Legislation has been introduced to the Australian Parliament to
amend the Civil Aviation (Carriers' Liability) Act
1959 (Cth) (Carriers' Liability Act) and the Damage by
Aircraft Act 1999 (Cth) (Damage by Aircraft Act).
Carriers' Liability Act
The legislation will increase the cap on carriers' liability
for passenger death or injury in domestic flights from AU$500,000
to AU$725,000. Carriers are also required to increase the amount of
their mandatory insurance cover to $725,000 per passenger for
domestic flights. This amendment was long overdue in view of the
generally more generous compensation available in international air
carriage, and also to take account of inflation. The previous limit
of $500,000 per passenger was set in 1994.
The legislation also removes an anomaly that existed between the
international regime and the domestic regime by replacing the words
'personal injury' in section 28 of the Carriers'
Liability Act with the words 'bodily injury'. The latter
term is that used in the Montreal Convention 1999. The effect is to
exclude claims for purely mental injuries, which overcomes the
effect of the Federal Court appeal decision findings in South
Pacific Air Motive and Anor v Magnus & Ors  FCA
The legislation also replaces references to the Montreal
Protocol 4 with reference to the Montreal Convention 1999.
Damage by Aircraft Act
In response to the findings in the case of Cook v Aircare
Moree  NSW CA161 and  HCA 28, the Damage by
Aircraft Act is amended so that there is a provision for
compensation payments to be reduced in circumstances where the
victim was partially responsible for the damage. Until this
amendment was made, contributory negligence was unavailable as a
defence for claims brought under the Damage by Aircraft Act.
The legislation also enables defendants to now seek contribution
from others who may have contributed to the damage suffered by the
person bringing the claim, again in response to the outcome on the
Cook v Aircare Moree litigation.
Finally, the Damage by Aircraft Act is amended so that claims
for compensation for mental injuries in the absence of any physical
damage to the person or property are excluded, in line with the
similar amendments made to the Carriers' Liability Act.
Obviously the concern was that the Damage by Aircraft Act
otherwise imposed strict liability and witnesses to an air crash
from afar could have brought claims for compensation for mental
injury and trauma suffered as a result.
The insertion of subsection 10(1A) provides that the
compensation section does not apply in relation to a person who
suffers mental injury 'unless the person, or property owned by
the person, suffers other personal injury, material loss, damage or
The amendments are largely uncontroversial.
Clearly a decision was made that it was inappropriate to apply
the international regime under the Montreal Convention 1999 to
domestic carriage of passengers. It was thought that to do so would
lead to greater uncertainty for air carriers and may result in it
taking longer to settle compensation claims. The increase in the
liability cap is an appropriate compromise and the removal of the
right to compensation for purely mental injury brings the domestic
regime into closer alignment with the international regime.
The amendments to the Damage by Aircraft Act also apply a
sensible balance to what remains essentially a strict liability
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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