In brief - Plaintiff fails in bid to sue Emirates for economic loss from inflight injury

In the case of Bradshaw v Emirates [2021] FCA 1407, Justice Stewart, in the Federal Court of Australia, rejected a plaintiff's claim for compensation for economic loss and awarded minimal damages only for pain and suffering. However, of significance he found that the threshold for and limits of liability for damages under the Civil Liability Act were inconsistent with the Montreal Convention and would not be picked up and applied.

Plaintiff injured on Emirates flight seeks damages for injury and economic loss

Mr Bradshaw sought damages for an injury sustained when a suitcase fell out of an overhead luggage bin and struck him on the head during a flight from Dublin to Dubai in January 2019. He sought damages from the airline under Article 17 of the Montreal Convention, which has force of law in Australia by section 9B in Part 1A of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (Carriers' Act).

It was accepted that he was struck by the suitcase, but it was claimed by the plaintiff that he had, in addition to the personal injury, sustained out-of-pocket expenses, lost wages and lost economic opportunity in the past and in the future. 

Emirates disputed that the injury caused any economic loss and also said that Part 2 of the NSW Civil Liability Act 2002 (CLA) is picked up and applied as a federal law by section 79(1) or section 80 of the Judiciary Act 1903 (Cth) with the result that section 16(1) of the CLA applies. Under that section, no damages may be awarded for non economic loss for personal injury unless the severity of the non economic loss is at least 15% of a most extreme case. 

It was accepted that the injury did not meet that threshold.

Federal Court trial findings

There was significant dispute regarding the factual evidence in relation to the accident and its sequalae and, after hearing the evidence, Justice Stewart took the view that the plaintiff had "embellished his version of what occurred on the flight in order to bolster his complaint against Emirates" and that he was not limited in what he could do. Accordingly, he was not persuaded that any economic loss was established.

The real question arose regarding the measure of damages in circumstances where the plaintiff  maintained that, by reason of the provisions of Article 17(1) of the Montreal Convention, general damages for pain and suffering and loss of the amenities of life are recoverable. This was consistent with the decision of Justice Keogh in Di Falco v Emirates [2018] VSC 472.

On the other hand, Emirates maintained that the CLA provisions in relation to limitation of liability and exclusion of claims for non economic loss, in circumstances where damages did not exceed at least 15% of a most extreme case, should be picked up and applied in determining the measure of damages.

As was noted by Justice Stewart, this matter is one in federal jurisdiction under section 39B(1A)(c) of the Judiciary Act as it is a matter arising under a law made by the Federal Parliament. This has the result that the CLA does not apply unless it is picked up and applied by a law of the Commonwealth and, in particular, by sections 79(1) or 80 of the Judiciary Act.

Section 79(1) provides:

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.

Section 80 provides:

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

Federal Court's decision in Bradshaw v Emirates 

In the decision of Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501, Justice Griffiths made obiter comments in his judgment to the effect that, since the Carriers' Act does not provide for the heads of damages available under Article 17(1) for "bodily injury", the statute laws of the Commonwealth was "insufficient" or fails to provide "adequate remedies" such that recourse must then be had to the common law on damages as modified by the statute in which the court exercising jurisdiction is held, namely the CLA.

In the Bradshaw case, Justice Stewart took a different view. He concluded that the right of action was given by the Carriers' Act and the Montreal Convention as enacted itself provides that damages recoverable are for "damage sustained in the case of … bodily injury" and that such damages are compensatory. Damages are not common law damages but damages under convention as interpreted and implemented by the domestic courts. 

In Justice Stewart's view, Part 2 of the CLA was inconsistent with Articles 17 and 21 of the Montreal Convention. He concluded that the liability regimes under the Carriers' Act and the CLA were substantially different and inconsistent with one another, and, in the circumstances, he concluded that section 16(1) of the CLA could not be picked up and applied to an Article 17 claim by section 80 of the Judiciary Act. 

That conclusion was consistent with the conclusion reached in Di Falco and inconsistent with the conclusion in Grueff.

The upshot was that the plaintiff was awarded $5,000 as "adequate and appropriate compensation" for his pain and suffering and Emirates' contention that Mr Bradshaw's general damages were excluded by the fact that they did not meet the threshold in section 16 of the CLA was rejected.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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