Written by Peter CarterOctober 30, 2012
A final chapter in the resolution of the May 2005 Lockhart River air disaster unfolded in the Supreme Court in October when five Cape York families were awarded dependency damages against the insurer of the now-defunct airline.
Fifteen passengers and crew died when a Transair Metroliner smashed into mountains on a GPS approach to the Lockhart River airstrip in instrument meteorological conditions, just minutes from touchdown at the Far North Queensland location.
Most of the claims arising from the passenger deaths had already been finalised.
In the cases the subject of this month’s decision, each of the families calculated part of their loss – in addition to the financial support they will forgo by the untimely death of their breadwinner – by reference to the value of services, most notably in respect of hunting for fish, crustaceans, turtle and dugong, the deceased had supplied to their dinner tables.
Equally important, they claimed, was the guidance and training that the deceased elders were able to impart to children as to the traditions of their communities as well as specific education in traditional fishing and hunting techniques.
At contest was whether such “services” could be claimed for and if so, whether the loss should be calculated by reference to the value of seafood etc of which the survivors had been deprived or, on the other hand, it should be valued higher, by reference to an hourly rate applied to the time expended in performing of those services.
This question was answered in favour of the claimants with the court in Cairns deciding that $25 was a reasonable hourly rate, having regard to the special skill involved, of the provision of such services over 8 hrs weekly until the children attained age 18.
The resulting sum was reduced by 20% to take into account that some of the fish catch would be distributed to non-dependents and in most cases, by a further 15% for vicissitudes.
In four cases – each family consisting of several young dependent children – the maximum damages allowable under the Civil Aviation (carriers’ Liability) Act, of $500,000 were ordered to be paid because the assessment of those families’ losses exceeded that sum.
In the fifth claim, where the female deceased died leaving a de facto husband and one 18-yr-old child, the damages did not reach the maximum and were assessed at $388,000. The awards for each family were apportioned, by order of the court, pro-rata among the surviving spouse and dependent children according to their ages and needs.
Trad Thornton was also awarded the maximum allowable of $500,000 for his fiance’s death in the crash.
Other claims against the carrier Transair have been settled on confidential terms. Several families still have claims that are being pursued in the US against the component manufacturer, Honeywell.
A Bill to alter domestic air passenger injury compensation rights was introduced to Federal Parliament by transport minister Anthony Albanese in August and has passed the lower house. It is currently before the senate.
The last adjustment to the damages cap was in 1994. With an average annual inflation rate of 2.7% – the overall cost of living has increased more than 47% since then. The increase proposed by the Bill is less than that increase and no mechanisms are contained within it, for indexing the cap to cost of living changes.