August
2013
Victorian Developments: Inquiry into aspects of the Wrongs Act
1958 (Vic) including damage by aircraft
By Shannon O’Hara, Senior Associate
In July 2013, the Victorian Competition and
Efficiency Commission (Commission) released
an Issues Paper, ‘Inquiry into aspects of the
Wrongs Act 1958 (Vic)’. The Wrongs Act 1958
(Vic) (Act) is the primary piece of legislation
governing personal injury (including death)
claims in Victoria (exclusive of workplace
injuries and transport accident injuries). The
Commission is now calling for submissions in
1
response to the issues paper. This update
provides an outline as to the focus of the inquiry
but in particular as it relates to the strict liability
regime applicable for damage by aircraft.
General focus of the inquiry
The issues paper is generally focused on:
limitations on liability for damage arising
from negligence claims in the form of
thresholds and caps and whether this
approach is efficient, equitable and
consistent;
discount rates applicable to lump sum
damages awarded for future economic loss;
and
limitations on damage
2
attendant care.
for
gratuitous
While these matters will be of interest to
insurers, the final section (Part 3) of the issues
paper focuses on the strict liability regime for
damage by aircraft and will therefore likely have
broad interest to those in the aviation industry in
Victoria, and for those national insurers dealing
with the aviation industry in this state.
The issues paper notes that Part VI of the Act
governs:
‘liability for loss or damage to a person or
property on land or water caused by aircraft
or by an article or person falling from an
aircraft, and attaches that liability to the
3
aircraft owner’.
Additionally, the issues paper makes particular
reference to ss 31(1), (2) of the Act noting:
‘a strict liability regime applies, whereby
liability for damage caused by aircraft to
persons or property on the ground are
recoverable from the aircraft owner without
the need for the person who has suffered
damage to prove negligence (unless the loss
or damage was caused, or contributed to, by
the negligence of the person by whom it was
suffered). Although liability is strict, an
aircraft owner can claim indemnity from any
person who is legally liable to pay damages
4
in respect of the loss or damage’.
‘An aircraft owner is not liable where the
aircraft has been demised, chartered, let or
hired for more than 14 days and where no
crew member of the aircraft is employed by
the owner. In this case, liability attaches to
the person to whom the aircraft has been
5
demised, chartered, let or hired.’
Strict liability regime for damage by
aircraft
The issues paper quite correctly does not
purport to address the Commonwealth Damage
by Aircraft Act 1999 (Cth) (Commonwealth
Act)
but
rather
focuses
on
those
unincorporated intra-state operators who fall
outside of the scope and operation of the
Commonwealth Act and are thus covered by
Part VI of the Act.
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The driver behind the Commission considering the
strict liability provisions of the Act is whether
‘there is sufficient justification for the Act to
attach liability to an aircraft owner for damage,
rather than the usual common law provisions of
6
liability attaching to a negligent party’.
In particular, the Commission reports it is
interested in exploring the issue of the liability of
unincorporated Victorian aircraft owners for loss or
damage to persons, having regard to:
the appropriateness of a strict liability regime as
balanced against the need to provide
compensation for damage by aircraft;
whether such legislative measures result in
ensuring and/or providing incentives to take
safety precautions, minimisation of compliance
costs and impacts on the aviation industry; and
legislative consistency
7
state/territory basis.
on
a
state
by
Those in the aviation industry will be aware that
after a number of years of limited legislative
attention in regards to damage by aircraft, the
body of law on this issue has recently come into
focus at both the Commonwealth and State level.
Irrespective of the particular views which may be
held as to the suitability or otherwise of the
legislative regime applicable to this area of
aviation, it is pleasing to see ongoing assessment
and review of the law applicable to damage by
aircraft in order to ensure it continues to meet the
expectations and needs of the industry as well as
the community at large.
For those interested in considering the issues
paper in detail, it is available on the Commission’s
website www.vcev.vic.gov.au. Submissions in
response to the issues paper are due by 6
September 2013 following which it is proposed that
a Draft Report will be released for further
consultation in November 2013. The Commission’s
Final Report to the Victoria government is due to
be delivered in February 2014.
We will continue to monitor the progress of the
Inquiry and will report on the draft report once it is
released in November 2013.
1
Refer to Page 2 for a full listing of the Parts/Sections to which
the Inquiry is focused.
2
Victorian Competition & Efficiency Commission, Issues Paper:
Inquiry into aspects of the Wrongs Act 1958 (July 2013)
http://www.vcec.vic.gov.au/CA256EAF001C7B21/WebObj/Issu
esPaperInquiryintoaspectsoftheWrongsAct1958(PDF)/$File/Issues%20
Paper%20%20Inquiry%20into%20aspects%20of%20the%20Wrongs%20
Act%201958%20(PDF).pdf, p. 1- 2.
3
IBID at page 17.
4
IBID at page 17, referring to section 31(1) of the Wrongs Act
1958 (VIC).
5
IBID at page 17, referring to section 31(2) of the Wrongs Act
1958 (VIC).
6
IBID at page 17.
7
IBID at page 17.
Author
Shannon O’Hara
Senior Associate
T (07) 3000 8491
E sohara@carternewell.com
Liability of clubs and volunteers
Echin v Southern Tablelands Gliding Club [2013] NSWSC 516
By Christian Breen, Associate
The Supreme Court of New South Wales has
recently handed down its decision in Echin v
Southern Tablelands Gliding Club [2013] NSWSC
516, in which various defences raised under the
Civil Liability Act 2002 (NSW) were explored.
Background
The plaintiff, a member of the Southern Tablelands
Gliding Club (Club), was injured when a
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glider he was piloting collided with power lines
during an attempted landing at the Club’s airstrip.
During the last of four flights on the day of the
incident, the plaintiff was directed via radio (by the
duty pilot, a volunteer member of the Club) to
make a “hanger landing”, the purpose of which
was to land the aircraft close to the hanger to
minimise the distance for towing.
© Carter Newell 2013
As such, the Court stated the plaintiff’s claim would
have been precluded in circumstances where the
Club would otherwise have been found negligent.
Volunteers defence and vicarious liability
In defence of the claim, the Club also relied on ss
61 and 3C of the CLA.
Under s 61,
“A volunteer does not incur any personal civil
liability in respect of any act or omission done
or made by the volunteer in good faith when
doing community work: (a) organised by
a community organisation, or (b) as an office
holder of a community organisation.”
The plaintiff had originally intended to land on
runway 23 (the main strip), however, after being
instructed to conduct a hanger landing, opted to
land on runway 28, which involved navigating over
power lines. The plaintiff had undertaken such
landings previously. As the plaintiff approached
runway 28 to land, the aircraft collided with the
power lines and fell 100 feet to the ground. The
plaintiff suffered consequent injuries.
Quantum was agreed between the parties and, as
such, the trial concerned only issues of liability.
Ultimately, the Court rejected the plaintiff’s
assertion the Club had provided insufficient
training / instructions in regard to undertaking his
hangar landing. Accordingly, the Court held the
Club had not breached its duty of care and
therefore found against the plaintiff.
While the Court was not required to do so, it
proceeded to explore further defences raised by
the Club.
Dangerous recreational activity and
obvious risk
The first matter considered by the Court was
whether the flying of a glider in the above
circumstances was a dangerous recreational
activity within the meaning of s 5L of the Civil
Liability Act 2002 (NSW) (CLA). If so, the Club
would not have been found negligent.
Upon considering expert evidence on the issue,
the Court held that gliding involved a significant
risk of harm and could be classified as a
dangerous recreational activity as defined in the
CLA. The Court went on to state that, even if this
conclusion was incorrect, the particular activity
being undertaken by the plaintiff (being to attempt
a landing over power lines) certainly met the
definition. Additionally, the Court found the risk of
striking power lines while navigating an aircraft in
the vicinity of such an obstacle was an obvious risk
as defined under s 5K of the Act.
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Section 3C of the CLA states;
“Any provision of this Act that excludes or limits
the civil liability of a person for a tort also
operates to exclude or limit the vicarious liability
of another person for that tort.”
The plaintiff did not dispute the duty pilot was a
volunteer within the meaning of the CLA, nor that
the volunteer was therefore protected from liability
under the Act. The issue in contention though was
whether the Club obtained the same protection by
operation of s 3C.
Ultimately, and while there was discussion
regarding the delineation between liability which
arose in the Club directly (such as providing an
unsafe runway) and those liabilities which only
arose due to the conduct of the duty pilot
(including the failure to properly instruct the
plaintiff), the Court stated that, where the Club has
a truly vicarious liability for the volunteer, s 3C
affords the Club the same immunity as afforded to
the volunteer.
As such, had the plaintiff been able to prove his
allegations of negligence, the Club could have
successfully defended any liability which arose as
a result of vicarious liability.
Issues arising from decision
While the Court resolved the primary issue of
liability rather swiftly, the subsequent matters
explored by the Court provide some guidance in
considering issues of liability on similar losses.
Although this matter was resolved within the NSW
jurisdiction, the legislative provisions considered
are mirrored in some other State’s comparative
legislation and will therefore have relevance to
similar losses in other jurisdictions (note though s
3C of the CLA is not a provision generally shared
by other States).
© Carter Newell 2013
Even though the Court held that, as a recreational
activity considered generally, gliding could be
deemed dangerous under the CLA, the specific
circumstances in which the activity is being
undertaken will be relevant to this classification.
Notwithstanding the decision of the Court, the
findings suggested there was scope to contend
gliding in itself is not a dangerous recreational
activity. As such, when determining whether such
a defence can be raised, consideration ought be
given to the environment and circumstances in
which the activity is being undertaken. For
instance, operating in perilous weather conditions
or, such as in the above case, flying in close
proximity to obstacles, may taint an otherwise safe
recreational activity as a dangerous one under the
CLA.
While instances in which a volunteer will be
afforded the protection of the CLA may be clear,
uncertainty can arise in considering whether that
same protection may be taken advantage of by a
person or entity which has some responsibility for
that volunteer. As considered above, where liability
would flow through the volunteer to a responsible
entity as a result of vicarious liability, s 3C of the
CLA would usually extend the immunity to that
entity. However, careful consideration needs to be
given to the liabilities alleged against the entity
responsible for the volunteer. If a liability would
have arisen in the entity regardless of the conduct
of the volunteer, the entity will not benefit from ss
3C and 61.
As such, it is important to delineate between the
liabilities alleged as the mere involvement of a
volunteer will not necessarily save the responsible
entity.
Author
Christian Breen
Associate
T (07) 3000 8326
E cbreen@carternewell.com
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