Assessment of damages for lost opportunity in aviation claim

In brief - Plaintiff fails in professional negligence claim  

New South Wales District Court Judge Gibson recently determined that damages for an injury allegedly sustained while disembarking from an aircraft in Queensland should be assessed under the state legislation—the Civil Liability Act 2002 (NSW)—in a claim for professional negligence. The claim arose from the lawyers' failure to commence proceedings within the two year limitation period under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (Carriers' Liability Act). 

The decision provides some useful analysis of recent cases dealing with the issue of lost opportunity and assessment of damages, and examines issues of inconsistency between federal and state laws. 

Plaintiff injured disembarking from a Jetstar flight claims against law firm for failing to issue proceedings within Carriers' Liability Act time limit

The plaintiff allegedly sustained injury when she slipped on a wet staircase while disembarking from a Jetstar aircraft. Her lawyers failed to issue proceedings within the two year limitation period under section 34 of the Carriers' Liability Act, rather than the three year period under the Civil Liability Act. 

It was acknowledged that her lawyers had breached their duty of care and the prime issue in the case was the applicable law for the assessment of damages.

Loss of opportunity damages determination and plaintiff's personal injury claim

The judge noted that any determination of the value of the lost chance of recovering damages in an action against Jetstar required an examination of the plaintiff's evidence in proceedings of personal injury. He noted he must first determine the prospects of success in the "lost" cause of action, and then must determine the sum likely to be awarded with reduction for the percentage of her likely chance of success or failure. 

The plaintiff claimed that she had very significant restrictions on her ability to perform domestic activities, and these problems arose from the Jetstar accident. However, the defendant submitted that her evidence was false for various reasons. The judge agreed that the plaintiff's own evidence was largely unsupported by the medical evidence she relied upon, and indeed by her own son's evidence. 

New South Wales Civil Liability Act and federal Carriers' Liability Act applied in assessing damages

The judge followed the path set out in an unreported decision of Judge Sorby in Arefin v Thai Airways International Public Company Ltd in the New South Wales District Court in August 2007 where he found that the NSW law applied to the assessment of damages. 

It was also consistent with the recent decision of the NSW Court of Appeal in Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32, although he noted that in that case the NSW Court of Appeal applied the Civil Liability Act provisions, and the issue of application was not apparently the subject of any dispute between the parties or court finding. 

Nevertheless, "in case I am wrong", Gibson DCJ assessed damages under both Acts and concluded that, whichever legislation was applied, he was satisfied that the plaintiff's injuries were so slight as to be de minimis and he considered that her claim was so speculative that it would probably have received only nominal damages with either no costs, or possibly adverse costs orders. 

Gibson DCJ concluded that the combination of the minimal nature of the injuries and token damages correspondingly likely to be awarded, must result in a finding that the plaintiff had not lost a chance at all, in circumstances where the costs of proceeding might have outweighed any award of damages.

He gave judgment for the defendant law firm and ordered the plaintiff to pay the law firm's legal costs of the proceedings.