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PelAir, responsibility and the ‘Law’

PelAir, responsibility and the ‘Law’ is still with us. The recent case against Parkes Shire and South West Helicopters is instructive.

This accident occurred in February 2006, with a final report filed by ATSB in August 2007

Particularly as to the situation of people travelling in aircraft in the work-place. Flight nurses spring to mind.

327. then pointed out (at 485):
“From a contractual perspective, the non-passenger is ordinarily in a very different position from that of a passenger. The non-passenger does not receive a ticket and thus does not receive direct notice of the limitations on the carrier’s liability imposed by the Warsaw Convention. The non-passenger does not ordinarily have the same opportunity as the passenger to insure against the relevant risk. In Sidhu, Lord Hope stressed the importance of the restrictions on the “great principle” of freedom of contract as an element in the reasoning supporting the conclusion that the Warsaw Convention is, in effect, a code governing the carrier’s liability to a passenger injured or killed in the course of aircraft operations. That consideration does not apply in the case of non-derivative claims by non-passengers.
It is of course true, from a carrier’s perspective that any exposure to unlimited liability increases the unpredictable risks associated with the conduct of an airline. Yet, on any view, some risks are outside the scope of the Warsaw Convention… the question is where the line should be drawn. In my opinion is not necessary to resolve that question in the present case, which ultimately turns on the construction of Part IV of the CA Act.”
The authorities to which counsel for South West referred all involved factual scenarios which were quite different from the circumstances of the present case. A number of them involved claims by passengers as opposed to non-passengers. None of them involved any consideration at all of the decision in Magnus.
In my view, the judgment of Sackville J in Magnus does not, as was suggested by counsel for South West, reflect an error in approach. His Honour expressly acknowledged the view, expressed by the House of Lords, that the Warsaw Convention was intended to be a uniform code which afforded certainty to carriers. His Honour also properly pointed out that the issue in that case was one which fell to be resolved according to construction of the CAA. I am not persuaded that his Honour’s conclusion was wrong. In particular, I am not satisfied that the authorities to which I was referred support
the dissenting judgment of Beaumont J. None of those authorities required consideration of this specific question.
Further, the additional reasoning adopted by Hill J in Magnus is in my view persuasive. His Honour acknowledged the weight of authority in support of the proposition that the Convention was intended to be a complete code with respect to passengers. However he cited (at 461) a number of practical examples of situations in which claims might be made against a carrier arising from circumstances falling outside the terms of any Convention. He concluded that such examples demonstrated that at least to the extent of those claims, it could not be said that the Conventions were intended to be a complete code in respect of non-passengers.

  1. His Honour went on to say that although it may be possible to conclude that the Conventions and the CAA did constitute a Code in relation to claims by non-passengers in respect of the death or bodily injury of a passenger, the CAA was concerned with questions of contractual limitation of liability. A non-passenger receives no notice of such limitation.
  1. For all of these reasons the decision of the majority in Magnus should be followed. Even if the CAA was otherwise applicable, the nervous shock claims would survive at common law in any event.

Sidhu v British Airways   flag  69

[1996] UKHL 5; [1997] AC 430; [1997] 1 All ER 193; [1997] 2 WLR 26; [1997] SC (HL) 26
House of LordsUnited Kingdom – Scotland12th December, 1996

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