Psychiatric injuries to non-passengers: what is the appropriate cause of action?
Dec 2013 |Cousins & Pinney v Nimvale & Ors [2013] WADC 175
The District Court of Western Australia has recently handed down its judgment on an Application filed by the defendant in Cousins & Pinney v Nimvale & Ors [2013] WADC 175, in which orders were sought to strike-out claims for nervous shock by non-passengers following a fatal aircraft accident.
Background
The plaintiffs, Mr and Mrs Cousins and Mr and Mrs Pinney, (plaintiffs) were parents of two young women who were fatally injured in a helicopter crash in Western Australia on 14 September 2008.
The plaintiffs brought a claim against, among other entities, Nimvale Pty Ltd, the operator of the accident aircraft (defendant).
The action was commenced by writ of summons filed 9 September 2010 and pleaded a claim for damages under the Civil Aviation (Carriers Liability) Act 1961 (WA) (CACLA) in which damages were essentially sought for loss of dependency. However, the plaintiffs' subsequent statement of claim, filed 8 November 2012, raised a further claim in negligence and under the Fatal Accidents Act 1959 (WA), seeking damages for nervous shock allegedly suffered by the parents of the deceased.
The defendant brought an Application seeking an order that the claims for nervous shock be struck-out on the basis they exceeded the indorsement in the writ and, while pleaded in the subsequent statement of claim, were raised after the expiration of the relevant limitation period and were therefore statute-barred.
Staude DCJ stated that determination of the Application distilled to a consideration of three issues:1 may damages for psychiatric injury at common law be claimed in addition to damages under the CACLA;2 if so, was such a claim within the scope of the plaintiffs' indorsement; and3 can damages for psychiatric injury to a non-passenger be awarded under the CACLA?
Is a psychiatric injury to a non-passenger captured by the CACLA and, if not, is the CACLA an exclusive remedy?
Staude DCJ affirmed the long-standing decision of South Pacific Air Motive Pty Ltd v Magnus,1 in which it was held the CACLA has no application to claims for psychological injury to non-passengers arising out of injuries occurring to passengers as a result of an accident on board the aircraft. As such, His Honour had to consider whether the CACLA acted to prevent the plaintiffs from bringing a separate, yet concurrent, common law claim for nervous shock.
Section 35(2) of the CACLA states 'the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger'. Given this provision, and as the plaintiffs had a valid cause of action under the CACLA for dependency losses, it was argued the CACLA was an exclusive remedy and, as such, the only damages the plaintiffs could seek to recover were damages relating to the alleged dependency losses. In other words, it was contended s 35(2) of the CACLA acted to extinguish any other cause of action which might be available to the non-passenger plaintiffs.
In considering the effect, if any, s 35(2) had on a non-passenger's right to bring an action in tort (which fell outside the ambit of the CACLA), Staude DCJ explored the wording of s 35(1) of the Act which states, 'The provisions of this section apply in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death).' In keeping with the decision of South Pacific Air Motive, His Honour found that, as s 35(1) does not refer to an injury suffered by a non-passenger, the limitation imposed by s 35(2) did not apply so as to prevent an action in tort for injury to a non-passenger. This was so 'even where there is nexus with a passenger who has been killed or injured'.2
Accordingly, the plaintiffs were technically capable of bringing a common law tort claim in conjunction with their claim under the CACLA.
Was the claim in tort within the scope of the plaintiffs' indorsement?
Under Western Australian procedural law,3 before a writ can be issued, it must be indorsed with a concise statement of the nature of the claim made and the remedy or relief required in the action. A statement of claim which exceeds the indorsement on the writ should be struck out, unless the indorsement is amended.4 However, an indorsement cannot be amended to include a claim which is statute-barred.5
Having regard to the indorsement in the plaintiffs' writ, Staude DCJ stated it was 'patently clear that no common law claim was contemplated as there is no allegation of fault.' As the common law nervous shock claim was pleaded more than three years after the event, it was statute-barred.
Issues arising from decision
In addition to providing a timely reminder to those entering a writ to ensure the indorsement encompasses all possible causes of action, the decision re-affirms two key points, being:
1. A psychiatric injury to a non-passenger is not captured by the CACLA; and
2. The CACLA does not prevent a non-passenger bringing such a claim in tort even if they also have a cause of action arising under the Act for other damages (such as dependency).
An important consideration to note from this latter point is that, while any damages sought under the CACLA will be pursued in a strict liability environment, should a non-passenger pursue a concurrent claim in tort (such as for nervous shock) they will need to prove their case in negligence.
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(1) [1998] FCA 1107.
(2) Staude DCJ at paragraph 36, referencing the principles derived from Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642.
(3) Order 6 r 1(1) of the Rules of the Supreme Court 1971.
(4) Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 238.
(5) Weldon v Neal (1887) 19 QBD 394; Morgan v Banning (1999) 20 WAR 474.
