Dear Colleagues;
In a brief judgement, a unanimous 5-member bench of the High Court of Australia today dismissed the appeal in ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (5 August 2009) http://www.austlii.edu.au/au/cases/cth/HCA/2009/28.html . The case was one of the few occasions where the courts have had to consider the "strict" liability regime in force for damage caused by aircraft. The Commonwealth Damage by Aircraft Act 1999 provides that damages are recoverable "without proof of intention, negligence or other cause of action" (s 11) where (under s 10)
" a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:
(a) an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or
(b) an impact with part of an aircraft that was damaged or destroyed while in flight; or
(c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or
(d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c)."
In these proceedings a light aircraft engaged in crop dusting in the outback had passed too low under some power lines and caused them to break. A wire was left hanging down over a damp cotton field. Mr Cook was an employee of the power company who had come to repair the line, and was seriously injured when electrocuted as he approached too close to the live wire.
The lower courts, and the High Court, held that despite the fact that Mr Cook himself was not directly hit by something falling out of the plane, his injury was "caused by.. (d) something that [was] a result of an impact [with an aircraft that is in flight]". The "something" was the dangerous situation created by the live wire hanging over the field, a place to which Mr Cook had only come because of the impact of the plane with the wires. The High Court refused to discuss all the possible situations where there might be a need to draw some causation lines, stating that in this case at any rate the links were clearly close enough for causation to be established- see eg [14], [28].
They also agreed that what was arguably carelessness by Mr Cook was not so bad as to break the chain of causation, or to make the accident completely "his fault". Something not mentioned in the HC judgment, but commented on in the NSWCA (see [2008] NSWCA 161) was that a reduction of damages on account of contributory negligence was held not to be available, as liability under the statute was held not to "in tort" as required by the relevant NSW statute (the Law Reform (Miscellaneous Provisions) Act 1965). That is perhaps a surprising but in my view arguably a supportable proposition. As the NSWCA noted, an action under s 11 of the DAA is not an action for "breach of statutory duty" as such, because it is not an action based on a particular duty- it is a special statutory civil remedy given in particular circumstances. Of course in some situations it will not matter, but I think it is plausible that the field of civil damages claims does include some things (other than actions in contract and unjust enrichment) that are not "torts".
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
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