Australia: Scope of Damage By Aircraft Act Considered

Last Updated: 21 August 2009
Article by Andrew Tulloch

The Australian High Court was recently given an opportunity to consider the reach of the Damage by Aircraft Act 1999 (Cth) in the cases of ACQ Pty Limited v Cook and Aircare Moree Pty Limited v Cook (both of which were heard together). The decision confirmed a widening of the scope of liability for airlines and operators for consequential damage from the impact of an aircraft or part of an aircraft in flight.

Background

Early on 28 December 2000 a crop dusting aircraft owned by ACQ Pty Limited and operated by Aircare Moree Pty Limited hit a power line whilst spraying a cotton field.

As a result of the impact the power line, a 22kV conductor, dropped to a height of about 1.5 metres from the ground.

The power company responsible for the conductor was promptly informed and sent two of its employees to deal with the problem.

When they arrived it was agreed that one would drive to a site a further 7 kilometres away and isolate the conductor and the other would await isolation of the conductor before commencing assessment of the problem. Contrary to that agreement, Cook the employee who remained at the site, entered into the cotton field before the conductor was isolated. The ground was uneven and very boggy and the conductor was difficult to see against an overcast sky. Cook stumbled and fell in the muddy field and came within 60 millimetres of the conductor causing an electric arc which resulted in serious injury.

Legislative Framework

Section 10(1) of the Damage by Aircraft Act 1999 states:

'This section applies if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:

  1. an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or
  2. an impact with part of an aircraft that was damaged or destroyed while in flight; or
  3. an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or
  4. something that is a result of an impact of a kind mentioned in paragraph (a, b or c).'

Under section 10(2), both the operator and the owner of the aircraft are jointly and severally liable in respect of injury, loss, damage or destruction.

Section 11 provides for strict liability without proof of intention, negligence or other cause of action.

The case was first heard in the District Court of New South Wales where District Court Judge Johnstone found ACQ and Aircare liable and awarded damages of AU$953,141 with no reduction on the grounds of any contributory negligence as the plaintiff's claim was not a claim in negligence. The trial judge held that the plaintiff had suffered personal injury caused by 'something' that was a result of an impact of the aircraft in flight with the conductor, that 'something' being the dislodgement of the conductor from a supporting pole which created a foreseeable risk for persons near the live conductor.

A similar finding was reached in the Court of Appeal where it was held that the 'something' which caused the plaintiff's personal injuries was the creation of a danger to persons who got close to the conductor.

High Court Decision

In the High Court it was argued that 'something that is a result of an impact' should be construed as being a thing which 'has an immediate (or reasonably immediate) temporal, geographical and relational connection with an impact'. It was argued that the chain of causation was too remote to apply to the plaintiff who, as a well trained worker, had attended the scene fully appreciating the danger from the damaged conductor. In a unanimous decision the High Court (comprising Chief Justice French and Justices Gummow, Heydon, Crennan and Bell) rejected these arguments.

The appellants conceded at the hearing that a fire fighter who attended a burning house fire which had resulted from a plane exploding on landing should be covered by section 10. The High Court considered that there was no difference between the role of the fire fighter in reducing perils from a fire caused by an aircraft and the role of a linesman in reducing and overcoming perils from a damaged conductor struck by an aircraft. Both were engaged in activities incidental to the reduction and abatement of those perils.

The appellants sought to argue that the findings were inconsistent with the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface. Article 1 of that Convention provided that there was no right to compensation 'if the damage is not a direct consequence of the incident giving rise thereto'. Although the Rome Convention previously had force of law in Australia under the Civil Aviation (Damage by Aircraft) Act 1958 (Cth) the legislation was repealed by the current Act which, the High Court noted, was aimed at an improved and more comprehensive regime than that previously in place. Accordingly, the High Court found that the Court of Appeal was correct to conclude that section 10(1)(d) does in a sense extend liability from 'direct consequences' to 'indirect or consequential results'.

There was also a question as to whether the Court of Appeal had gone too far in its interpretation of the test of the causation. The High Court noted that Chief Justice Mason in the case of March v Stramare Pty Limited (1991) 171 CLR 506 had concern merely to reject the 'but for' test as an exclusive criteria of causation. But the High Court stated:

'It is true that "but for" the impact of the aircraft on the conductor the plaintiff would not have been injured; but the causal relationship between the impact and the injury was much closer than that, and did not rest exclusively on a "but for" analysis'.

In all the circumstances the High Court dismissed the appeals and the judgment for the plaintiff stands.

Conclusion

Aviation insurers may well be concerned as a result of this decision about the potential for arguments to be raised in the future about where one draws the line when considering liability for 'something that is a result of an impact with an aircraft or part of an aircraft in flight.' It is possible that the legislators in their endeavour to improve on the compensation available under the Rome Convention, may have gone a little too far in allowing for recovery of consequential damage. But the High Court has made it clear that each case must be addressed on its own facts and merits, so in compensating the linesmen in the cotton field the Court may not in fact have opened a legal minefield.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions