Australia: High Court Rules On The Issue Of Liability For "Damage Caused By Aircraft To Those On The Ground"

On 5 August 2009, the High Court issued its judgment on liability under sections 10 and 11 of the Damage by Aircraft Act 1999 (C'th) ("Act").

Nature of liability

Subsection 10(1) of the Act provides for liability as follows.

Subsection 10(2) of the Act provides that if subsection 10(1) of the Act applied, both the operator of the aircraft and the owner of the aircraft (immediately before the impact happened), are jointly and severally liable in respect of the injury, loss, damage or destruction.

Section 11 of the Act then provides that damages of the kind covered by section 10 are recoverable in an action against all persons who are liable for such injury, loss, damage or destruction without proof of intention, negligence or other cause of action as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants.

Facts of the case

The case arose from a crop dusting accident in NSW. During the course of crop dusting on a field over which a power line passed, the aircraft collided with the conductor and caused it to drop to a level of about 1.5 metres from the ground. The relevant power company sent out two employees to deal with the difficulties. They agreed that one of the employees would drive to a site several kilometres away and isolate the conductor. However, the plaintiff in the case had entered the field before the conductor was isolated to assess what damage had been done and what work would be required. Due to the condition of the field with many cotton plants and uneven and boggy ground, the plaintiff could not see the conductor and approached the conductor without realising its presence and was injured by an electrical arc from the conductor to the plaintiff.

The appellants in the High Court case (the defendants in the original case) lost, not only at first instance but also in their appeal to the Court of Appeal of the NSW Supreme Court.

The appellants then lodged an application to seek leave to appeal to the High Court which the High Court subsequently approved.

Main arguments before the High Court

The appellants sought to lead a number of arguments to limit the scope of the effect of the sections of the Act but were ultimately unsuccessful.

One argument was that the sections provided a broader category of liability than that contemplated by the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface agreed at Rome on 7 October

1952 (which had led to the introduction of legislation as the precursor to the Act).The appellants sought to argue that the sections should not be interpreted to include any indirect or consequential results of an impact. However, the High Court found that the Court of Appeal had been correct to conclude that paragraph 10(1)(d) of the Act did, in a sense extend liability from "direct consequences" to "indirect or consequential results" to overcome drawbacks to the Rome Convention regime in which it had formed gaps in earlier State and Territory legislation.

The second main argument related to issues of "causation". In relation to this issue, the High Court rejected an argument by the appellants which would have sought to exclude liability by adopting a narrow approach to causation.

Thirdly, by way of providing a number of "extreme" examples of situations in which liability could attach (adopting the reasoning of the Court of Appeal), the appellants endeavoured to prove that the plaintiff should be unsuccessful by showing that the approach to liability was too broad and could lead to unreasonable results. However, the High Court rejected such an approach and refused to limit the provisions of the section to certain hypothetical fact situations only. The High Court held that it would not be appropriate to comment on a wide variety of potential circumstances and that each case would depend upon its own facts and determination as to the application of the Act to those relevant facts at that relevant time. The High Court could only comment on the current facts and in doing so and having rejected the arguments of the appellants, endorsed the judgments of the lower courts.

Conclusion

The case represents a useful commentary on the potential impact of the Act to create liability for a wide variety of people affected by an aircraft accident other than those actually on the relevant aircraft or whose cargo is in the aircraft. The judgment also operates as a timely reminder for those involved in the aviation industry to ensure that they adopt practices to limit liability and hold insurance against such liability.

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