//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2018] VSC 472
Supreme Court of Victoria
2018-08-24
KEOGH J
Original judgment source is linked above.
AVIATION - Carriage by air - Claim under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) - Plaintiff injured on international flight - Whether pt VBA of the Wrongs Act 1958 (Vic) applies - Operation of s 79(1) Judiciary Act 1903 (Cth) - Whether pt VBA is applicable to the plaintiff's case - Whether Commonwealth law "otherwise provides" - ; applied - ; (1996) and (15 May 2015) distinguished.
1 The plaintiff alleges she fell and injured her right ankle while travelling as a passenger on an Emirates flight from Melbourne to Dubai. She brings this proceeding claiming damages from the defendant pursuant to the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ('Carriers' Act'). The defendant denies the plaintiff's claim and, in the alternative, alleges the plaintiff is not entitled to damages for non-economic loss unless she has suffered a significant injury within the meaning of pt VBA of the Wrongs Act 1958 (Vic) ('Wrongs Act').
2 The proceeding was listed before me for determination of the preliminary question: Does pt VBA of the Wrongs Act apply to the plaintiff's claim?
3 This Court is exercising federal jurisdiction when it determines a claim under the Carriers' Act. Where a state Court exercises federal jurisdiction, s 79 of the Judiciary Act 1903 (Cth) ('Judiciary Act') applies and results, if the overriding requirements of the section are satisfied, in the laws of the state governing the action. The defendant argued that it is by operation of s 79 of the Judiciary Act that pt VBA of the Wrongs Act applies to the plaintiff's claim. It is necessary therefore to consider whether the overriding requirements of s 79 have been met.
4 In March 2015 the defendant, an international carrier, carried the plaintiff as a passenger on an Emirates flight from Melbourne to Dubai.
5 The plaintiff alleges that in the course of the flight, while making her way to the toilet facilities in the aircraft cabin, she fell and sustained injury to her right ankle, which necessitated surgical open reduction and internal fixation ('the injury').
6 The plaintiff commenced this proceeding in February 2017. In an amended statement of claim filed in August of that year she articulated her cause of action in the following terms:
7 In its amended defence filed in May of this year the defendant pleads:
8 In her amended reply to the amended defence, the plaintiff denies the provisions of pt VBA of the Wrongs Act have application to her cause of action against the defendant.
9 Part 1A of the Carriers' Act deals with air carriage to which the Montreal Convention[1] applies. Sections 9B and 9E of the Act fall within that part:
9B The 1999 Montreal Convention to have force of law
Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage.
9E Liability in respect of injury
Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.
10 The Montreal Convention is set out in Schedule 1A of the Carriers' Act. Article 17(1) deals with death and injury to passengers:
The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
11 Compensation for injury is governed by Article 21:
(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or
(b) such damage was solely due to the negligence or other wrongful act or omission of a third party.
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
13 Part VBA of the Wrongs Act deals with thresholds in relation to recovery of damages for non-economic loss. Definitions contained in s 28LB include:
"claimant" means a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person;
"fault" includes act or omission;
"non-economic loss" means any one or more of the following-
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
"respondent", in relation to a claim, means the person against whom the claim is made;
"threshold level" means-
(a) a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct;
(b) a claim to which Part 3, 6 or 10 of the Transport Accident Act 1986 applies;
(c) a claim to which Part IV of the Accident Compensation Act 1985 or Part 5 of the Workplace Injury Rehabilitation and Compensation Act 2013 applies;
(d) a claim in respect of an injury or death which entitles, or may entitle, a worker, or a dependant of a worker, within the meaning of the Workers Compensation Act 1958 to compensation under that Act;
(e) a claim in respect of an injury that is an asbestos-related condition.
The regulations do not provide for any exclusion of claims relevant to this proceeding.
15 Section 28LD provides that the provisions of pt VBA are substantive law. Section 28LE reads:
A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
16 Part VBA provides the following avenues for satisfying the significant injury threshold:
(a) At the request of a claimant, a respondent may waive the requirement for an assessment of the degree of impairment;[3]
(b) Having been served by a claimant with a copy of a certificate of assessment, a respondent may (i) accept the assessment,[4] or (ii) fail to respond within the prescribed time, in which case acceptance of the assessment is deemed;[5]
(c) Having been served by a claimant with a certificate of assessment, a respondent refers a medical question in relation to the assessment to a medical panel,[6] and the panel determines that impairment from an injury satisfies the threshold level;[7] or
(d) In a case of imminent death of a claimant, or where a claimant has died from a cause other than the injury, a court makes a determination of significant injury.[8]
17 The defendant submitted, first, that the Montreal Convention operates as a code which creates a cause of action for passengers in the event of injury occurring whilst on board an aircraft, and operates to exclude any concurrent remedy under the general law.[9] Second, the Montreal Convention does not address all questions that may arise between a carrier and a passenger, such as who may bring a suit and what they may be compensated for. The defendant relied on the decision of Scalia J in Zicherman v Korean Airlines Co Ltd,[10] in which his Honour said:
The most natural reading of this Article is that, in an action brought under Article 17, the law of the Convention does not affect the substantive questions of who may bring suit 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.[11]
18 Third, the effect of s 79 of the Judiciary Act was to make binding on the Court in this proceeding pt VBA of the Wrongs Act, save to the extent that it is inconsistent with the law of the Commonwealth.[12] However, no question of inconsistency arises. There is no provision of the Montreal Convention or the Carriers' Act which addresses the questions of assessment of damages or determines who may bring a claim. The defendant relied on the following observation of Scalia J in Zicherman:
The post-ratification conduct of the contracting parties displays the same understanding that the damages recoverable - so long as they consist of compensation for harm incurred (dommage survenu) - are to be determined by domestic law. Some countries, including England, Germany and the Netherlands, have adopted domestic legislation to govern the types of damages recoverable in a Convention case ... Canada has adopted legislation setting forth who may bring suit under Article 24(2), but has left the question as to what types of damage are recoverable to provincial law ... Finally, the expert commentators are virtually unanimous that the type of harm compensable is to be determined by domestic law.[13]
The defendant referred to the decision of Schmidt J of the New South Wales Supreme Court in Casey v Pell-Air Aviation Pty Ltd,[14] in which her Honour assessed a dependency claim brought under the Carriers' Act in accordance with the Civil Liability Act 2002 (NSW) ('Civil Liability Act'), an approach which was confirmed on appeal in that case by the Court of Appeal.
19 Fourth, in order to be considered inconsistent with the Carriers' Act and therefore 'invalid to the extent of that inconsistency', the Commonwealth legislation must evince an intention by Parliament to cover the field.[15] In the present case the Carriers' Act merely enshrines the code for liability as contained in the Montreal Convention. Neither the Carriers' Act nor the Montreal Convention addresses who may bring a claim and how damages may be assessed. That function is left to individual jurisdictions. Accordingly, there is no inconsistency with the provisions in the Wrongs Act that seek to filter out small claims by placing a jurisdictional limit to the commencement of any such claim.
20 The plaintiff submitted, first, that pursuant to s 79(1) of the Judiciary Act, the substantive law of Victoria will apply to the plaintiff's case unless it is inconsistent with the Carriers' Act.[16] The Carriers' Act, which implements the Montreal Convention, has the effect of giving the plaintiff a cause of action to recover damages from the defendant in respect of the injury. Part VBA of the Wrongs Act is inconsistent with the Carriers' Act and the Montreal Convention because it purports to cut down the plaintiff's cause of action in a manner not contemplated in the Carriers' Act or the Montreal Convention.
21 Second, the plaintiff submitted that liability under the Carriers' Act is strict, as fault is not an ingredient of the claim. The restrictions on the recovery of damages imposed by pt VBA of the Wrongs Act relate only to recovery of damages in respect of an injury caused by the fault of the defendant. Accordingly, pt VBA and its provisions are inapplicable to the plaintiff's claim.
22 The plaintiff brings a claim for damages for her injury against the defendant under federal law, relying on pt 1A of the Carriers' Act. The defendant alleges a law of Victoria, pt VBA of the Wrongs Act, applies to the plaintiff's claim.
23 To make out this allegation the defendant relies on the operation of s 79 of the Judiciary Act:
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
The operation of s 79 was considered by the High Court in Agtrack (NT) Pty Limited v Hatfield.[17] That case involved a claim for damages by Ms Hatfield under pt IV of the Carriers' Act in respect of the death of her husband in a small plane crash which occurred in the Northern Territory. Ms Hatfield brought her action in the Supreme Court of Victoria. In Agtrack, the majority said:
These two qualifications to the operation of s 79 are relevant to the question I am to determine. Both must be satisfied for pt VBA of the Wrongs Act to apply to the plaintiff's case.
Is pt VBA applicable to the plaintiff's case?
24 To succeed in her claim under the Carriers' Act, the plaintiff must establish that she was a passenger on board the aircraft operated by the defendant when she sustained bodily injury caused by an accident. In the proceeding, the plaintiff will seek to recover damages for the injury, including for pain and suffering and loss of enjoyment of life. It was not in dispute that in the proceeding the plaintiff is seeking to recover from the defendant damages which come within the definition of non-economic loss in pt VBA of the Wrongs Act.
25 The defendant does not plead the particular sections of pt VBA on which it relies, however, paragraph 12 of the amended defence must rely principally on s 28LE to restrict the right of the plaintiff to recover damages for non-economic loss. The difficulty for the defendant is that s 28LE relates to claims for non-economic loss damages made "in any proceeding... in respect of an injury to a person caused by the fault of another person...".[19] In this proceeding the plaintiff makes no allegation that the injury was caused by the fault of the defendant. Fault is not an element of the cause of action the plaintiff is pursuing and accordingly, s 28LE is not applicable to the plaintiff's case.
26 I come to the same conclusion in relation to the whole of pt VBA of the Wrongs Act. Pursuant to s 28LC(1), pt VBA "applies to claims for the recovery of damages for non-economic loss". Subsection (4) of s 28LC provides that pt VBA extends to "a claim ... founded on ... any other cause of action". Claim has a corresponding meaning to the definition of claimant.[20] Thus, a claim is "a claim for damages that relate to an injury to a person caused by the fault of another person". Because fault is not an element of her cause of action, the plaintiff is not a "claimant", and she has not made a "claim" for the purposes of pt VBA of the Wrongs Act.
27 This construction is consistent with the context provided by the balance of pt VBA. The purpose of pt VBA is to extinguish smaller or more minor claims for non-economic loss damages by imposing the significant injury threshold, so that a claimant who does not satisfy that threshold is not entitled to recover damages for non-economic loss. The operative provision of pt VBA is s 28LE which, as I have already stated, relates only to the recovery of damages caused by the fault of another. Part VBA establishes the procedures by which a person seeking to recover damages for non-economic loss can satisfy the threshold requirement. Each avenue by which a person might satisfy the significant injury threshold requirement, and thus re-enliven an entitlement to recover damages for non-economic loss, applies to a claimant, that is, a person claiming damages for injury caused by the fault of another. There is no avenue for a person other than a claimant to engage the procedures in pt VBA and to satisfy the significant injury threshold.
28 I conclude that part VBA of the Wrongs Act is not applicable to the plaintiff's case.
Does pt 1A of the Carriers' Act "otherwise provide" so as to render invalid pt VBA of the Wrongs Act?
29 Although it is not necessary, I will consider this question because it is the question to which most of the argument advanced by the parties was addressed.
30 The question of whether a law of the Commonwealth "otherwise provides" was considered by the High Court in MacLeod v Australian Investments and Securities Commission,[21] in which the majority said:
That could only be so if it were not "otherwise provided" by the laws of the Commonwealth or the Constitution. What is involved in that latter phrase in s 79 was considered in Northern Territory v GPAO. The relevant law of the Commonwealth which may have made other provision within the meaning of s 79 was the ASC Act. This provided for the creation, functions and powers of the ASC. If the Justices Act would have added to or derogated from those powers and functions created and conferred by the law of the Commonwealth, then it would not have been "picked up" by s 79 because the Commonwealth law would have otherwise provided. [22]
31 The defendant relies on Article 29 of the Montreal Convention, and the decision in Zicherman,[23] to argue that the convention leaves to domestic law the questions of who may bring suit and what they may be compensated for. It is important, when considering this argument, to return to the defence pleaded and the preliminary question to be determined. The plaintiff's entitlement to bring her claim for damages for the injury is not in issue.
32 The defendant's argument focussed on the Montreal Convention. However, the starting point for consideration of the questions posed by s 79 of the Judiciary Act is the operation of both the Carriers' Act and the Wrongs Act. What is in issue is the applicability of s 28LE and pt VBA of the Wrongs Act to the plaintiff's claim. The effect of s 28LE, if it applied to the plaintiff's claim, would be to extinguish her cause of action and claim for damages in part, subject to her satisfying one of the gateways provided by pt VBA.
33 Part 1A of the Carriers' Act gives the Montreal Convention the force of law. Article 17(1) of the Montreal Convention creates a liability imposed on a carrier, "for damage sustained in case of death or bodily injury of a passenger". The effect of the Carriers' Act and the Montreal Convention is to give the plaintiff a right, which corresponds to the liability imposed on the defendant, to recover damages for the bodily injury she sustained. That includes the right to damages for pain and suffering and loss of enjoyment of life. The liability of the defendant, and the corresponding right of the plaintiff, is expressed in s 9E of the Carriers' Act to be in substitution for any other civil liability or right.
34 The effect of s 28LE and pt VBA of the Wrongs Act, if applied to the plaintiff's case, would be to derogate from the right given to her by the Carriers' Act by extinguishing or restricting her right to recover damages to which she would otherwise have an entitlement. In those circumstances, pt VBA will not be "picked up" by s 79 of the Judiciary Act because the Commonwealth law would otherwise have provided. For this reason, pt VBA is not applicable to the plaintiff's case.
35 The decision in Zicherman[24] is distinguishable. The issues raised by s 79 of the Judiciary Act, which determine the applicability of pt VBA of the Wrongs Act, did not arise in Zicherman.[25] For two reasons, the decision in Casey[26] does not assist. First, in that case the parties agreed damages were to be assessed in accordance with the provisions of the Civil Liability Act[27] and as a result the Court was not required to determine whether pt 2 of that Act was "picked up" by s 79 of the Judiciary Act. Second, the provisions of the Civil Liability Act are materially different to those of pt VBA of the Wrongs Act. For example, s 11A(2) of the Civil Liability Act provides that pt 2 of the Act applies "whether the claim for damages is brought in tort, in contract, under statute, or otherwise".
36 To apply to the plaintiff's case, pt VBA of the Wrongs Act must satisfy both the overriding requirements of s 79 of the Judiciary Act. I have concluded that it does not satisfy either. First, pt VBA is not applicable to the plaintiff's case because it deals with a different subject matter. Second, the effect of pt VBA, if it applied, would be to derogate from the rights provided by the Carriers' Act. The Carriers Act provided otherwise, and for that reason pt VBA of the Wrongs Act will not apply to the plaintiff's case. Accordingly, the preliminary question "does pt VBA of the Wrongs Act apply to the plaintiff's claim" is answered no. I will hear from the parties as to any consequential orders.
[1] The Convention for the Unification of Certain Rules for International Carriage by air, done at Montreal on 28 May 1999 ('the Montreal Convention').
[2] Wrongs Act 1958 (Vic) s 28LF.
[4] Ibid s 28LW(2)(a).
[5] Ibid s 28LW(4).
[6] Ibid s 28LW(2)(b); s 28LWE.
[7] Ibid s 28LZG(10).
[9] Sidhu v British Airways P/C [1996] UKHL 5; [1997] 1 AC 430, 447; United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24 (5 March 2012) [96].
[10] [1996] USSC 6; 516 US 217 (1996) ('Zicherman'); in Zicherman, Scalia J was concerned with construction of the Warsaw Convention, the original precursor to the Montreal Convention. Differences in the text of the two conventions are not presently material.
[12] Australian Constitution s 109.
[13] Zicherman [1996] USSC 6; 516 US 217, 227 (1996).
[14] [2015] NSWSC 566 (15 May 2015) ('Casey').
[15] Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472, 483 (Dixon J) ('McLean').
[16] Australian Constitution s 109.
[17] [2005] HCA 38; (2005) 223 CLR 251 ('Agtrack').
[18] Ibid [7] - [11], citing John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 (citations omitted).
[22] Ibid [22] (citations omitted); see also Agtrack [2005] HCA 38; (2005) 223 CLR 251 [60].
[23] [1996] USSC 6; 516 US 217 (1996).
[26] Casey [2015] NSWSC 566 (15 May 2015).
Di Falco
Emirates [2018] VSC 472
(2005) 223 CLR 251
(1930) 43 CLR 472
(2000) 203 CLR 503