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Indirect damage by aircraft 37 WCMS 1

ACQ PL v Cook; Aircair Moree PL v Cook [2009] HCA 28. French CJ, Gummow, Heydon, Crennan & Bell JJ.

The respondent was a Northpower (Country Energy) linesman who had attracted damages of $953,141 before Johnstone DCJ in May 2007 after suffering electric shock on 28.12.00 when investigating a power line across a cotton field, which had been dislodged by a crop dusting aircraft owned by the first appellant and operated by the second.

His Honour found negligence against the employer, and the aircraft operator by its pilot, and contributory negligence in the plaintiff, although rejecting voluntary assumption of risk.

More particularly, his Honour found liability in the instant appellants by theDamage by Aircraft Act 1999 (Cth) ss10 and 11.

The negligence and associated contributions were set aside in July last year by the NSW Court of Appeal: [2008] NSWCA 161, per Campbell JA, but maintained liabilities under the DAA provisions, which exclude intention as an element, therefore eluding the Civil Liability Act 2002 (NSW) s5A and the Law Reform (MP) Act 1965 s9.

The High Court dismissed the appeals with costs. The Full Court detailed the background and submissions, noting reliance on and quoting from March v E & M H Stramare PL (1991) 171 CLR 506; [1991] HCA 12, and Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525.

The Court [27]: “Not every lawyer has found the analysis of causation in March v Stramare helpful. But, without casting doubt on anything that was said in March v Stramare or in Wardley Australia Ltd v Western Australia, it is not necessary in construing s 10(1) to rely on any analogy with what was said in those cases, at least in the course of resolving the present appeals. To this limited extent there is some force in the appellants' submissions. And quite independently of the Court of Appeal's translation of March v Stramare to s 10(1), one of the principal points extracted by the Court of Appeal from that case is uncontroversial, and was not controverted by the appellants – the proposition that there can be multiple causes of the damage suffered by a plaintiff. Further, the context of the passage quoted from Mason CJ's reasons for judgment in March v Stramare reveals that Mason CJ was concerned merely to reject the ‘but for’ test as an exclusive criterion of causation. 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.”

Then, “A final argument by the appellants was that on the Court of Appeal's approach, the plaintiff could have recovered damages if, after he had been summoned to the scene of the accident, he had injured himself hurrying from his house to his truck, or driven off the road on his journey, or injured himself while alighting from the truck on arrival. This conclusion and other illustrations which the appellants gave, they said, would rest on an ‘absurd, extraordinary, capricious, irrational or obscure’ construction. It is far from clear that those epithets would be correct: but, in any event, decisions about the injuries postulated can be made when it is necessary to make them. The problems they pose are different from the problems posed in these appeals.” [28]

Earlier, their Honours noted [15]: “In the course of illustrating the scope of s 10(1) as they submitted it to be, the appellants gave an illustration of a plane exploding on landing, thus setting alight structures nearby and causing death or injury to a plaintiff whose house is burned down. They conceded that a fire fighter who was summoned to fight the fire and who was injured by it would be within s 10(1)(d), even if the scene of the fire was some distance from the fire station. That concession was correct because, as the appellants accepted, there was no reason not to conclude that the fire fighter's injury was caused by ‘something’ that was a result of an impact between the aircraft and the ground, namely the fire. …”

To the statute’s reference to “something that is the result of an impact”, at [18] the Justices held: “There is no linguistic strain in characterising what happened to the plaintiff as a personal injury caused by ‘something’ that is ‘a’ result of an impact between the aircraft in flight and the conductor. The plaintiff adopted the trial judge's conclusion that the ‘something’ was the movement of the conductor into a dangerous place, 1.5m above the ground at its lowest point, creating a foreseeable risk for persons near it. The Court of Appeal appeared to treat the ‘something’ as the movement of the conductor into a position where people were at risk of getting dangerously close to it. There is no substantive difference between these characterisations in this case, and they are correct. The injury was caused by the dangerous position of the conductor, and its dangerous position was the result of an impact between the aircraft and it.”

After noting that the 1952 Rome Convention enlivened by the 1958 Commonwealth statute excluding indirect damage had been repealed by the 1999 Act whose s 3 and parliamentary speech evinced intention to extend the indemnity to indirect consequences, the Court held the intermediate appeal “… was correct to conclude that s 10(1)(d) does in a sense extend liability from ‘direct consequences’ to ‘indirect or consequential results’.”

A defensive cross-appeal, on the intermediate appeal’s dismissal of finding of obligation between the first appellant operator and the plaintiff, was dismissed, and because it was of slight moment in the hearing and occasioned only by the operator’s appeal, the operator was ordered to wear its costs as well.

A: B W Walker SC, G Curtin, inst Riley Gray-Spencer Lawyers. R: P Menzies QC, G Giagios, inst Whitelaw McDonald.

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