an injury causing damage is suffered on board an aircraft or in the course of embarking into or disembarking from an aircraft, then the injured person is entitled to pursue a damages claim against the carrier. In the event of death, the deceased’s passenger’s family is entitled to claim damages.

A strict liability regime applies. As such, the injured passenger or family of a deceased passenger does not have to establish negligence against the Carrier. A two year limitation period applies to a claim.

Historically, there has been inconsistency with how courts deal with domestic and international carrier’s liability in respect to “mental injuries” suffered by passengers in the absence of physical injury. Internationally, Courts have interpreted “bodily injury” as being limited to physical injury. However, domestically where damages are awarded for “personal injury”. Courts have applied an expansive interpretation to include “mental injury” in circumstances where no physical injury has been suffered.

The 2012 Bill excludes entitlement for damages resulting from solely “mental injuries” on domestic flights resulting in uniformity in domestic and international carrier liability.

In summary, the Bill provides a “give and take” scenario. Although the maximum damages claimable are significantly increased, the ambit of compensable injury has been reduced.

Michael Hyland at LHD Lawyers has had the benefit of representing flight attendants in respect to injury claims for over a decade. In more recent years, Michael has also represented a number of passengers whom suffered injury in the QF72 incident. Should you or family members require representation in respect to an aviation incident, please contact LHD Lawyers.

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