In your state, you are required to confirm you wish to access this information. Please enter 'QLD' or 'WA' in the field below to continue.

No thanks

WA Court confirms rights to sue for dependents of deceased air crash victims

Aviation safety 2003 - 2012: Report released by ATSB 30 October 2013

An interesting decision for surviving family members of air crash victims in Australia was rendered on 19 November 2013 by the Western Australian District Court.

In Cousins v Nimvale Pty Ltd [2013] WADC 175, the Court confirmed that in a claim for damages made by the dependent of a victim of a domestic air crash under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“CACL”), as that Act was applied under the Civil Aviation (Carriers’ Liability) Act 1961 (WA), a dependent may concurrently make a claim for nervous shock against the aircraft operator for a breach of a common law duty of care.

In this accident a Robinson “R44” helicopter crashed north east of the Purnululu Aircraft Landing Area in Western Australia on 14 September 2008 when the pilot deviated from the usual scenic flight track.  The pilot attempted to hover low to the terrain and either did not have available, or did not apply, the level of power needed to sustain the hover.  The aircraft developed an uncommanded descent and collided with the ground, fatally injuring the pilot and three passengers.  This case involves the claims made by the parents of two of the young women who were tragically killed in the crash.

Claims made under CACL are statutory claims, rather than claims made in negligence.  The CACL is the Australian statute which imports the Montreal Convention into Australian law (the relevant law for international air crash compensation in certain cases).  However, Part IV of that Act applies to intrastate commercial aviation, like the helicopter operation in this case, and applies a similar strict liability regime to compensate passengers and their dependents.  Part IV is also expressed, like the Conventions, to apply to be the exclusive legal source of claims for damages for the death of passengers.

The question for the Court in Cousins was whether the restriction or “exclusivity” principles under the CACL Act, which arises by virtue of a similar exclusivity of legal action in the Conventions, serves to prevent a dependent of a deceased passenger from bringing legal action against the air operator for nervous shock arising from witnessing or learning of the accident which killed the deceased, in the same case as a CACL “dependency” claim.  This question involved an analysis of foreign court judgments which hold that claims made under the Convention for death or bodily injury are the exclusive source of rights where the Conventions apply.

In short, a concurrent claim for nervous shock may be brought by the dependent as the CACL Act is the exclusive source of legal remedies for passengers, and those who survive them in relation to liability for the death of the passenger.  The CACL Act does not serve to prevent claims by the dependent not “imposed … on a carrier in respect of the death of a passenger” (s 35 of the CACL Act).  A claim for pure nervous shock by a witness to a crash is a separate claim by a non-passenger founded in the law of negligence and based on a separate common law duty of care owed by an air operator to non-passengers in circumstances such as those presented in this case.

The conclusion of the Court in Cousins is not controversial, but further serves to clarify and strengthen the rights of the dependents and surviving family members of those tragically lost in air accidents in Australia.

 

Written by Shine Lawyers on . Last modified: September 19, 2017.

Join the discussion

Share this article:

There are 0 comments. Be the first!

Tropicair Cessna Caravan 208B Crash in Papua New Guinea

An Australian man was one of three fatally injured in a Cessna Caravan 208B Caravan accident in Papua New Guinea on 25 November 2013.  The other two people killed were PNG nationals, and are thought to include the copilot/first officer. The flight of the single engine turbo prop aircraft, operated by Tropicair was a domestic […]

Read more

Safety before fun: no aerobatics in Tiger Moths until CASA AD complied with

As reported on the Shine Lawyers website in February 2014 (see here), following the release of an Australian Transport Safety Bureau (ATSB) preliminary aviation accident investigation report, the particular fixings used to join the lower wings to the fuselage of Tiger Moth aircraft (lateral tie rods) have been under scrutiny. Following the accident, the ATSB […]

Read more

Safety fears flagged in firefighting aircraft crash

The ATSB are investigating a fatal accident which occurred last week near the Ulladulla bushfires in southern New South Wales. The M18 Dromader is a single engine aircraft built by the Polish manufacturer Polskie Zakłady Lotnicze (PZL) Mielec, it is used in many countries to fight forest and bushfires, as well as for cropdusting operations. […]

Read more

NZ Robinson crash leads to grounding of R44 helicopters

On 19 February 2015, two men lost their lives when the Robinson R44 Raven II series helicopter they flew in (registration ZK-IPY) failed mid-flight. Stephen Combe, aged 42 and James Gardner, aged 18 were on board when it tragically crashed in the Lochy River basin, south west of Queenstown, New Zealand. The aircraft was owned […]

Read more

Call Us Now

Our friendly consultants are available to talk Monday to Friday, 8:15am to 6:00pm AEST.

1800 618 851

Live Chat

Chat with Shine Lawyers through the livechat system without leaving your computer. No downloading, completely private and best of all - its easy to use.

Start a live chat now

Enquire Now

Enquire now