Aviation limitations

Aviation claims for:

An employee of a labour hire company, who was seconded to an airline, was injured when struck on the elbow by a runaway trolley while deadheading on an international flight. Deadheading is the term for airline staff travelling free of charge on a normal passenger flight to their next point of duty.

A practitioner, who was an expert in workers’ compensation law, was retained by the employee to advise generally on the employee’s compensation rights regarding the injury. The practitioner engaged an interstate firm as agent. In a letter to the practitioner four months after the incident, the interstate firm confirmed its instructions to assist with the workers’ compensation claim. It also noted almost as a throwaway line that the employee could have a claim under the Civil Aviation (Carriers Liability) Act 1959 (Cwlth) (CACL Act) and it would be prudent to investigate the claim as the Act had a strict two-year time limit.

The practitioner sought advice from a barrister that he regularly used on workers compensation matters. The barrister had limited experience in the CACL Act area. The initial advice from the barrister was that further investigations needed to be made to determine if the client was a passenger for the purposes of the CACL Act. The barrister did point out the claim had to be brought within two years of the time the flight was due to land. He later concluded after seeing the airline’s manual that the client was probably considered crew and not a passenger.
As a result a claim was not pursued within time.

In the meantime a worker’s compensation claim was made and resolved. Then more than four years after the injury common law proceedings were issued against the airline as employer.

The proceeding was dismissed with costs awarded to the airline. The judge looked at international decisions and concluded the plaintiff was properly a passenger for the purposes of the relevant conventions and the CACL Act even though he was deadheading. His only remedy was to bring proceedings under the CACL Act which was statute-barred. The Act provided an airline’s liability to a passenger for personal injury was limited to the provisions of the CACL Act and the relevant conventions referred to in the Act.

The practitioner failed to appreciate the impact of the CACL Act, its exclusive jurisdiction and the finality of the limitation date and consequently the necessity of researching the definition of ‘passenger’ thoroughly.

Lessons

• Investigate all causes of action promptly, especially if the matter involves an area of law that is unfamiliar. Where there are multiple possible causes of action, ensure each is properly considered.
• Identify and diarise applicable limitation dates at the start of each matter and advise the client of the dates and importance of acting before then.
• If taking advice from counsel ensure they have expertise in the relevant area.