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.
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.
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:
- an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or
- an impact with part of an aircraft that was damaged or destroyed while in flight; or
- an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or
- 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.
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
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