November 20, 2021

A passenger who sustained a minor cabin injury aboard an Emirates B777 and who chose to sue in Australia has achieved a major legal breakthrough for all Australian international airline users.

Stephen Bradshaw boarded the flight to Brisbane via Dubai in Dublin in January 2019. It was shortly before arrival into the United Arab Emirates that a hard-shell child’s Trunki suitcase fell out of an opened overhead locker as the aircraft banked and struck him on the right temple causing an observable red mark on his forehead and an escalating headache.

Although the 28-yr-old could also have sued in Ireland or indeed in the U.A.E. or Queensland for his resulting neck injury, the Australian resident chose to run the gauntlet of NSW’s anti-consumer Civil Liability Act (CLA) by starting his injury compensation proceedings in the Federal Court in Sydney.

When he filed his lawsuit against the airline, the decision Grueff v Virgin Australia – adverse to his prospects – had yet to be delivered by the very same court.

What Grueff – which concerned a Virgin aircraft cabin injury en route from Bali to Sydney – had decided, was for the 15% general damages barrier in CLA s16 to be “picked up and applied” to the award of compensation for “bodily injury” under the federal Civil Aviation (Carriers’ Liability) Act (CACLA) which implements the Montreal Convention.

Philip Grueff – who sustained symptoms of poisoning after being served contaminated water mid-flight – was denied damages because his stomach cramps, nausea, diahorrea, fatigue, anxiety etc could not be said, without interpretative expert medical evidence, to be a “bodily injury”.

Justice John Grifiths went on however to venture that because CACLA itself does not specify how international injured passenger damages are to be formulated, the CLA had to be used as “surrogate federal law” to fill in the gap.

As in the case of Philip Gruelf, the injury for which Stephen Bradshaw sought compensation from Emirates Airlines, was relatively minor.

With conflicting accounts of the aftermath of the event and his complaints about symptoms, Justice Angus Stewart noted Bradshaw – who had unsuccessfully requested to be moved into a business class seat after the incident – “never sought any medical or physiotherapeutic advice or treatment for the [neck] injury or any referred pain”.

He assessed general damages at just $5k but as the injury fell well short of the CLA s16 15% impairment threshold, he could only award it to Bradshaw if the section had no application.

Judiciary Act s 80 would – he reasoned – only “pick up” the “common law in Australia as modified by the Constitution and by the statute law in force in the State” if CACLA’s provisions were “insufficient to carry them into effect, or to provide adequate remedies”.

In his view though, because CACLA and the Montreal Convention of themselves provide a complete cause of action and a remedy – namely,  “the recovery of compensatory damages for damage sustained” – there was no “insufficiency” or “inadequacy” and therefore no “gap”.

And in the absence of any “gap”, no s 80 recourse was required to the common law or any other law. Further, because the CACLA “otherwise provides” nor did s 79 (1) apply.

As in some Trade Practice Act cases to which he referred, a claimant’s entitlement to CACLA damages has – Justice Stewart explained – a statutory source in which the court’s task is “to select a measure of damages which conforms to the remedial purpose of the statute”.

To apply that part of the CLA containing the 15% general damages threshold to international carriage cases, he observed, “would fundamentally distort the structure of the rights and interests of carriers and injured passengers as expressed in the Montreal Convention”.

“The two regimes are substantially different and inconsistent with one another,” he wrote in his 40 pages of reasons. “To pluck one component out of one scheme and impose it on the other would create such distortion as to be in conflict with that other scheme”.

The means of assessing damages for CACLA claims was analogous to the common law because those norms had been relied on over the years “indirectly as a source of guidance”. That exercise though, concerned only the assessment of damages and was not a necessary component of arriving at the remedy itself.

Justice Stewart’s ruling substantially accords with that of Justice Andrew Keogh in the Victorian Supreme Court who rejected a similar submission from Emirates in 2018 in which it relied on Judiciary Act s 79 in an endeavour to defeat an injured passenger claim by importing Victoria’s anti-consumer Wrongs Act provisions.

The ruling takes precedence over that of Justice Griffiths as his decision was ‘obiter’, ie strictly unnecessary for the determination of Mr Grueff’s case which was decided on the basis he had no ‘bodily injury’ to start with.

Bradshaw v Emirates [2021] FCA 1407 Stewart J, 12 November 2021

Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 Griffiths J, 12 May 2021

Categories: aircraft accident , Aviation Law

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