Aviation Law in Australia: A Comparative Analysis of Liability

This essay provides a comprehensive overview of aviation law in Australia, focusing on the liability of carriers in cases of passenger injury or death. It explores the evolution of liability rules, including the Warsaw system, the Montreal Convention, and the Civil Aviation (Carriers' Liability) Act 1959, which governs domestic carriage. The essay details the two-tier liability arrangement of the Montreal Convention, the limits of liability, and the application of the 'fifth jurisdiction' for claims. It also examines the legal framework for domestic carriage, including the fixed liability limits and the treatment of mental injury. The essay concludes by emphasizing the importance of harmonizing international and domestic frameworks to ensure fair compensation and balance the interests of carriers, victims, and governments. It analyzes the key provisions of the Civil Aviation (Carriers’ Liability) Act 1959, including the 2012 amendments and the impact of mental injury on compensation claims.

Running Head: AVIATION LAW IN AUSTRALIA
Aviation Law in Australia
[Type the document subtitle]
Student’s name

AVIATION LAW IN AUSTRALIA 1
Introduction
Travel by air across the state, all over the country or even internationally is a very
common thing now these days. Day by day traveling by flight is becoming an important function
in present’s culture. People travel for several purposes including business trips, meetings,
education, medical services, and tourism. Many people cannot believe their life without traveling
by air. At times due to some technical default or natural calamity the travel through aircraft
results into mishap whereby the passenger suffered serious pecuniary and physical damages, this
gives rise to the liability on the part of the carrier. In Australia, the evolution of liability rules in
the case of injuries and death are mentioned in three different zones including the 1999 Montreal
convention, Warsaw system and the liability of domestic carries. All The provision related to
Liability of carrier in the matter of death or injury of a person travelling by the carrier is given
under Civil Aviation (Carriers’ Liability) Act 1959. In the case of death or injury of the
passenger, the family member of the passenger or personal representative of the passenger has
right to make a claim before the court for the compensation under civil Aviation (carriers
liability) Act 1959. 1
1 Department of Infrastructure and Regional development, Air Carriers’ Liability and Insurance (June
2014) < https://infrastructure.gov.au/aviation/international/liability.aspx>.

AVIATION LAW IN AUSTRALIA 2
Liability of international carriage in case of death and injury
Warsaw system (international carriage)
The evolution of international rules relating to carriers’ liability towards
passengers starts with a treaty made in Warsaw on 12 Oct. 1929. Warsaw convention
with all following protocols and conventions made the system of Warsaw. This system
introduces worldwide agreement outline for carriers’ liability regulations that govern
contractual travel by international aviation by signing the convention of Warsaw
countries applied legal rules related to liability of international carriage. This convention
was adopted by 152 countries in May 2009, when it originally came into existence.2 This
convention introduced rules which are the equally applicable for all the parties. It has
been amended several times by modifying protocols, but few states approved these
amendments.3
In Australia, the Warsaw instrument includes Warsaw convention, the Montreal
protocol no. 4, the Guadalajara convention, the Hague protocol. 4Under this convention,
the carrier will be considered liable in the case of death or injury which happened on
aircraft. The suffered party does not have to prove the fault of the carrier. But carrier will
not be held liable if all the required steps have been taken to evade the harms or it was
unimaginable for the carrier to proceed action. The Warsaw convention offers (cap)
2 Department of Transport and Regional Services, Consideration of The Ratification by Australia of the
Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999
(Montreal Convention) and Related Aviation Insurance Matters
<https://infrastructure.gov.au/aviation/international/pdf/ipb_mc_discussion_paper.pd>
3 Department of Infrastructure, Transport, Regional Development and Local Government, Review of
Carriers’ Liability and Insurance (2009).
<https://infrastructure.gov.au/aviation/international/files/Liability_Insurance_Discussion_Paper.pdf>.
4 Civil Aviation (Carriers' Liability) Act 1959 - Schedule 2 The Warsaw Convention as amended at the Hague <
http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cala1959327/sch2.html>.

AVIATION LAW IN AUSTRALIA 3
protection for the carrier in case of liability related to damages. But protection is not an
absolute remedy. The carrier will not be entitled to the protection if damages were made
deliberately `or carelessly and knowing the factor that damage will occur. The protection
for the liability was 125,000 Poincare gold francs made by original Warsaw convention
which is not in the existence.5 Determining the protection against the liability Australia
has used the updated gold rate in the market. According to the foreign jurisdiction, the
approximate limit of compensation has been set to US$ 10,000.many instruments and
convention was later added for the purpose of the amendment which raised the liability of
the carrier. A complex structure of international law regarding carriers’ liability has
cropped up as result of various amendments made by different parties to the Warsaw
Convention.6
Montreal (international carriage)
On 28 May 1999 at Montreal .The Montreal Convention quickly succeeded the Warsaw
system for the need of unification of laws related to the international carriage. On 4 November
2003, this convention came into existence in member countries. On 24 January 2009
implemented in Australia when the civil aviation amendment bill 2008 was approved by the
Parliament. The Montreal convention update and improve the rules introduced the new rules
related to carrier liability. This convention offers a two-tier arrangement of liability. Upon the
ground, strict liability Applicants has right to claim upto the limit of one lakh SDR (Special
5 Department of Transport and Regional Services, Consideration of The Ratification by Australia of the
Convention for the Unification of Certain Rules for International Carriage by Air done at Montreal on 28 May 1999
(Montreal Convention) and Related Aviation Insurance Matters
<https://infrastructure.gov.au/aviation/international/pdf/ipb_mc_discussion_paper.pd>.
6 International Civil aviation organization, the Warsaw System on air carriers liability
<https://www.icao.int/secretariat/PostalHistory/the_warsaw_system_on_air_carriers_liability.htm>.

AVIATION LAW IN AUSTRALIA 4
Drawing Rights) (around $200,000). Applicant does not have to prove the fault or negligence of
the carriers, only that the injury took place. Compensations more than the 100,000 Special
Drawing Rights are accessible to the applicant unless it is proved by the air carrier that the harm
was not made by the negligence, fault or error on the part of the carrier, the persons serving or
its agents. The Special the International Monetary Fund considers Drawing Right as pecuniary
value. Further,‘fifth jurisdiction’ is available under the convention to hear claim related to
damages. In addition, the Convention arrange for a ‘fifth jurisdiction’ to hear claims for
damages. This jurisdiction gives the permission of claim for damages in the matter of the death
or injury of the persons travelling by the aircraft which can be enforced in the territory where the
passenger resided when the accident occurred if the carrier works and situated in the country.7 In
Warsaw convention paper waybills were used as a required process for keeping the record but
this Convention permits basic electronic records for both cargo and passenger air transport and
allows companies to use better electronic billing systems. Till May 2009, the Convention
comprised 91 state parties, including chief aviation partners of Australia comprising New
Zealand, the UAE, Canada, USA, Japan, Singapore and the European group with member states.
The Montreal Convention is enforceable on the contractual international carriage of persons,
luggage, and freight executed by flight for the prize, among territories who have applied the
Convention. This convention is not for the domestic passengers or to flights to states who have
not applied the rules of this Convention. Hence, the Warsaw system is applicable on flights to
countries who applied the rules of the old Warsaw system but did not approve the elements of
7 Department of Infrastructure and Regional Development, Convention for Unification of certain Rules for
International Carriage by Air (Montreal, 28May 1999) <
https://infrastructure.gov.au/aviation/international/pdf/montreal_convention.pdf>.

AVIATION LAW IN AUSTRALIA 5
the Montreal system. the Montreal Convention is speedily receiving broad approval from the
countries and the Warsaw system is on the verge of its end.8
Legal framework in case of death and injury of passenger in domestic carriage
Part IV of the civil aviation (carriers’ liability) Act 1959 introduces a distinct structure of
carriers’ liability and this system is applied on carriage between Territories and States. The
domestic Australian travel does not cover under the Montreal Convention, the IATA agreements,
and the Warsaw System, It basically accepts the Warsaw guidelines in respect of the important
modification including liability limits which are fixed at A$500,000 and unbreakable. The
exception of duty of care is not available for the carrier. The limits of the liability are permanent
and the suffered party has no capacity to get compensation beyond the limits which have already
been decided by showing willful misbehavior, carelessness, intended or reckless behavior etc.
Further implementation of the rules related to Montreal Convention has covered the
physical injury; the domestic framework covers the personal injury. Personal injury contains
psychiatric injury. bodily injury, illness, disease, shock or mental torture, and the state
government legislation is maintained this system Which is applicable on Part IV of the Civil
Aviation (Carriers’ Liability ) Act 1959 to travel in the state, Thus making a national uniform
structure applicable to the whole nation . This method of liability also applicable to exceptional
cases related to travel between the territory of Australia and countries, which are neither
8 The International air transport association, Essential Documents on International Air Carrier Liability
(2012) < https://www.iata.org/policy/Documents/MC99_en.pdf>.

AVIATION LAW IN AUSTRALIA 6
following any of the international air rules nor the member to any of the conventions that
Australia has approved .
Part fourth of Aviation (Carriers’ Liability) Act 1959 deals with the rules of legal
framework related to liability of carries towards domestic passenger in the case of death and
injury. Section 26 of aviation( carrier’s liability ) Act 1959 defines domestic carrier which
handling a flight from one state to another state, from one territory to a place in Australia outside
the territory, from one place to another place in one territory or the carrier different from carriers
which given in the part IA, II, III.
Section 35 of aviation (carrier's liability) Act 1959 cover domestic air travel and imposed
the liability on domestic carriers in the case of death and injury( amounted to death). Liability on
a carrier which is imposed in is this section will be a replacement for any civil liability of the
domestic carrier. The liability which is imposed on the carrier is for the benefit of a family
member as well as for the personal representative, who are suffering the damages due to death of
the passenger. Damages which are recoverable comprised loss in income or in benefit till the
death of the passenger or funeral, hospital expenses or medical expenses in the case of injury
amounted to the death paid by the passenger before death or by any representative of the
passenger. Either Representative of the passenger or any family member of the passenger will be
entitled to enforce the liability in Australia for the advantage of all the person who is entitled to
such benefit. The Jury or court is entitled to award damages they are not limited to the monetary
loss only. Further, after recovering the amount from defendant court shall divide the amount
amongst the persons who are entitled to the benefit in the ratio as given by the court. But after
the subtracting the cost not paid by defendant .the court is empowered to limit the obligation on
the part of the carrier at any phase of the hearing which has been initiated either in an Australian

AVIATION LAW IN AUSTRALIA 7
court or outside and may give any order as it thinks fit as per the law of aviation of Australia.
Provision related to liability cap and compulsory insurance under Civil Aviation (carriers’’
liability) Act 1959 have been amended in 2012.9. its increase the amount from $500,000 to
$725,000 per person.10
Mental injury
One of the objectives of Australia’s liability and insurance framework is to work towards
a more simple system by harmonizing, where appropriate, our domestic and international
liability frameworks. The treatment of mental injury is a major part of contradiction between
Australian and international liability structures.11 Article 17 which is laid down under Montreal
Convention restricts liability of carrier towards death and injury. Bodily injury has explained by
the court as inclusive rights for purely mental damages. This is totally different from domestic
scheme, which approved damages in the case of personal injury. Domestic Courts have
explained this law as approving damages for mental injuries, regardless whether physical
injuries have also been incurred or not.12 The government realizes mental injuries can be
similarly devastating as so-called bodily injury and can have deep impacts on people’s daily life.
The Government’s offer related to this case is not to defame the mental injury. if we collaborate
where appropriate, the international and domestic systems; the Government considers that pure
mental damage must be excluded from the territory of the domestic system related to carriers
9 Aviation Legislation Amendment (Liability and Insurance) Act 2012
10 Civil Aviation Safety Authority, Change to the Insurance and Liability Framework (17 February 2016)
< https://www.casa.gov.au/standard-page/changes-insurance-and-liability-framework>.
11 Department of Infrastructure, Transport, Regional Development and Local Government, Review of
Carriers’ Liability and Insurance (2009).
<https://infrastructure.gov.au/aviation/international/files/Liability_Insurance_Discussion_Paper.pdf>.
12 Aviation Legislation Amendment ( Liability and Insurance) Bill 2012

AVIATION LAW IN AUSTRALIA 8
liability. This is a realistic approach which highlights the advantage of a modernized and easy
regulatory framework. It must be noted that case related to mental injury have been compensated
by courts even after this change. Removing the reference to ‘private injury’ and replacing ‘bodily
injury’ will not eliminate all doubt in relation to this matter. However limiting liability of the
carriers’ in the native system to ‘bodily injury’ will confirm the elimination of unnecessary
complexity from the overall liability structure across and international and native frameworks.13
13 Civil Aviation (Carriers’ Liability) Act, 1959 (Cth) ss 36, 37.

AVIATION LAW IN AUSTRALIA 9
Conclusion
The sole purpose of the Australia’s aviation liability framework will be that
to Deliver equal and fast compensation to aggrieved party and make an stability
between the carriers, victims, and governments. In the case of international
rules Government must ensure that provision of Montreal convention covers all
possible cases and limit the use of Warsaw system. Further the Montreal
convention must not cover the domestic travel and at last the government
should maintain the harmony between the both domestic and international
framework related to carriers’ liability. Government must discover the possibility
of improving The Civil Aviation (carriers’ Liability) Act that comprises the new
remedies that aggrieved can claim against carrier.

AVIATION LAW IN AUSTRALIA 10
References
Aviation Legislation Amendment (Liability and Insurance) Act 2012
Aviation Legislation Amendment ( Liability and Insurance) Bill 2012
Civil Aviation (Carriers’ Liability) Act, 1959 (Cth) ss 36, 37.
Civil Aviation (Carriers' Liability) Act 1959 - Schedule 2 The Warsaw Convention as amended at the
Hague < http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cala1959327/
sch2.html>.
Civil Aviation Safety Authority, Change to the Insurance and Liability Framework (17 February
2016) < https://www.casa.gov.au/standard-page/changes-insurance-and-liability-framework>.
Department of Infrastructure and Regional development, Air Carriers’ Liability and Insurance
(June 2014) < https://infrastructure.gov.au/aviation/international/liability.aspx>.
Department of Transport and Regional Services, Consideration of The Ratification by Australia
of the Convention for the Unification of Certain Rules for International Carriage by Air done at
Montreal on 28 May 1999 (Montreal Convention) and Related Aviation Insurance Matters
<https://infrastructure.gov.au/aviation/international/pdf/ipb_mc_discussion_paper.pd>.

AVIATION LAW IN AUSTRALIA 11
Department of Infrastructure and Regional Development, Convention for Unification of certain
Rules for International Carriage by Air (Montreal, 28May 1999) <
<https://infrastructure.gov.au/aviation/international/pdf/montreal_convention.pdf>.
Department of Infrastructure, Transport, Regional Development and Local Government, Review
of Carriers’ Liability and Insurance (2009).
<https://infrastructure.gov.au/aviation/international/files/Liability_Insurance_Discussion_Paper.
pdf >.
International Civil aviation organization, the Warsaw System on air carriers liability
<https://www.icao.int/secretariat/PostalHistory/
the_warsaw_system_on_air_carriers_liability.htm>.
The International air transport association, Essential Documents on International Air <Carrier
Liability (2012) < https://www.iata.org/policy/Documents/MC99_en.pdf>.