September 27, 2021

The father of an 11-yr-old girl killed when her light aircraft crashed minutes after take-off from an idyllic Hawkesbury River waterway, has lost what is likely to have been his last chance to win damages over the psychological injury sustained in coping with the aftermath of the calamity.

Heather Page – together with her mother, stepfather, two stepbrothers and the pilot – died when the six-seater de Havilland Beaver floatplane met disaster on New Year’s Eve in 2017 on return to the Sydney Seaplanes base in Rose Bay.

The Australian Transportation Safety Bureau ultimately concluded that the pilot had been overcome by carbon monoxide from exhaust gas entering the cabin through holes in the main firewall where bolts were missing and in gaps around other bolts that were worn or were “non-specific”.

Ingestion of the fumes during the 27-minute taxi to the pickup location at Cottage Point left the pilot vulnerable to the onset of confusion, visual disturbances and disorientation when the engine and exhaust gases were at maximum output during and after take-off.

Alex Page filed his claim for compensation for “nervous shock” against Sydney Seaplanes as carrier in the Federal Court pursuant to – and prior to the two-year deadline specified in – the Civil Aviation (Carrier’s Liability) Act (Cth).

That was the fundamental legal error from which – despite valiant attempts – he was unable to recover, dooming any chance of a successful compensation outcome.

Regrettably, that Act had no application as it applies only to interstate and overseas commercial passenger transport.

The error was not one that could be rectified by simply amending the claim to refer to the NSW Act applying identical liability provisions to intra-state commercial air operations.

Page’s claim was thus struck out by Justice John Griffiths in April 2020 who ruled that no amount of amendment could remediate the plaintiff’s position because the Federal Court had no jurisdiction – notwithstanding the defendant was a corporation – to determine a matter devoid of any element of federal legislation or intercourse between states.

Because the two-year limitation period had already expired, it was too late to file fresh proceedings.

Page’s lawyers devised a “work around” by applying to the NSW Supreme Court to have the Federal Court matter transferred across contending that the Federal Courts (State Jurisdiction) Act (NSW) applied to the FCA order striking out Mr Page’s “state matter” claim for “want of jurisdiction”.

Justice Christine Adamson agreed and made an order that the FCA proceeding be treated as a Supreme Court matter that had commenced on the day it was filed in the Federal Court, ie within the two year deadline.

Sydney Seaplanes or rather its insurers, appealed.

Overruling the literal interpretation applied by the primary judge, the appeal judges came to the “unavoidable conclusion”, the State Jurisdiction Act was intended only to apply to matters in which “want of jurisdiction” arose from a “constitutionally invalid conferral of jurisdiction” on the FCA.

It was after all, an urgent stop gap measure implemented by every state to remediate the effect of a High Court ruling that invalidated their respective Jurisdiction of Courts (Cross-vesting) Acts.

It was never intended – noted Justice Mark Leeming – to be a “safety net for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court without first considering the issue of jurisdiction”.

So while the literal meaning of the State Jurisdiction Act allowed Mr Page’s claim to be revived in the Supreme Court, that meaning was rejected because it was inconsistent with its statutory purpose.

“The literal meaning of words in a statute will not always, correspond to their legal meaning,” observed the Appeal Court President, Justice Andrew Bell.

Barring a further appeal to the High Court of Australia, that is the end of the road for Mr Page’s claim against the carrier.

Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 Bell P Leeming JA Emmett AJA, 7 September 2021 Read case

Categories: nervous shock , aircraft accident , Aviation Law

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