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

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.