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    ULUR   US90403T3086

ULURU INC.

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ULURU : Claiming damages for personal injuries on a joy flight to Uluru - common law and Carriers Liability Act

10/21/2020 | 10:07pm EDT

On 17 January 2018, Mr Stevens was a passenger in a helicopter joy flight which departed from and was scheduled to return to a single helipad near Uluru (Ayers Rock).

During the joy flight, the helicopter rapidly lost height and crashed to the ground causing severe injuries to Mr Stevens, including paraplegia.

Both Mr Stevens and his employer (who had arranged for Mr Stevens and others to take the flight on that day as a reward for their achievements during the course of their employment) brought claims in the New South Wales Supreme Court against the defendant as owner and operator of the helicopter which it used for joy flights pursuant to various licenses and certifications that it held.

Mr Stevens claimed damages at common law for his injuries caused by the defendant's negligence and in the alternative, a claim for damages under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ('the Commonwealth Act').

Early this year, both Mr Stevens and his employer filed separate notices of motion in the court requesting that it determine whether the defendant's liability arose under either the common law or the Commonwealth Act.

Given the severity of his injuries, the most advantageous outcome for Mr Stevens would be if his claim for damages were to be assessed at large under common law principles, as opposed to the damages restrictions outlined in section 31 of the Commonwealth Act.

In determining the notices of motion, Justice Wilson of the New South Wales Supreme Court considered the construction of section 27 of the Commonwealth Act which outlines the application of the act to the carriage of passengers.

Mr Stevens argued that the Commonwealth Act did not apply to his claim and referred to the act as applying to relevant carriage of passengers 'between a place in a Territory and another place in that Territory'. He argued that the Commonwealth Act, therefore, could not include carriage which both departed from and arrived at the same place in that Territory, with no intervening stopping place, i.e. his joy flight was pursuant to a contract for carriage from one place to the same place and therefore the Commonwealth Act (and its associated damages restrictions) did not apply to his claim.

The employer-supported and adopted the position put forward by Mr Stevens.

Justice Wilson looked at the construction and purpose of the Commonwealth Act given that the Northern Territory (where the accident occurred) had not passed its own similar legislation such as New South Wales (Civil Aviation (Carriers' Liability) Act 1967) ('the NSW Act') and Victoria (Civil Aviation (Carriers' Liability) Act 1961) ('the Victorian Act'). Her Honour noted that the NSW Act provided for that act to apply to the carriage of passengers 'from a place in the State back to that place'.

Her Honour also noted that although the Victorian Act stated the opposite, referring to the act applying to the carriage of a passenger 'between a place in Victoria and another place in Victoria.', the Victorian Court of Appeal in Mount Beauty Gliding Club Inc v Jacob  920040 10 VR 312; [2004] VSCA 151 had, by majority, previously determined that it was inconsistent with the purpose of the legislation for the Victorian Act to apply inconsistently to air travel, dependent upon the geographical location of the points of departure and return.

Justice Wilson found that although there were differences in the wordings of the Commonwealth Act, the NSW Act and the Victorian Act, adopting the literal meaning within those acts would produce unintended results and the weight of previous authorities favoured a construction that produced a meaning consistent with the whole of the particular statute and its purpose.

In her judgment1, Justice Wilson provided hypothetical examples based upon the interpretations proposed by Mr Stevens and his employer, whereby two separate passengers, departing on two separate joy flights from the same place with the intention of one returning to the place of departure and the other landing elsewhere (even within the same state/territory) would, if suffering the same injuries on their flights, result in two different outcomes (one bound by the Commonwealth Act and the other not) which may lead to unfairness and injustice.

Looking to the Queensland position, the Civil Aviation (Carriers' Liability) Act 1964 (Qld) ('the Queensland Act') contains a similar provision to the NSW Act, stating that it applies to the carriage of a passenger 'between a place in Queensland and another place in Queensland'. Applying the reasoning of the Victorian Court of Appeal in Mount Beauty, as followed by Justice Wilson in Mr Stevens claim, would, in my view, likely result in the application of the Commonwealth Act and Queensland Act to the assessment of damages for injury suffered on a joy flights departing from and intending to return to the same place in Queensland.

You can view the decision here:

https://www.caselaw.nsw.gov.au/decision/1753e29e7b631a3218941185

Footnote

i Stevens v Professional Helicopter Services Pty Ltd; Stryker Australia Pty Ltd v Professional Services Pty Ltd [2020] NSWSC 1443

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Trent Johnson
Bennett & Philp Lawyers
Level 13, 15 Adelaide St
Brisbane
4000
AUSTRALIA
Tel: 73001 2999
Fax: 73001 2989
E-mail: MEvans@bennettphilp.com.au
URL: www.bennettphilp.com.au

© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source Business Briefing

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