Article 29 Warsaw Convention: two years is too late to wait bring a claim for the death of an air passenger

The High Court of Australia has ruled that a widow, daughter and son were too late to bring a claim against a helicopter operator for compensation for the death of their husband / father because the claim was brought outside the two year time limit in the Warsaw Convention.

Mr Stephenson, the husband / father, was killed when the helicopter in which he was a passenger, struck an overhead power line, flipped and crashed while conducting a low-level aerial noxious weed survey near Parkes in NSW. Mr Stephenson was an employee of the Parkes Shire Council, which was joined in the proceedings as a co-tortfeasor.

The accident occurred on 2 February 2006, but significantly, the claims for negligently inflicted psychiatric harm (nervous shock) were not commenced until 2009, more than two years later.

The decision is Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14 (8 May 2019) (Keifel CJ, Bell, Keane and Edelman JJ jointly, Gordon J agreeing).

The Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the CACL Act)

The CACL Act gives the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929) the force of law in Australia. The Warsaw Convention was amended by the Montreal No 4 Protocol (1999). The High Court of Australia refers to it as the ‘Warsaw Convention’.

The CACL Act provisions relevant to this situation are:

s 28 CACL Act (which implements Article 17 1. Warsaw Convention) creates the cause of action:

... the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

s 35(2) CACL Act (which implements Article 24 Warsaw Convention) states that s 28 is the exclusive basis for liability – it replaces any other civil liability of the carrier:

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 the passenger.

s 34 CACL Act (which implements Article 29 Warsaw Convention) sets the time limit for making a claim under s 28:

The right of a person to damages … is extinguished if an action is not brought by him or for his benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination; (a) the date on which the aircraft ought to have arrived at the destination; or (b) the date on which the carriage stopped; whichever is the later.

The reasoning of the High Court

The High Court adopted an international approach:

The "cardinal purpose" of the CACL Act in giving effect to the Convention was to achieve uniformity in the law relating to liability of air carriers, so that, in those areas with which the Convention deals, it contemplates a uniform code that excludes resort to domestic law. (para 36)

In terms of liability of a carrier for injury to or death of a passenger:

… the purpose of the Warsaw Convention is both to create, and at the same time limit, the liability of a carrier “for damage sustained in the event of the death” of a passenger. (para 12)

[It creates a liability] that is distinct from any liability that might arise under domestic law.

[the] liability that s 28 creates which s 35(2) substitutes [replaces] "any civil liability of the carrier under any other law in respect of the death of the passenger" (para 16)

[It limits the liability of the carrier by creating] uniform and exclusive rules as to the liability of the carrier for events involving injury to or the death of passengers … (para 25)

In this case, Mr Stephenson was a passenger (although he was an employee giving directions, he was not involved in the operation of the flight). His widow and children:

were entitled to claim damages pursuant to s 28 of the CACL Act. (para 33)

This is because the entitlement to claim is not confined to a passenger because the claim is in respect of the death of the passenger under s 35(2).

But the only claim available was under s 28 (their claim under the Compensation to Relatives Act could not be made):

That entitlement, was by reason of s 35(2) exclusive of their entitlement to claim damages for negligence under the law of tort ... Indeed, s 35(2), by dispensing with the need to prove negligence on the part of the respondent, facilitated the prosecution of those claims. An integral aspect of the scheme was, however, that s 34 limited the temporal availability of those claims. (para 33)

The High Court concluded that the claim must fail because the time limit had expired:

The Stephensons' entitlement to claim under s 28 of the CACL Act was extinguished by s 34 of that Act before their proceedings were commenced. [the proceedings were commenced after the two year time limit had expired] (para 5)

Conclusion

This decision means that the High Court of Australia is in the judicial mainstream, along with the US Supreme Court and the UK Supreme Court, in terms of recognizing that the Warsaw Convention lays down uniform rules to apply to international aviation to the exclusion of domestic laws which might otherwise apply for matters with which they deal.

Internationally, this decision is likely to be of great interest because it supports the proposition that Article 24 should be interpreted as a compete preemption of any other law of the State which deals with a claim in respect of the death or injury of a passenger.

Domestically, a significant aspect of the decision is that the High Court accepted that the widow and the children would have been entitled to claim for negligently inflicted psychiatric harm, had they commenced proceedings in time. Gordon J specifically endorsed the availability of such a claim.

This is in contrast with a passenger’s situation where no claim can be made for mental injuries unless they are a result of or a manifestation of physical injuries - Pel-Air Aviation Pty Ltd v Casey (2017) 93 NSWLR 438.

© Copyright 2022 Cordato Partners