In brief - Court examines applicability of Part VBA of Wrongs Act in a personal injury claim

The recent decision of Justice Keogh in the Supreme Court of Victoria in Di Falco v Emirates [2018] VSC 472 involved the determination of the preliminary question: Does Part VBA of the Wrongs Act 1958 (Vic) apply to the claim of a plaintiff who alleges she fell and injured her ankle while making her way to the toilet on a flight from Melbourne to Dubai?

The claim was brought pursuant to the Montreal Convention 1999 as scheduled to the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (Carriers' Liability Act).

The airline had pleaded in its defence that Part VBA of the Wrongs Act applied such that damage for non-economic loss was not recoverable unless the plaintiff had suffered a significant injury.

Carriers' Liability Act, Wrongs Act and Judiciary Act

Section 9B of the Carriers' Liability Act provides that the 1999 Montreal Convention has the force of law in Australia. Section 9E provides that "the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury."

Part VBA of the Wrongs Act sets thresholds in relation to damages for non-economic loss at 5% impairment for injury, other than psychiatric or spinal injury, and 10% for psychiatric injury.

While application of the part is excluded for claims of a certain type, there is no exclusion of claims under the Carriers' Liability Act.

Section 79(1) of the Judiciary Act 1903 (Cth) provides:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Di Falco v Emirates issue and decision

Justice Keogh noted that as the plaintiff must rely on the section of the Wrongs Act that applies to proceedings in respect of injury "caused by the fault of another person" and fault does not have relevance to a claim under the Carriers' Liability Act, accordingly part VBA of the Wrongs Act was not applicable to the plaintiff's case.

He also noted that to apply the relevant threshold in Part VBA of the Wrongs Act to the plaintiff's claim would be to extinguish her rights given to her by the Carriers' Liability Act. In these circumstances the provisions of Part VBA would not be "picked up" by section 79 of the Judiciary Act because Commonwealth law "otherwise provided".

Support was provided by the High Court decision in Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38 and its consideration of the Judiciary Act provision in relation to a claim brought in Victoria in relation to an accident in the Northern Territory for damages under the Carriers' Liability Act.

Importantly, the judge noted that a different position arose in the case of Casey v Pel Air [2015] NSWSC 566. That case involved the wording of provisions of the Civil Liability Act 2002 (NSW) which applied "whether the claim for damages is brought in tort, or contract, under statute, or otherwise" and did not involve a requirement of causation by fault.

In reaching his decision, the judge distinguished the US Supreme Court decision in Zicherman v Korean Airlines Co Ltd 516 US 217 (1996) in which Scalia J had noted that "the law of the Convention does not affect the substantive questions of who may bring suit and what they may be compensated for. Those questions are to be answered by the domestic law selected by the courts of the contracting states." It was said by the judge to be distinguishable as the issues raised by the Judiciary Act did not arise in that case.


The decision has the interesting effect that considerations of the interplay between state and federal legislation will vary depending upon the state of Australia in which a claim is brought. The different wording of tort laws in Victoria and New South Wales highlights this and may lead to some element of forum shopping in the future.

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