HIGH COURT OF AUSTRALIA AFFIRMS EXCLUSIVITY UNDER THE MONTREAL CONVENTION

In Parkes Shire Council v South West Helicopters Pty Limited the High Court held on 8 May 2019 that the right to damages under the Warsaw and Montreal Conventions and the analogous domestic regime sustained by reason the death of a passenger, is in substitution for any civil liability of a carrier under any other law including liability under general law to relatives of passengers for negligently inflicted psychiatric harm, sometimes described as nervous shock.

The case arose from a helicopter accident in which two passengers and the pilot were killed when the aircraft, engaged in commercial operations, struck a powerline. The carriage was subject to the Australian Civil Aviation (Carriers’ Liability) Act, which imposes a domestic regime for commercial operations which is based on the Warsaw/Hague Convention. The Act also gives effect to the Conventions and the High Court has previously held that the provisions giving effect to the domestic regime should be interpreted harmoniously with the equivalent provisions in the Conventions.

The relatives of one of the passengers did not commence proceedings against the carrier until after the expiry of two years, by which time the right of action under the Act, like a right of action under a Convention, was extinguished. The question for determination by the High Court was whether or not actions for psychiatric harm or nervous shock by the relatives were excluded by the provisions of the Act and the High Court held that the right to damages under the Act was in substitution for any entitlement for any claim that might otherwise have been brought under domestic law.

The decision of the Court turned primarily on the construction of the provisions in the Act which are the equivalent of Article 29 in the Montreal Convention but the Court referred to the international authorities which affirm the exclusivity and the purpose of the Conventions. The decision effectively overturns the reasoning of the majority in the decision of the Full Federal Court of Australia in South Pacific Air Motive Pty Ltd v Magnus, which Justice Gordon regarded as “contrary to the cardinal purpose of the Conventions”.

This decision establishes conclusively that the Australian courts will apply the prevailing international authorities, which establish that the remedies under the Conventions are exclusive.