Written by Peter CarterDecember 28, 2012
The District Court last week ruled that Queensland’s Personal Injuries Proceedings Act pre-court requirements do not apply to international air carriage claims because the relevant federal legislation “otherwise provides…a detailed basis of the liability of the carrier”.
While the decision upholds the conventional view that PIPA had no application in such circumstances, his honour’s analysis lends some support for the as yet undecided argument that federal Judiciary Act s 79 does not “pick up” provisions of a state’s Civil Liability Act.
Pre-litigation procedures – regardless that they are expressed to be substantive law – “would stand as a conceptual impediment to the enjoyment of the right”, he said, under article 17 (1) of the Montréal 1999 Convention which expressly imposes liability for damages “upon condition only” that the criteria of an “accident” are met.
“The Convention provides a detailed basis to the liability of a carrier, not just in relation to damages for personal injury, but also in relation to other losses in other circumstances. It is part of a scheme which is designed to provide an international harmonisation of liability”.
Does this mean that CLA provisions that regulate injury compensation would also “derogate from the overall scheme of the Convention” and therefore have no application to claims litigated in Queensland (or equally, NSW)?
Perhaps the peculiar nature of recoverability under three-tiered Montréal liability scheme gives some force to an answer in the affirmative, to which can also be added the language of Convention article 9D:
- in sub-section (2), that “ the liability under the Convention is in substitution for any civil liability of the carrier under any other law”; and
- in sub-sections (7) and (8) which indicate the types of damages that are available.
The question remains open, but will no doubt come before a court before not too long.
Although successfully defending the airline’s strikeout application against her, the court admonished the plaintiff for “unnecessary and irrelevant pleading” and sent the Statement of Claim back for re-drafting.