DECEMBER 2008:

  • Passenger Claim Fails “Accident” Test
  • 1999 Montreal Convention - Commencement Looms
  • HWL Ebsworth appoints aviation competition law expert
  • Flying in Australia still very safe - ATSB Review 2008
  • Case Note: Court of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act
  • Varying disclosure requirements in Queensland personal injury matters

 

Passenger Claim Fails “Accident” Test

An Australian Court has once again been asked to consider whether a passenger injury during domestic carriage was caused by an “accident”, as required by Part IV of the Civil Aviation (Carrier’s Liability) Act 1959.

In this case the passenger alleged that she had suffered pain, injury and damages as a result of tripping on board the aircraft sustaining a serious injury.  The passenger claimed to have been asked to move seats soon after boarding, and in doing so, her foot became caught on the metal “rod” that anchors the bottom of the seat to the floor of the aircraft, causing the passenger fall and suffer a broken ankle.

The plaintiff argued that the rod connecting the seat to the floor was a tripping hazard, and that her injury was caused by an “accident” within the meaning of the Act.

A Notice of Motion was filed on behalf of the Airline seeking to strike out the claim on the basis that, on the allegations as pleaded, the plaintiff’s injury was not caused by an “accident” within the meaning of Section 28 of the Act, and her claim was therefore bound to fail.

It was successfully argued on behalf of the Airline that the circumstances of this injury were not unusual or unexpected, nor external to the passenger, in particular, as the metal “rod” (which was actually a seat bracket) was a normal part of the aircraft cabin.

While the plaintiff’s claim was brought under Australian legislation governing domestic carriage by air, the trigger for liability on the part of the carrier in Section 28 of the Act is almost identical to the requirements of Article 17 of the Warsaw Convention.  The Court therefore based its decision upon cases dealing with both Section 28 of the Act and the Warsaw Convention.

The Court applied the test in the well known decision of Air France v Saks (US Supreme Court), that in order to fall within the definition of “accident”, the injury must be caused by an event that was “unusual or unexpected”  and “external” to the passenger.  The Court said encountering a chair mounting or some other “passive condition”, free of any other defect, is not unusual or unexpected.  It was held to be the passenger’s own reaction to this passive condition that caused her injury, and it therefore did not fall within the definition of “accident”.  Accordingly, the Court ordered the plaintiff’s claim to be struck out and for the plaintiff to pay the airlines costs.

It remains to be seen whether the decision will be appealed.

 

Amber Pittlik
Simon Liddy

 

 

1999 Montreal Convention - Commencement Looms

Australia’s implementation of the 1999 Montreal Convention creates a new (and long overdue) regime for air carriers’ liability for cargo, passengers and their baggage. We are pleased to report that the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 has been passed by both Houses of Parliament and received the Royal Assent on 12 July 2008. The substantive provisions of the Act, including the Convention schedule, are to commence on a date to be fixed by government Proclamation, or, in default of Proclamation, six months following the date on which the Convention enters into force.

According to the Department of Infrastructure, Transport, Regional Development and Local Government, it is the Government’s intention that Proclamation is to occur on the same day the Convention enters into force. According to the Convention’s own terms, the Convention enters into force sixty days after a signatory State deposits an instrument of accession with the Convention’s administering body, the International Civil Aviation Organisation (ICAO).

The Department of Infrastructure, Transport, Regional Development and Local Government is presently preparing to lodge the instrument of accession with ICAO, and the Government expects to make an announcement in relation to the date of Proclamation soon.

 

Author: Matt Brooks

 

 

HWL Ebsworth appoints aviation competition law expert

HWL Ebsworth is pleased to announce that Richard Westmoreland has joined the firm as Partner to head up a dedicated Trade Practices Group within the firm.

Richard has a wealth of experience as a specialist competition lawyer advising some of Australia’s largest companies.  Richard also has particular expertise in the aviation industry and the transport sector generally, including as General Manager Legal at Qantas, where he was responsible for trade practices issues within the airline.

Richard’s work at Qantas included obtaining ACCC authorisation for Qantas’ Joint Services Agreement with British Airways, reviewing and approving all of Qantas’ oneworld alliance activities, and designing and delivering customised trade practices training for senior management. Other recent experience includes obtaining authorisation in New Guinea for Qantas’ code share and other arrangements with Air Niugini, establishing compliance programs and delivering compliance training for companies such as Qantas, LG, Goodyear and Goodman Fielder, and acting for clients, including airlines, in numerous ACCC statutory investigations.

The addition of Richard to the HWL Ebsworth team builds on the extensive trade practices experience already in the firm, and provides our aviation clients with a full suite of aviation law expertise unbeaten by any other firm. 

 

More information about Richard and his practice can be found here

 

 

Flying in Australia still very safe - ATSB Review 2008

The Australian Transport Safety Bureau (ATSB) released its Annual Review 2008 on 31 October 2008, reporting on the 2007-08 financial year of all its operations including Aviation.

The ATSB’s Aviation Investigation Branch investigates accidents and other occurrences involving civil aircraft in Australia in accordance with Annex 13 to the Convention on International Aviation (Chicago Convention 1944) which has legal force in Australia by operation of the Transport Safety Investigation Act 2003 (Cth).

The purpose of ATSB aviation investigations is to enhance aviation safety by determining the factors and associated safety issues which contribute to accidents and incidents in order to assist in preventing similar occurrences in the future. The ATSB works with the Civil Aviation Safety Authority (CASA), Airservices Australia, aircraft manufactures and operators, who are best placed to effect changes to improve safety.

The statistics reported show that in 2007-08:

  1. The ATSB initiated 77 new aviation investigations from approximately 15,218 notifications received (8,299 were recorded as aviation occurrences);
  2. The ATSB completed 73 aviation investigations down from 80 in 2006-07;
  3. The median time for investigations was 443 days, an increase from 379 days last year and well above the target of 365 days;
  4. There were 131 separately identified safety actions taken by aviation safety stakeholders in response to 43 different aviation investigations;
  5. The completed investigation reports included a total of 23 safety recommendations and two safety advisory notices to aviation stakeholders;
  6. At 30 June 2008, the ATSB was continuing with 91 aviation investigations up from 87 in 2006-07.

 

The ATSB reported that the key aviation investigations completed in 2007-08 included;

  1. Boeing 737-476 in-flight engine malfunction 6 km SSE Sydney, NSW, 25 August 2005. The investigation  revealed that a single dowel pin had come loose from its installed position within stage three of the high pressure compressor (HPC) and was ingested by the downstream rotating hardware, resulting in damage to the HPC rotor and stator components. As a result, the engine manufacturer initiated a number of safety actions that included a redesign of the HPC anti-rotation pin and release of a Service Bulletin to all operators that recommended the introduction of the new pin design.
  2. VH-SEF Fairchild Metro III fuel exhaustion 18 km SW Bundaberg, QLD, 23 September 2005.  The investigation determined that problems with the aircraft’s fuel quantity-indicating system and limitations in the company’s flight crew practices relating to fuel quantity resulted in the aircraft departing Brisbane with only 65% of the amount of fuel the crew believed was on board. The investigation found a number of safety factors that contributed to the fuel quantity system over-reading and leading to the usable fuel in the left tank being exhausted. Following the occurrence, the operator developed new procedures for fuel quantity management and CASA made rule changes regarding fuel quantity measurement and verification for transport category aircraft.
  3. VH-UTB Cessna U206 collision with terrain near Willowbank, QLD, 2 January 2006. Shortly after take off, the engine lost power and the aircraft crashed into a tree, coming to rest in a dam with 5 of the 7 passengers killed. Technical examination and testing of the aircraft’s engine and its associated components did not reveal any anomalies with the potential to have individually contributed to the partial engine power loss. As a result of the investigation, the Australian Parachute Federation addressed a number of safety concerns, CASA initiated safety action including a review of the various training syllabi affecting the management of engine and partial engine power loss after take off. The ATSB issued 7 safety recommendations related to airworthiness bulletins, regulations, parachutists’ safety and survivability, aircraft maintenance documentation and pilot training in emergency procedures.
  4. VH-AKY BAC Strikemaster in-flight breakup 20 km NE Bathurst, NSW, 5 October 2006. The aircraft impacted with the ground and the pilot and passenger were killed. At the time of impact the engine was producing significant power and the wing flaps and landing gear were retracted. The right wing and tail had separated from the aircraft. ATSB’s analysis revealed that the separation of the right ring was precipitated by pre-existing fatigue cracking in the right wing upper main spar attachment lug. Examination of the recovered items of the tail section and assessment of the distribution of the items indicated that the rudder mass balance was torn off over the top of the rudder at an early stage of the breakup sequence. The majority of the available evidence was consistent with a breakup initiated by separation of the tail surfaces leading to the separation of the weakened right wing. The ATSB briefed CASA and the UK Civil Aviation Authority (CAA) on the findings, CASA released a number of Airworthiness Bulletins, and the CAA issued a Mandatory Permit Directive.

 

The ATSB also attended the following Coronial Inquests in 2007-08 requiring considerable resources of its investigators for both the preparation and attendance:

  1. Lockhart River coronial inquest - May 2005;
  2. VH-ZIP Cessna 188B fatal accident - March 2006;
  3. Lancair fatal accident at Bankstown - April 2006; and
  4. Cessna U206, VH-UYB fatal accident - January 2006.

The Report provides Transport Safety Performance Statistics of the major transport modes from 1998 to 2007. Between 2003 to 2007, road accidents accounted for 94% of the total fatalities, with Rail, Marine, and Aviation accounting for approximately 2% each. The overall death rate across all modes of transport decreased from 10.14 deaths per 100,000 population in 1998 to 7.89 in 2007.

For aviation reported incidents, the statistics show that high-capacity aircraft (regular public transport aircraft greater than 38 seats or maximum payload exceeding of 4,200 kg) operations continue to be the safest in the country, with extremely low accident numbers. To date, Australia has recorded no hull losses or fatal accidents involving high-capacity aircraft. Low-capacity aircraft (regular public transport aircraft with 38 seats or less or a maximum payload of 4,200 kg) continue to very safe in terms of the number of accidents with two fatal accidents (Whyalla accident in 2000 with 8 fatalities and Lockhart River in 2005 with 15 fatalities).

Of the general aviation categories, private operations continue to dominate the statistics with 555 non fatal accidents and 89 fatal between 1998 and 2007, followed by aerial work 332 non fatal and 31 fatal, flying training 209 non fatal and 13 fatal, and business 25 non fatal and 7 fatal. However, there has been an overall decrease in annual accident numbers since 1998. With respect to recreational aviation which includes ballooning, gliding, and sports aviation, there were 3 fatal accidents and 7 non fatal in 2007 and over a ten year period from 1998 to 2007, 28 fatal accidents are recorded and 71 non fatal accidents.

The statistics when measured against the amount of flying each category of operation has undertaken shows a decline in accidents in the period 1997 to 2006 and variations in fatalities arising from fatal accidents which remain extremely low for high and low capacity operations. For general aviation operations there is also an overall decrease in accident rates in the period 1997 to 2006 compared to a small overall increase in the fatal accident and fatality rate.

International aviation comparison shows that Australia had the lowest accident rate for high capacity aircraft in the world for the period 2003 to 2007. Australia recorded 0.0 accidents per million departures (based on hull losses) against a world average of 0.5 accidents per million departures, with Africa recording the highest at 4.5 accidents per million departures.

The ATSB report is encouraging in that it indicates Australia’s high and low capacity aviation operators are very safe and have very low accident rates compared to the rest of the world. This suggests that all those involved in aviation through to the regulator are continuing to be effective in ensuring the safety of aviation operations. In addition there is a clear decrease in the number of accidents reported in both air transport and general aviation with a consistent low fatal accident rate.

The next ATSB report for 2008-09 will be an interesting comparison with two recent high capacity aircraft non fatal incidents and a number of general aviation fatal accidents having already occurred this year. Looking ahead in the 2008-09 year, the ATSB plans to commence and conduct up to 80 aviation investigations, and complete about 10 aviation research and analysis reports focussing on safety priorities, occurrence trends and human factors issues. The ATSB also participated in a review of the provisions of Annex 13 to the Convention on International Civil Aviation at the ICAO Accident Investigation and Prevention Divisional Meeting in October 2008. The ATSB will also contribute input to the Government’s announced Green and White paper process on aviation which will also pick up some of the suggestions made by the 2007 Miller Review, which examined the relationship between the ATSB and CASA.

While the indications are that flying remains a very safe pastime in Australia, whether of the joy flight or regular public transport category, accidents still occur and there is no room for complacency.

 

Author: Matthew Brooks

 

 

Case Note: Court of Appeal reversal on Domestic Assistance Threshold under Civil Liability Act

Claims for domestic assistance

Since Geaghan v D’Aubert it has been accepted that section 15(3) of the Civil Liability Act (CLA) was to be interpreted as imposing a threshold before voluntary domestic assistance could be awarded, requiring both:

  • an intensity of need of six hours per week or more, and
  • a duration of six months or more

Harrison v Melham

Now in the case of Harrison v Melham a special five judge bench of the New South Wales Court of Appeal has overruled both Geaghan v D’Aubert and RTA v McGregor (which was to the same effect). 

The Court of Appeal by a 4:1 majority has now ruled that section 15(3) of the CLA is to be interpreted as a preclusion which applies only if both limbs, (i.e. less than six hours per week intensity and less than six months duration) are satisfied. 

If a plaintiff establishes a need for voluntary domestic assistance which endures for six months or more, whatever its intensity (e.g. half an hour per week) he is entitled to damages for it.  Similarly, if a plaintiff establishes a need for voluntary domestic assistance that is of six hours or more per week intensity, he is entitled to damages for it even if it endures only for one week.

The practical utility of either limb of what we must now call a preclusion rather than a threshold, is in my view reduced to virtually nil.  I believe the legislature needs to urgently amend section 15(3) to restore its operation as imposing a two limb threshold.  The legislature already has a template to achieve this in the form of section 15B(2)(c), which effects a partial restoration of Sullivan v Gordon damages.

As section 15B(2)(c) operates as a threshold requiring both six hours per week and six months, the distinction between a need for assistance in performing personal domestic activities and a lost ability to care for or assist dependants may become vitally important.  Are cooking dinner, cleaning the pool and mowing the lawn (as examples) actions performed as personal domestic activities, or to care for one’s dependants?

 

Author: William Wade

 

 

Varying disclosure requirements in Queensland personal injury matters

While legislation designed to prevent litigation involving personal injuries can be effective, parties should be mindful of the varying disclosure requirements between the different legislation covering personal injuries in order to ensure the best overall outcomes.

As with all states, Queensland’s Personal Injuries Proceedings Act (PIPA) requires a pre-court procedure to be undertaken by the parties in an effort to resolve personal injury claims without the involvement of the courts.  PIPA, like other Acts regulating personal injuries and workers’ compensation claims, has specific disclosure requirements.  The varying requirements of the different pieces of legislation can result in a quagmire of a different disclosure requirements, even within the same claim.

PIPA requires the respondent to provide copies of reports and documents which are directly relevant to a matter in issue regarding the incident giving rise to the personal injury and reports regarding the claimant’s medical, cognitive, functional or vocational capacity. 

Additionally PIPA allows the claimant to request information that is in the respondent’s possession ‘about the circumstances of, or the reasons for, the incident’.  This expression has recently been considered in two Court of Appeal decisions which have interpreted this provision strictly, with the documents required to be directly relevant to the incident as it is described in the notice of claim.

However, if a party is added as a contributor to a claim by the respondent, the respondent is only required to disclose copies of reports and documents prescribed in the legislation to the contributor.  The contributor must then provide the respondent with copies of reports and documentary material about the incident.

Parties should be mindful that if the claim does not settle and proceeds to litigation, the disclosure requirements of litigation are considerably more onerous, requiring the parties to disclose any document which is directly relevant to an issue in the pleadings.

Practically, the distinction between the disclosure requirements can be significant, especially in instances where the respondent has knowledge of the risk of injury or their have been similar previous incidents.  In such instances the disclosure requirements of PIPA and similar legislation may allow a party to avoid disclosing documents relating the previous claims.  However, if the matter does not settle, the disclosure requirements of court proceedings may require such documents to be disclosed.  This could result in a substantially different settlement outcome.  Additionally, the applicable disclosure requirements should be considered before responding to time and resource consuming requests by a claimant fishing for potentially damaging documents.

 

Author: Colin Harris