3 September 2012

Australia updates its aviation liability legislation

This article describes proposed changes to the Civil Aviation (Carriers' Liability) Act and the Damage by Aircraft Act.
Australia Transport
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Transport and Logistics Bulletin (Australia)

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 [1998] FCA 1107.

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 [2008] NSW CA161 and [2009] 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 destruction'.


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 regime.

© DLA Piper

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 this publication.

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

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