Jones v Airlines of Tasmania Pty Ltd [2023] TASSC 36

PARTIES: JONES, William Henry in his own right and as

Jones v Airlines of Tasmania Pty Ltd [2023] TASSC 36 | Case summary | Zoe

[21]

On 29 December 2014, a light aircraft operated by the defendant on an intrastate flight crashed into the sea off the Tasman Peninsula in Tasmania. The pilot and the only passenger, Mr Timothy Jones, were killed. Mr Jones is survived by his three adult children, who are the plaintiffs in this action.
The action was commenced by writ issued on 15 December 2016 endorsed with a claim for damages, pursuant to the Civil Aviation (Carrier's Liability) Act 1959 (Cth) ("the Commonwealth Act"). The statement of claim included a claim for damages for "nervous shock".
Parts IV and IVA of the Commonwealth Act have force in Tasmania in respect of intrastate flights by reason of the Civil Aviation (Carriers' Liability) Act 1963 (Tas), s 5.
An amended writ and statement of claim were filed, expanding the claim to plead an action for damages for nervous shock under the general law of tort, as modified by the Civil Liability Act 2002 (Tas), and damages for dependency, pursuant to the Fatal Accidents Act 1943 (Tas).
Then, in response to the High Court decision of Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14, 266 CLR 212, there were interlocutory proceedings in this matter before Holt AsJ. The plaintiffs applied to amend the statement of claim by deleting the claims under the Fatal Accidents Act and the general law of tort for damages for negligently-caused psychiatric injury, and by confining the claim for damages for psychiatric injury to claims under the Commonwealth Act. The defendant sought an order striking out the parts of the existing claim under the Fatal Accidents Act and the general law of tort, and an order striking out the claim for damages for psychiatric injury under the Commonwealth Act.
The learned Associate Judge determined that the existing claims under the Fatal Accidents Act and under the general law of tort were clearly untenable, having regard to the decision in Parkes, and should be struck from the existing pleading. Further, his Honour determined there was a serious question to be tried as to whether the plaintiffs can recover, under Part IV of the Commonwealth Act, damages for pecuniary loss resulting from psychiatric injury, and leave to amend was given: Jones v Airlines of Tasmania Pty Ltd [2020] TASSC 5. As a consequence of the decision of the Associate Judge, an amended statement of claim has been filed. It pleads that an "accident" pursuant to s 28 of the Commonwealth Act caused the death of the deceased and that, as a consequence of the accident and "by reason of the death of the deceased", the plaintiffs have suffered "nervous shock"; a loss of dependency, pain and suffering, inconvenience and loss of enjoyment of the amenities of life, and consequential loss and damage.
The Associate Judge made an order by consent that the following question is to be tried separately and before any other question:

[53]

Other sections in Part IV, such as s 31 which prescribes a cap on damages, s 32 which contains a prohibition on carriers contracting out or seeking to reduce that cap, and s 34 which contains a limitation period, are the equivalent provisions to Arts 22, 23, and 29, respectively, of the Warsaw Convention as amended.
There is well-settled authority on the purpose and operation of the Warsaw Convention and its amendments (described as the "Convention") and Arts 17 and 24, in particular. The Court in Parkes considered these matters in determining the operation and scope of s 35(2), by reference to decisions of the United Kingdom and the United States, both of which are parties to the Convention. I turn now to the well-settled principles relating to the Convention, drawing on the attention they received in the judgments in Parkes.
The cardinal purpose of the Convention is to "achieve uniformity of rules governing claims arising from international air transportation.": Floyd, 499 US at 552; see Zicherman v Korean Air Lines Co [1996] USSC 6; 516 US 217 at 230 (1996) and El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999) at 169.
A complementary purpose of the Convention is to accommodate or balance the interests of passengers seeking recovery for personal injuries, and the interests of air carriers seeking to limit potential liability: Tseng at 170. In particular, Arts 17, 22, and 24 of the Convention were designed "as a compromise between the interests of air carriers and their customers worldwide."
Thus, in Art 17 of the Convention, carriers are denied the contractual prerogative to exclude or limit their liability for personal injury. Passengers, however, in Arts 22 and 24, are limited in the amount of damages they may receive, and are restricted in the claims they may pursue by the conditions and limits set out in the Convention. The Convention also sets limits in Arts 28 and 29 by restricting the places in which actions for damages must be brought, and in providing that the "right to damages" shall be extinguished if an action is not brought within two years.
It can thus be seen that the Convention represents a compromise. In the words of Lord Hope in Sidhu v British Airways Plc [1996] UKHL 5; [1997] AC 430 at 453: "A balance was struck, in the interests of certainty and uniformity."
There are also well-settled principles concerning the exclusive nature of the event-based liability in Art 17. In Sidhu v British Airways Plc at 447, it was said that the purpose of the Convention is to:

[57]

In Tseng, Justice Ginsberg, in delivering the opinion of the Court, referred to Sidhu and decisions of courts of other nations bound by the Convention. Her Honour concluded at 176 that "the text, drafting history, and underlying purpose of the Convention, in sum, counsel us to adhere to a view for the treaty's exclusivity shared by our treaty partners." The plurality judgment in Parkes, after reviewing the cases in the United Kingdom and the United States, observed at [12] that the decisions "make the important point that the purpose of the Warsaw Convention is both to create, and at the same time to limit, the liability of a carrier 'for damages sustained in the event of the death' of a passenger."
While the Convention provides for exclusivity in terms of liability, it leaves untouched the question of who may recover and what type of damages are recoverable. These are questions of the adjudicating courts to be determined according to domestic law, a point well demonstrated by a decision of the United States Supreme Court in Zicherman v Korean Air Lines Co 15 US 217.
In Zicherman v Korean Air Lines Co, a suit was brought under Art 17 of the Warsaw Convention, in which judgment was sought against the airline for pecuniary damages, and for loss of society resulting from the death of a relative in a plane crash for their grief and mental anguish.
The Court considered whether loss of society of a relative is made recoverable by Art 17. It was noted that the English words "damage" or "harm", or in the official text of the Convention, the French word "dommage", can be applied to an extremely wide range of phenomena. It was thought that "dommage" means "legally cognisable harm", but that Art 17 leaves it to adjudicating courts to specify what harm is cognisable.
It was said that the most natural reading of Art 24 is that in an action brought under Art 17, the law of the Convention does not affect the substantive questions of who may recover and what they may be compensated for: "Those questions are to be answered by the domestic law selected by the courts of the contracting states."
In Zicherman, the airplane crash occurred on the high seas and compensable harm was governed by the Death on High Seas Act, which only provided for pecuniary loss and, thus, there could not be recovery for loss-of-society damages. Logically, then, if that Act had made provision for loss-of-society damages, then recovery would have been available.
As noted, the provisions of Part IV of the Commonwealth Act are the same as Arts 17 and 24 in terms of creating an event-based liability (s 28) and providing for exclusivity (s 35(2)).

[58]

The arguments principally focus on the construction of Part IV of the Commonwealth Act and, in particular, s 35(3)-(10). The defendant argues these subsections provide the damages that may be recovered for the liability created in s 28 and are exhaustive in their terms, and because they do not provide for damages for psychiatric injury, such damages are excluded by implication. The terms nervous shock, psychiatric injury, and psychiatric harm are referred to interchangeably in these reasons.
The plaintiffs argue the subsections regulate the making of claims, but are not a complete code on the heads of damage that are recoverable. Section 28 provides a broad right to claim for damages arising out of the death of a passenger, and the relevant provisions of Part IV, such as s 35(3)-(10), do not exclude damages for psychiatric harm.
Thus, the central question that arises is whether Part IV exhaustively states the damages that are recoverable in Australia and excludes damages for psychiatric harm in doing so. The question is one of statutory construction, having regard to the text, context, and purpose of the legislation, and these indicia have been addressed comprehensively in the submissions.
There are arguments on two other matters which ought to be considered before the construction of Part IV. First, whether there is authority on point that decides the issue of the correct construction of Part IV and, consequently, the question in this case. The plaintiffs submit there is and rely on Parkes as authority for the scheme allowing for claims for psychiatric harm. The defendant, however, says I am bound by the reasoning in two cases, namely McKenna v Avior Pty Ltd [1981] WAR 255 and South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1988) 87 FCR 301, which resolve this question in their favour.
Second, the plaintiffs argue that the Commonwealth Act, like the Convention, leaves the question of whether damages for psychiatric injury may be recovered to domestic law. Family members may claim damages suffered by reason of the death of the deceased under Part IV if it is a legally cognisable claim under the domestic law of the forum which, in this case, is Tasmania. Given that damages for psychiatric injury are legally recognised in Tasmania, the plaintiffs argue that damages for this claim can be awarded under s 35 of the Commonwealth Act. It can be seen that the plaintiffs' argument is analogous to the reasoning in Zicherman, mentioned above, which indeed was one of the cases that featured in their submissions.
The plaintiffs examined the domestic law to demonstrate that claims for psychiatric harm are legally cognisable. The submissions canvassed in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, in which the Court held that damages for pure mental harm were recoverable in "aftermath" situations where relatives had not heard or seen the victim being injured or killed, but arrived after. The submissions also referred to the High Court decision of Tame v State of New South Wales [2002] HCA 35, 211 CLR 317, in which the majority held the law no longer required that a plaintiff experience sudden shock, or directly perceive the person being killed, injured, or put in peril to successfully make a claim for pure mental harm.
The plaintiffs' examination of the law included references to the Civil Liability Act 2002 (Tas), which impinges on claims for damages for nervous shock. Section 31 provides:

[79]

These passages, particularly the passage at [98], is relied upon by the plaintiffs as answering the question in the affirmative about whether claims for nervous shock can be awarded under Part IV. It is said that the debate ends with these passages from Parkes which confirm that a claim in respect of a psychiatric injury is compensable, so long as it is brought within the confines and limits of the Commonwealth Act, namely the two-year limitation period and within the monetary cap set by the Act. It is thus submitted that, "The [Commonwealth] Act leaves it to domestic law to determine what damages are claimable for non-passengers for mental harm."
It is argued for the defendant that the judgment of Gordon J in Parkes and the passages relied upon do not support the plaintiffs' argument. It is submitted that her Honour was there dealing with the provisions of the Commonwealth Act which prescribe the sphere of exclusive operation of the damages regime in Part IV, namely ss 28 and 35(2). The passages relied upon say nothing as to the issue in the present case, namely whether a claim for mental harm would be capable of succeeding within the regime created by Part IV. Rather, her Honour points out that if any compensation were to be sought, such a remedy could only find its source in Part IV.
It was submitted by the defendant that the issue said to have been determined by Gordon J had not been raised by the facts, was not the subject of any argument, and was not addressed by the majority judgment or by her Honour.
I accept the submissions of the defendant. The judgment of Gordon J speaks of a claim for nervous shock and whether it falls within its field of exclusivity, not whether it could succeed under the Commonwealth Act.
The passage at [98] is concerned with what liabilities are caught by s 35(2) of the Commonwealth Act, not what heads of damages are provided for in s 35(3)-(10) in answer to the auxiliary questions.
The passage following at [99] makes this plain:

[81]

The question of whether a claim for damages for psychiatric injury could succeed under the Commonwealth Act did not arise for consideration by the High Court in that case, because if the claim did fall within the Act, the claim in that case would have been precluded as the time period had expired. The judgments took care to define the issue and to characterise it as the sole issue for determination. There is no suggestion in the judgments that the point the subject of this case was argued.
It might be argued that if there were real questions or doubts about whether such claims were tenable and whether damages for psychiatric injury could succeed under the Commonwealth Act, then it is surprising that the judgments did not express reservations about that.
Counsel for the defendant, however, submitted that, in argument before the High Court, care was taken not to impinge on this point. Counsel speaks with experience when he says the matter of whether such a claim could succeed under the Commonwealth Act was not argued as he was counsel for the respondent in Parkes.
I conclude that the judgments relied upon in the High Court decision of Parkes do not determine the issue and the passages said to be determinative do not lend support for the plaintiffs' argument.
It is also argued for the plaintiffs that, more generally, the judgments in Parkes support the availability of awards for nervous shock within Part IV of the Commonwealth Act. The argument relied on the principles concerning the Conventions, referred to in Parkes, such as, at [67], that the Conventions are an exclusive, uniform international code in relation to the matters they purport to deal with, and any matters not dealt with by the Conventions are left to the rules of domestic law. Referring to Zicherman, Gordon J stated at [84], "the Warsaw Convention permitted compensation only for legally cognisable harm, as a result of the death of the passenger in the course of the flight, but left the specification of what harm was legally cognisable to the applicable domestic law." The plaintiffs' arguments referred to the common law and the Civil Liability Act to demonstrate that domestic law recognises claims for nervous shock.
While the contention that the Conventions provide an international code for air carriage but the matters of what are legally cognisable claims and the heads of damage are left to domestic law is sound, the submissions for the plaintiffs on this point provide an incomplete excursion into the domestic law. It is not just a matter of having regard to the common law on nervous shock and the Civil Liability Act. Part of the domestic law is the Commonwealth Act, Part IV, and the provision made in s 35(3)-(10). If, as argued by the defendant, these subsections provide an exhaustive statement of what damages may be recovered, then there can be no recourse to the heads of damages recoverable at common law for psychiatric harm. As noted, this question of statutory construction is the central issue in this case. As a final remark here, I note the case of Parkes provides guidance in the task of interpreting the subsections and will be considered later in the relevant context.

[86]

Smith J added that if the legislature had intended to depart from the established principle that nothing can be given by way of solatium for the injured feelings to all the relatives enumerated in subs (5), more clear and appropriate language would have been employed for this purpose.
The issue decided by McKenna relates to a claim for damages by way of solatium for injured feelings or grief. The decision of McKenna did not decide the issue in this case, which relates to whether damages for psychiatric harm can be awarded under Part IV of the Act. Indeed, the issue did not arise on the facts. The learned Associate Judge in his interlocutory decision considered McKenna and observed that Smith J was concerned with a claim for damages by way of solatium for injured feelings without there being any claim for resultant pecuniary loss, whereas the claim by the plaintiffs in the present case is for pecuniary loss arising not merely from emotions but as a result of psychiatric injury. I agree that the difference has significance and consider the present case is to be distinguished from McKenna on that basis_._ The question of whether a claim for pecuniary loss resulting from psychiatric injury may be awarded under the Commonwealth Act was not decided by McKenna.
This is not to ignore the reasoning adopted by Smith J, as McKenna stands as dicta for the approach that damages under Part IV are to be awarded according to Lord Campbell's Act principles. In deference to the standing of the case, the reasoning should be considered. Section 38 features prominently in the reasoning as evidencing the kind of "balancing" that is reflected in Lord Campbell's Acts (see in s 10 of the Tasmanian Fatal Accidents Act a similar list to the list in s 38 of what must be disregarded). I accept that s 38 is an indication to be taken into account in favour of the defendant's argument that Part IV reflects Lord Campbell's Act provisions.
It must be noted that a consideration of the approach taken by Smith J and its persuasive force also draws in other factors which assist in the task of statutory interpretation. As seen below, one of the factors is extrinsic materials, namely the Second Reading Speech for the Commonwealth Bill, which was not referred to by Smith J. The Second Reading Speech suggests the meaning of the Commonwealth Bill does not coincide with the view taken by Smith J that damages are to be assessed according to Lord Campbell's Act principles which exclude solatium, compensation for mental suffering resulting from the death, or for loss of the deceased's society, and, in the case of infants, loss of a parent's care and guidance.
Ultimately, the question of whether damages are to be assessed according to Lord Campbell's Act principles requires a more comprehensive consideration of Part IV of the Act beyond s 38, as well as consideration of the similarities and dissimilarities with Lord Campbell's Act provisions.
The plaintiffs contend the case has lost its force given the law regarding claims for mental harm has evolved significantly since McKenna was decided in 1981. The plaintiffs submit that the Conventions (and the Commonwealth Act) have been purposefully drafted in such a manner so as to allow domestic law surrounding "for what damages" to evolve.
The defendant draws attention to the fact that McKenna has been followed by a single judge of the Supreme Court of Queensland, in Kepa v Lessbrook Pty Ltd [2012] QSC 311; (2012) 267 FLR 103 at [22]- [23]. In my view, this decision does not add any force to the authority of McKenna. Following the death of five people in a passenger aircraft crash, each of the spouses of the deceased claimed damages for dependency for and on behalf of the estate and dependents pursuant to the Civil Aviation (Carriers' Liability) Act 1964 (Qld) which applied the provisions of the Commonwealth Act. Questions arose about the assessment methodology for the claim of loss of services, and the judgment at [22] confirmed the breadth of s 35(8) such that it need not be a monetary loss and may include future expected financial benefits and services, citing McKenna. Later in the judgment at [31], McKenna is cited for another proposition regarding the exercise of valuing lost services.
McKenna is not endorsed on issues that bear on this case and its citation in the context of the issues in Kepa v Lessbrook does not advance the defendant's argument. It does not appear from the judgment that there was a claim for grief and distress as there was in McKenna or, relevant to this case, a claim for damages arising from a psychiatric injury. No consideration was given to whether such claims might be compensable under Part IV of the Commonwealth Act.
It is submitted on behalf of the defendant that McKenna was referred to with approval by Beaumont and Sackville JJ in South Pacific Air Motive Pty Ltd v Magnus [1998] FCA 1107; (1998) 87 FCR 301 and by Gibson DCJ in Wahba v Carroll & O'Dea Lawyers [2018] NSWDC 128 at [84].
The defendant relies upon a passage in the dissenting judgment of Beaumont J in Magnus at 306, said to have referred to McKenna with approval. It can be seen, however, that Beaumont J did not express approval of the decision but rather, noted McKenna in a survey of authorities from various jurisdictions.
Sackville J in that case considered whether s 35(8) was intended to embrace nervous shock claims by non-passengers. In a passage at 348-349 relied upon by the defendant, Sackville J quoted Smith J in McKenna as "one view" about the subsection. Sackville J went on to state that a broader view of the subsection might well be open, namely that it permits the court to award solatium to certain relatives for the suffering (not nervous shock) caused by the death. The judgment of Sackville J, therefore, did not in fact endorse McKenna.
In Wahba v Carroll & O'Dea Lawyers, Gibson DCJ was concerned with the question of whether the Civil Liability Act 2002 (NSW) applied to an assessment of damages under the Commonwealth Act. In a passage at [84] relied upon by the defendant, Gibson DCJ referred to McKenna in the following terms:

[89]

The defendant submits that I am bound by the reasoning of the Full Court of the Federal Court in South Pacific Air Motive v Magnus and the majority judgments should be treated as determinative of the issue in this case.
In Magnus, an aeroplane flying from Sydney to Norfolk Island crashed shortly after take-off. No passengers died in the crash, but a representative proceeding was brought on behalf of both passengers and non-passengers for physical and psychological injury. The Full Court (Sackville and Hill JJ agreeing, with Beaumont J dissenting) held that claims for psychiatric injury by non-passengers were outside the ambit of Part IV of the Commonwealth Act, and so were not out of time.
On the point of whether the claim was outside the ambit of Part IV, the majority judgments in Magnus were disapproved by the High Court in Parkes, and the dissenting judgment of Beaumont J preferred: Parkes at [25]. Beaumont J had determined that, as a matter of either a literal or purposive interpretation (or both), a claim for nervous shock by a passenger, whether freestanding or as part of a wider claim for personal injuries, should be regarded as within s 28 and the other applicable provisions of Part IV: p 318. Further, taken literally, a person other than a passenger could fall within ss 28 or 36, or otherwise within Part IV, if he or she sustained psychological damage by reason of the death or personal injury of a passenger.
In Magnus, Sackville J determined, and Hill J agreed, that the Commonwealth Act has no application to claims for psychological injury to non-passengers arising out of injuries occurring to passengers. Sackville J considered s 12 of the Commonwealth Act, which provides for liability in respect of the death of a passenger imposed by the Convention, and which is in substantially similar terms to s 35 of the Act. Sackville J noted it seems to have its origins in the provisions of The Carriage by Air Act 1932 (UK). In a passage relied upon by the defendant, Sackville J stated at 345:

[91]

This is relied upon as authority that s 12, which is equivalent to s 35 of the Commonwealth Act is sourced in UK legislation which applied entitlements to sue under the Lord Campbell's Act to claims under the Warsaw Convention. It is submitted that this obiter reasoning of the Full Court of the Federal Court should be followed.
This passage, however, begs the question: in what sense do the provisions apply the entitlement of relatives to sue under the Lord Campbell's Act to claims under the Warsaw Convention? It could have been in a non-exhaustive sense, or even in a procedural sense. Accepting the passage is correct is not to suggest the UK provisions were confined to Lord Campbell's Act damages.
On this matter of actions under the Warsaw Convention, I note that Beaumont J examined cases which, as he said, have considered the operation of the Convention, "in the absence of any square authority on the meaning of the relevant provisions of Part IV". Those cases include Preston v Hunting Air Transport Ltd [1956] 1 QB 454, in which Ormerod J upheld a claim under Art 17 of the Warsaw Convention by two infant children of a widowed mother. Ormerod J rejected an argument that Art 17 permitted only financial loss to be taken into account as "damage sustained". He allowed a sum for loss of care and guidance, but, significantly, without reference to Lord Campbell's Act. Beaumont J referred to Zicherman v Korean Air Lines Co., McKenna, and cases where passengers sued for mental distress or nervous shock and the result turned on the phrases "accident" or "any other bodily injury" in Art 17 of the Warsaw Convention. These cases do not suggest that s 35 is confined to Lord Campbell's Act principles.
I return to the judgment of Sackville J; in the next paragraph, at 345, his Honour noted that the question of whether nervous shock claims by non-passengers were excluded raises difficult issues of construction. Sackville J addressed the question of whether the context in which ss 35(2) and 36 of the Commonwealth Act appear suggests that these provisions, having regard to their "natural" or "primary" meaning, extend to a non-passenger's claim for nervous shock. His Honour expressed again that having regard to the historical origins of s 35 of the Commonwealth Act, the section is concerned to provide for fatal accidents claims and claims by legal representatives of a deceased passenger. His Honour expressed the view at 348 that he did not think s 35(8) was intended to embrace nervous shock claims brought by non-passengers and, at page 349, he listed factors to support that conclusion.
I have already pointed out the judgment of the plurality in Parkes preferred the approach of Beaumont J to the judgment of Sackville J on the operation of s 35(2) and its sphere of exclusivity: [24]-[25]. Indeed, the plurality observed the decision of Magnus is of limited relevance because it was not directly concerned with the operation of s 35 as it did not relate to the death of a passenger: per Keifel CJ, Bell, Keane, and Edelman JJ at [29]. To the extent that the decision has relevance, doubt has been cast on the reasoning adopted by Sackville J. Relevantly, for our purposes, the plurality in Parkes noted that Sackville J rejected a submission that s 35(8) of the Commonwealth Act indicated s 35(2) encompassed psychiatric harm claims brought by non-passengers, and referred to one of the factors listed by Sackville J at 349, describing it as an important aspect of his Honour's reasoning, and summarised the factor:

[107]

Section 35, and Part IV more generally, is to be interpreted in its context as a provision within a statute which implements Australia's obligations under the Conventions, noting the Part creates a domestic aviation liability regime as an extension of the international regime.
The High Court decision of Parkes provides guidance on the Conventions in terms of their role and relationship with the Commonwealth Act, and the implications of this relationship in construing the terms of the Act.
The "cardinal purpose" of the Commonwealth Act in giving effect to the Conventions was to achieve uniformity in the law relating to liability of air carriers, so that in those areas with which the Convention deals, it contemplates a uniform code that excludes resort to domestic law: per Kiefel CJ, Bell, Keane, and Edelman JJ at [36], Gordon J at [54]. A construction of Part IV consistent with the purpose of the Convention is to be preferred: Parkes per Kiefel CJ, Bell, Keane, and Edelman JJ at [36].
Gordon J in Parkes explained at [59] that while the Conventions are intended to be, and are, construed as an international code for air carriage, the code is not absolute, and there are matters that are left to the domestic law of a signatory state. Gordon J stated at [61] that Art 24(2) of the Warsaw Convention provides that "the auxiliary questions about who has the right to bring suit (the identity of the plaintiffs) and what are their respective rights (the heads of damage for which they may sue and the legal basis on which they may sue for that damage) are left for determination by domestic law."
Gordon J addressed the construction of s 35(3)-(10) within the context of the Act as a whole, and her Honour's judgment is helpful in identifying the role of these subsections.
After referring to s 35(2) and Art 24(1), Gordon J noted at [66] that the balance of s 35, and also s 12 in Part II, a provision which is equivalent to s 35, then provide the answers to the auxiliary questions posed by Art 24(2). Further, Gordon J stated:

[111]

Having considered the judgments in Parkes, I summarise the key principles which apply to the construction of Part IV as follows:
- An interpretation of the provisions of the Commonwealth Act which is harmonious with the Conventions is to be preferred;
- Section 35(3)-(10) is not concerned with matters addressed by the Conventions, but rather with the auxiliary questions in Art 24(2); and
- These subsections should be given a construction which is harmonious with other substantially similar sections in the Commonwealth Act, notably s 12.
I observe that as the subsections are concerned with questions left to the domestic law, and they fall outside the international regime, an interpretation of these subsections is unlikely to result in disharmony with the Conventions. As for other substantially similar sections, such as s 12, I have not been taken to, or located, any cases which are concerned with damages for psychiatric harm or which would need to be taken into account to ensure harmony in the interpretation of s 35(3)-(10).
I mention here my consideration above at [110] of the judgment of Beaumont J in Magnus, and his Honour's examination of cases which considered the operation of Art 17 of the Warsaw Convention. As I noted, those cases do not suggest that Art 17 was treated as confined to Lord Campbell's Act principles. I also note the point made by the plurality in Parkes at [26], bearing on the interpretation of the Warsaw Convention and the law as it stood in 1929 regarding the duty of care owed by a carrier to a non-passenger.
Counsel for the defendant argued that the judgment of Gordon J in Parkes identifies the role of subs (3)-(10) as being the "definition of who may sue and what heads of damages". In essence, the argument is that these subsections are exhaustive and provide all the answers to the auxiliary questions. It may be argued that there is some support for this in [66] of Gordon J's judgment, which refers to the balance of ss 12 and 35 as "an answer to ... the balance of Art 24(2) ...". However, in my view, this would be reading too much into the judgment, particularly noting there are passages which suggest the subsections are not exhaustive in answering the auxiliary questions. At [97], Gordon J turned to the question of the manner in which Australia has implemented the second part of Art 24(2), stating:

[116]

In 1983, the House of Lords in McLoughlin v O'Brien [1982] UKHL 3; [1983] 1 AC 410 held that a plaintiff was entitled to recover damages for nervous shock from a defendant whose negligent driving had resulted in the death of the plaintiff's daughter and injuries to her other children, notwithstanding that the plaintiff had been two miles from the scene of the accident when it occurred and did not hear of the accident until about two hours later, or see its consequences until she went to the hospital.
Similarly, in Jaensch v Coffey in 1984, the High Court permitted recovery for nervous shock where the plaintiff was not present at the scene of the accident.
At the time of the enactment of the Commonwealth Bill some twenty-four years before McLoughlin and Jaensch v Coffey, the common law in England and Australia was not fully developed in relation to a duty of care to non-injured persons not to expose him or her to a risk of psychiatric injury. A family member who did not see or hear the accident, or its aftermath, at the scene of the collision would have had no right to claim damages. See Jaensch v Coffey at 418; Tame v New South Wales at [178]-[181]; Bourhill v Young [1942] UKHL 5; [1943] AC 92 at 111; Parkes per plurality judgment at [26].
In view of these aspects of the common law existing at the time the Commonwealth Bill was introduced, it is reasonable to expect that Parliament did not have in mind the potentiality of claims of nervous shock by non-passengers. It is not surprising, therefore, that the matter of whether damages may be awarded to non-passengers for psychiatric injury in respect of the death of a passenger did not feature in the parliamentary materials. This matter of context, however, does not indicate that Part IV should be interpreted as excluding damages for nervous shock.
Rather, whether Part IV should be so interpreted turns on the question of whether it can be gleaned from the text, with reference to the recognised indicia, that Parliament intended the courts would be free to award heads of damages recognised by the common law or State law. This would not be a surprising result given that legislation may be drafted with the intention that the text is to be regarded as ambulatory, thereby embracing future changes in the subject matter: Pearce, Statutory Interpretation in Australia 9th ed, [4.74].
This question will be resolved by the enquiry as to whether the terms of s 35 are definitive about the heads of damages that are available, and whether the terms of the section are confined by the application of Lord Campbell's Act principles.

[138]

There is no doubt that the Second Reading Speech should be regarded as an appropriate resource in ascertaining or confirming the meaning of s 35. An abbreviated form of this same passage was referred to by Gordon J in Parkes at [67], and numerous other references were made to the Speech in footnotes (see [51]-[52], [69], [87], [88], [79] and [90]).
It is interesting to note the reference in the Second Reading Speech to the common law in 1959 and that it was restricted to net pecuniary loss and while this "narrow approach" has been modified in various ways in different States, the problem was that there was no uniform approach to the question. It seems that the intention was to enlarge compensation beyond the narrow approach of the common law and to do so consistently.
Subclause (8), now s 35(8), is one example, and the Second Reading Speech makes it clear that a court, in assessing damages, is free to include compensation for matters not involving direct pecuniary loss, with examples given of loss of consortium or loss of a parent's care and guidance. It seems to me that these are but two examples of the freedom the courts have in awarding damages; not that they are being referred to as the only examples.
I cannot see in the Second Reading Speech an intention to transplant a Lord Campbell's Act model and the principles that underpin it into the Commonwealth Act, or, more specifically, to infer an intention to confine damages arising from the death of a passenger to a Lord Campbell's Act model.
An intention to allow for a more generous assessment than would have been allowed at common law can be inferred. Now that the common law has developed in other respects, the question is whether an intention to confine an assessment to the more restrictive statutory provisions can be detected.
I do not consider that such an intention can be detected. An intention that the scheme should be more generous than the common law of the day can be inferred, but not necessarily to fix the limits of that generosity.

[139]

The defendant relied upon the Senate debate of the Commonwealth Bill, which may be used to assist in ascertaining the meaning of a provision pursuant to s 15AB of the Acts Interpretation Act (Cth).
Clause 12 of the Bill (now s 35) was debated at some length: Australia, Senate, Parliamentary Debates (Hansard) 17 March 1959 at 411-420.
I accept that references to Lord Campbell's Act feature heavily in the debate, and that there is extensive consideration of cl 12 with reference to Lord Campbell's Act. As submitted by the defendant, Senator Wright's contribution to the debate was particularly comprehensive.
Subclause (7) (now s 35(7)) attracted considerable attention. Senator Wright expressed concern with the wording of the subclause, and that it may lead to an interpretation that "prospective profits after death cannot be recovered", noting at p 416 that he did not think the words appeared in "other fatal accidents legislation". As for the latter phrase, it is self-evident that the words uttered during parliamentary debate are not to be scrutinised too closely, as they are not the words in a statute. The interpretation that Senator Wright was concerned about would obviously be a significant matter limiting an award of damages to the extent of falling far short of an award under Lord Campbell's Act.
The consideration given to Lord Campbell's Act during the debate does not necessarily imply that it was the intention to import a Lord Campbell's Act scheme. It is just as consistent with a concern on behalf of Senators, such as Senator Wright, to ensure the provisions would operate in a way that was no less generous than fatal accidents legislation (as the high-water mark of the day for compensation in cases of death) and to ensure the provisions were drafted to avoid unintended pitfalls.
This concern, rather than an intention to import a Lord Campbell's Act scheme, can be seen at 418 when Senator Wright considered subcl (8) and regarded its terms as open-ended and as leaving an award for damages to the judge's discretion. Senator Wright noted the case of Preston (1956) 1 QB 454 when a judge, in construing the Warsaw Convention, allowed an amount in addition to financial loss for children who had lost their father. Senator Wright noted that in Scots law, as distinct from English law, the courts are "entitled to give the dependants, not merely the economic value of the deceased's life, but a solatium, or something to assuage injured feelings."
As highlighted by Senator Wright at page 418:

[145]

Aspects of s 5 of the Fatal Accidents Act can be seen in s 35(6) and (9). It is noted that in s 35(3), the only parties that may sue are members of the deceased passenger's family.
The "only one action to lie" rule in s 6 of the Fatal Accidents Act can be seen in s 35(6) of the Commonwealth Act.
Section 8 of the Fatal Accidents Act provides that where an executor or administrator does not bring the action, the person for whose benefit such an action exists may bring the action. There is a similar provision in subs 35(6), noting, though, it modifies the default position; that the action is to be brought by the executor or administrator.
The allowance for recovery of funeral, hospital, and medical expenses prescribed by s 10(2) of the Fatal Accidents Act has a like provision in s 35(4) and (7) of the Commonwealth Act.
The subject matter of s 10(1) of the Fatal Accidents Act - namely, that proceeds of insurance policies, superannuation, and other such amounts shall not be taken into account for the purpose of assessing damages - has a like provision in s 38 of the Commonwealth Act.
This comparison of the legislation reveals that some of the subsections in the Commonwealth Act which are similar to the Lord Campbell's Act are procedural. While s 35 identifies who may sue, it says very little about heads of damages, apart from some peripheral issues, namely loss of earnings up to the date of death, the reasonable expenses of the funeral, medical and hospital expenses, and clarity in relation to what is not to be taken into account.
It is interesting to observe that subs (8), which expressly states that an award is not limited to financial loss, does not have an analogue in the fatal accidents legislation. There are other dissimilarities in that subs (7) does not have an equivalent provision in Lord Campbell's Act. As noted by the Associate Judge in his judgment at [12], the Commonwealth legislation takes up aspects deriving from Lord Campbell's Act, but it does not mirror those provisions. His Honour notes that, unlike Lord Campbell's Act type legislation, which does not extinguish other rights, Part IV of the Commonwealth Act excludes other rights of action.
Subsection (5) of the Tasmanian Fatal Accidents Act provides that, "in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death". Subsections (9) and (10) are similar in some respects but do not include the phrase which includes the words "damages ... proportioned to the injury".
It is important to bear in mind that the argument for the defendant is not merely that key provisions of Lord Campbell's Act are reflected in Part IV, and thereby those aspects of the Lord Campbell's model are imported. The argument also involves accepting the proposition that the inclusion of similar provisions provides a clear indication that the principles underpinning the Act as a whole and its legislative purpose are carried across to the Commonwealth Act. Consequently, the damages for which s 35(3)-(10) provide are in the nature of, and are confined to, Lord Campbell's Act damages. It is thus argued that Parliament's intention was to import Lord Campbell's Act principles for awarding damages on death and, specifically, to import the principles limiting the damages that can be awarded.
This argument is central to the defendant's position and should be subjected to scrutiny. For a start, the Lord Campbell's Act "principles" are tied to the Lord Campbell's Act as a scheme or as a whole, and not merely to those particular provisions which have an analogue in the Commonwealth Act. Furthermore, it can be seen from the authorities that a phrase in Lord Campbell's Act which has significance to the development of key principles is not replicated in the Commonwealth Act.
The principles regarding the basis of awarding damages and, in particular, the principle that recovery is limited to net pecuniary loss, are tied to the words "such damages as they may think proportioned to the injury resulting from such death to the parties" in s 2 of Lord Campbell's Act (s 5 of the Tasmanian Fatal Accidents Act). This can be seen from the following cases.
In Blake v Midland Railway Company [1852] EngR 10; (1852) 18 QB 93, Coleridge J at 41 delivered the judgment of the Court and the phrase in s 2 was central to the principles regarding damages and whether solatium may be included in the damages award.
In Franklin v The South Eastern Railway Company [1858] EngR 669; (1858) 157 ER 448, Pollock CB at 449 referred to the phrase in s 2 in terms that linked it to the development of principle that damages are "not to be given as a solatium, but are to be given in reference to a pecuniary loss".
In Baker v Dalgleish Steam Shipping Company (1922) 1 KB 361, Scrutten LJ stated at p 371:

[168]

The plaintiff contends this subsection "clearly states that damage sustained by reason of the death of a passenger is not restricted to financial or fatal accidents legislation type damages." Further, it is argued that this subsection makes it clear, together with other indicia, that there is a right to damages for mental harm.
The defendant argues that a premise of the subsection is that, if not for subs (8), damages would be limited to financial loss resulting from the death of a passenger. It is thus said to be an indication that Parliament was intending to provide only for fatal accidents compensation. Further, there is no suggestion that subs (8) confers a separate head of damage of psychiatric injury or loss of future income.
The defendant argued the subsection permits what some Fatal Accident Acts do, which is to provide for damages for loss of consortium or, in the case of an infant, loss of a parent's care and guidance. These losses are not direct pecuniary losses. The arguments for the defendant referred to the Second Reading Speech on subs (8) and noted that each of the examples provided by the Minister flows inexorably from a Fatal Accidents type claim. By contrast, subs (8) is not concerned with saying there are heads of damage for potential future financial loss, such as loss of future earnings, which may be compensated. It is argued by the defendant that subs (8) does not assist the plaintiffs with their claim for lost future earnings or medical costs, as it is concerned only with specifying that that assessment is not limited to financial loss.
Subsection (8), at the very least, reveals the Commonwealth legislature intended to depart from Lord Campbell's Act in its usual form. It is likely that Parliament would have been aware of and had in mind the statutory exceptions to Lord Campbell's Act. If it was intended that they be the only exceptions, however, then it would be expected that the subsection would have been specific in its terms. Subsection (8) conveys that non-financial loss could be awarded, and the courts are free to set the limits of that award. While the words of the subsection, namely that in awarding damages the court is "not limited to financial loss", do not provide for future economic loss arising from personal injury, it may be argued that such words are unnecessary and, moreover, the words are wide enough to convey that general damages may be awarded.
In the Court of Appeal decision of Parkes, Basten JA noted at [111] that the terms of s 35(8) were "equally consistent" with an acceptance that general damages may be awarded:

[170]

In the task of construing the statute and ascertaining the meaning that Parliament is taken to have intended, courts have regard to the consequences of giving a particular meaning to an Act. If the result seems capricious, irrational, or unlikely, given what can be detected about the legislative intent, it may be a ground to conclude the legislature could not have intended such an operation, and that an alternative interpretation must be preferred. See Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26, 147 CLR 297 per Mason and Wilson JJ at 320-321; D Pearce Statutory Interpretation in Australia, 9th ed, 2.57.
In their submissions, the plaintiffs and the defendant point to anomalies said to result from the competing interpretations.
The defendant argues that if s 35 was intended to confer a right to recover damages for personal injury caused by death, the limitation to family members as the only parties who may sue pursuant to Part IV, s 35(3), would be irrational and arbitrary. Counsel asked, rhetorically, if the section provides for recovery for personal injury, why a family member would be entitled to recover while a first responder attending the scene of a horrific air crash and experiencing significant trauma would not. It was said that, on the other hand, the right to claim damages under Part IV, limited as it is to family members, reflects an intention to confer a right to claim damages for loss of dependency.
It may be argued in reply that the right to claim damages, limited as it is to family members, simply reflects an intention to confer a right to recover damages on family members, rather than indicating that the only focus was loss of dependency.
A consequence said to arise from the plaintiffs' construction is that the court's task under s 35(9) of dividing the amount recovered in an action between all persons entitled, would be much more difficult if the task included awarding damages for family members who had suffered psychiatric harm. Given the quantum of recovery by each person depends on the claims of other persons, the inclusion of persons recovering damages for personal injury would be likely to produce arbitrary and unsatisfactory results, and the provision in the Act for division of the amount in such circumstances is not sensible.
It can be accepted that extending the parameters of recovery to include persons recovering damages for personal injury would, in some cases, be a more complex task than otherwise would be the case. However, courts are well equipped to undertake this complex task, and judges may provide juries, where the action is tried with a jury, with the necessary directions as they would in any complex civil case.
As for the argument that the plaintiffs' interpretation is likely to produce arbitrary and unsatisfactory results, there is an obvious answer. The court has a discretion under s 35(9), enabling it to divide the amount recovered in a way that avoids an arbitrary or unsatisfactory result. It is perhaps worth noting, too, that during the proceedings, the court may make orders, presumably of a procedural nature, that are just and equitable in view of the capped liability of the carrier, pursuant to s 35(9), and that this provision may assist the court to facilitate a just outcome.
Another anomaly said to arise from the plaintiffs' argument involves an inconsistency between cases where the passenger dies and where the passenger suffers "bodily injury" giving rise to liability under s 28 of the Act. It is pointed out by counsel for the defendant that a passenger who is injured has no right to claim damages under the Commonwealth Act for pure mental harm, only mental harm as sequelae to a physical injury. Further, given the authority of Magnus, there is no liability under the Act for mental harm caused to a relative of an injured passenger by reason of the injury of the passenger. Also, by reason of the High Court decision of Parkes, there is no liability to the relatives of an injured passenger for mental harm outside the Act or the Conventions.
The argument is that in comparing cases involving the death of a passenger, the situation would be quite different if liability for mental harm to family members was available under the Act. It should be noted, however, that the contrast relies on the correctness of Magnus, which is in doubt now, after Parkes. Comparisons of this kind are only useful if the positions of the comparators are firmly settled. Here, it may be premature to draw too much from a comparison of the kind made when the implications of Parkes may not yet be fully recognised in the development of the law.
The plaintiff refers to a consequence said to be arbitrary, which is the converse of the above proposition. The plaintiff adopts what was pointed out by Associate Justice Holt in his judgment at [13]:

[174]

The terms of s 35, the text of each subsection viewed individually, and the section viewed as a coherent whole do not suggest that s 35 operates to exclude the damages claimed in this case for psychiatric harm. The words used are unambiguous and their plain meaning is wide enough to encompass heads of damages claimed by non-passengers for psychiatric harm. In taking a literal view of the words and considering their effect and operation, I find there is no obstacle to those damages being compensable under the section. There are no limiting words in the section that, according to their ordinary and natural meaning, would exclude any of the heads of damages claimed in this case, and there is nothing in the related provisions, such as ss 37, 38, or Part IV, which suggests the section, considered in its broader context, should not have its literal and natural meaning, and be given that effect.
Read in its context, s 35(8) acknowledges that damages for pecuniary loss are compensable, and the language of the section does not exclude damages for pecuniary loss as a result of psychiatric injury or nervous shock. The subsection, in its terms, would allow the court to award a sum as solatium, and the terms are wide enough to allow an award for general damages with respect to psychiatric injury.
This is not a case where ambiguity is said to reside in certain words or phrases. Rather, the argument is that there are clear signs the statutory purpose was that the provision should cover the field and exclude heads of damages other than damages recognised as compensable under Lord Campbell's Act.
The simple point is that if Parliament intended the section to cover the field and to be exhaustive, and thus to confine the heads of damages that may be awarded, then it is right to expect that Parliament would have said so in express and clear terms. That express statement is not found in the legislation and, moreover, the language used defies that suggestion as it is non-exhaustive and is inclusive in its terms. As highlighted earlier, examples of this language can be seen in s 35(7), and particularly subs (8). Section 35(8) opens the gate to non-financial loss but does not define the bounds of that non-financial loss. It can be seen that Parliament trusts the courts with that "freedom" and is unconcerned to fix the parameters of that freedom. As discussed, provision is made for discrete matters, but there are no prescriptive statements of entitlement of a sweeping kind defining and prescribing the heads of damages that may be awarded.
The defendant maintains that, nonetheless, the implication is strong given the similarities of the provision with the Lord Campbell's Act model. There are similarities with the model, and I accept unreservedly that it has been demonstrated the legislature borrowed from it. However, as discussed in detail, there are dissimilarities, as well as similarities. It could not be said that the model has been transplanted into the Commonwealth Act. The borrowing of some terms of the model is consistent with an intention to define the plaintiffs, who may sue; to bring consistency; and to regulate some matters in terms of matters of procedure, and some matters concerning the assessment of damages.
The argument for the defendant requires an implication that by borrowing from Lord Campbell's Act, the principles that have developed in connection with it, and which confine the damages, are carried across. I have described this as a long bow and, having considered all of the indicia relevant to ascertaining the meaning of legislation, I remain of that view. The principles confining compensation under Lord Campbell's Act have arisen from a consideration of Lord Campbell's Act as a whole, and its contrast with common law damages lies in the language of the Act as a whole. Furthermore, the development of principle is anchored in particular words which are not replicated in the Commonwealth Act. This is not a case where a term of art, which has acquired a particular meaning, has been used by Parliament.
The more obvious implication to be drawn in my view is that Parliament intended to borrow from the Lord Campbell's Act model in some respects, and to leave the rest to the courts to apply domestic law, the common law, and statutory provisions which govern awards of damages. That is consistent with the language of the section, the trust reposed in the courts which can be detected in the statutory text, and the broader legislative scheme, specifically Art 24(2) of the Convention, which meant that auxiliary questions unanswered in the Commonwealth Act would be answered by the domestic law.
The defendant's argument relies on the parliamentary materials. It is argued that these materials reflect the heavy influence of Lord Campbell's Act and that s 35(8), which is in different terms, can be seen to have been drafted with Lord Campbell's Act in mind. The Second Reading Speech and the Senate debate demonstrate that Lord Campbell's Act had considerable influence, and the focus of concern was to provide for family members as dependents. While this concern is a relevant consideration, it is not determinative. It is the text of the statute which is to be applied, not the prevailing expectation at the time the statute was enacted about the kind of case in which it might be invoked.
Further, it must be said that I do not detect from the extrinsic materials an intention to transplant the entire model or the principles that have developed with respect to it. All that is said is consistent with the competing literal interpretation that the intention was to borrow from the model in some respects. Furthermore, it is not shown that, in some other way, the materials suggest Part IV was intended to cover the field. In fact, the references to s 35(8) in the Speech and debate suggest the contrary. The inference may be drawn that the courts were not to be restrained by statute in terms of allowing an award for non-pecuniary loss, and that the drafters positively intended not to impinge on that judicial task.
As discussed, the development of the common law at the time of enactment suggests that Parliament would not have had in mind the potentiality of mental harm to non-passengers and a duty of care by carriers to avoid that harm. However, that does not count against the literal interpretation. The question is not what the drafters of the legislation subjectively had in mind, but what the legislature is "taken to have had intended". Notwithstanding the focus and concerns of the day, if the meaning of the words chosen by Parliament have a wider application beyond that focus and concerns, then a court may be bound to give effect to that meaning.
In my view, the argument of the defendant relies on implication and, for it to succeed, an assumption about the statutory purpose, unsupported by the text and context, including the extrinsic materials, must prevail.
A literal interpretation does not create any tension with the overarching purpose of s 35 to respond to the auxiliary questions. It is plain from the language of the statute that the drafters did not set out to do this in exhaustive terms and I cannot detect any intention to cover the field.
The text, in my view, is the surest guide to the meaning of the section and principles governing the Lord Campbell's Act, not appearing in the text, should not be imported. It should not be inferred that the section covers the field and that it was intended that any heads of damages, not covered by Lord Campbell's Act, should be excluded. The heads of damages claimed by the plaintiffs are compensable.

At a glance

Court

Decision date

Before

Source

Judgment (176 paragraphs)

Jones v Airlines of Tasmania Pty Ltd [2023] TASSC 36 (5 October 2023)

Parties

Legislation Cited (1)

Cases Cited (10)