Federal Court of Australia

Bradshaw v Emirates [2021] FCA 1407

ORDERS

THE COURT ORDERS THAT:

1.    Within 7 days of the date of these orders, the parties bring in agreed orders consistent with the reasons for judgment published today, including on interest and costs.

2.    If the parties are unable to agree any aspect of the orders:

(a)    within 14 days of the date of these orders, the parties file and serve their respective competing orders with short submissions in support;

(b)    within 7 days thereafter, the parties file and serve short submissions in reply to each other’s submissions in Order 2(a); and

(c)    final orders will be determined on the papers unless either party requests an oral hearing and the Court so orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

A.    Introduction

1    The applicant, Stephen Bradshaw, seeks damages and interest against the respondent, Emirates, for injury sustained when a suitcase fell out of an overhead luggage bin and struck him on the head during a flight from Dublin to Dubai. Damages are sought under Art 17 of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, 2242 UNTS 309 (Montreal Convention), which is given the force of law in Australia by s 9B in Pt IA (and is set out in Sch 1A) of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

2    Damages are sought in the sum of $43,600 made up as follows:

(1)    General damages (non-economic loss):                             $35,000

(2)    Out-of-pocket expenses, past and future, no more than:    $1,000

(3)    Lost wages:                                                                          $600

(4)    Lost economic opportunity past and future (cushion):         $7,000

3    Emirates accepts that Mr Bradshaw was struck by the suitcase and that he was to a limited extent injured by it, but disputes that he is entitled to any damages. That is on the basis that the injury caused him no economic loss and Pt 2 of the Civil Liability Act 2002 (NSW) (CLA) is picked up and applied as a federal law by ss 79(1) or 80 of the Judiciary Act 1903 (Cth) with the result that s 16(1) of the CLA applies. Under s 16(1), no damages may be awarded for non-economic loss for personal injury unless the severity of the non-economic loss is at least 15% of a most extreme case. It is not seriously in dispute that if that provision applies, the applicant will recover no damages for non-economic loss (i.e., general damages) because his injury is not such as to meet that threshold.

4    There are two related but distinct sets of issues in this proceeding. First, there are the evidentiary matters relating to the extent of the injury sustained by Mr Bradshaw on the flight from Dublin and what economic loss, if any, he suffered as a consequence. On any view, his injury and his losses are modest.

5    Secondly, there is the legal issue regarding the quantification and recovery of non-economic loss, or general damages, as a consequence of the injury. Some complexity arises from the potential inconsistency or conflict between the provisions of Pt 2 of the CLA, which as mentioned impose a threshold for the recoverability of general damages for personal injury, and Pt IA of the Carriers’ Act which does not but which by Art 21 of the Montreal Convention imposes an upper limit on economic and non-economic damages for bodily injury if the carrier establishes that it was not at fault. I will return to the details of these provisions.

6    Shortly before closing argument in the case, the judgment of Griffiths J in Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 was published. The judgment answers the critical legal issue that arises in this proceeding, namely whether or not s 16 of the CLA applies to a claim such as Mr Bradshaw’s under Art 17 of the Montreal Convention which is brought in a court exercising federal jurisdiction in, or “held”, in New South Wales. Grueff (at [111]) holds that s 80 of the Judiciary Act operates to pick up and apply s 16 of the CLA as “statute law in force in the State … in which the Court in which jurisdiction is exercised is held” (quoting from s 80) as surrogate federal law with the result that the threshold to recoverability applies. As mentioned, if applied to the present case, Mr Bradshaw would fail to recover any damages as he fails to meet the threshold requirement. Mr Bradshaw contends that the decision on that point is obiter and in any event plainly wrong and that I ought not to follow it. I will return to this question and Grueff later in these reasons.

B.    Background

7    It is first helpful to set out the relevant uncontroversial background matters and chronology of material events.

8    At the time of the incident in January 2019, Mr Bradshaw was 28 years of age.

9    On 1 January 2019, Mr Bradshaw was a passenger on Emirates flights from Dublin to Brisbane via Dubai.     

10    On the first leg of the trip, shortly before arrival into Dubai, a passenger, Mr Joseph Langan, sitting close to Mr Bradshaw, got up from his seat and opened the overhead luggage bin directly above where Mr Bradshaw was seated. While the overhead luggage bin was open, the aircraft banked and a nearly empty hard-shell 18 litre Trixie Trunki child’s suitcase fell out of the overhead luggage bin and struck Mr Bradshaw on the head.

11    The events that followed Mr Bradshaw being hit on the head by the suitcase are disputed in a number of respects. I will return to those when considering the evidence of each of the witnesses.

12    The aircraft landed in Dubai where Mr Bradshaw disembarked. A few hours later he boarded his connecting flight to Brisbane.

13    On 2 January 2019, Mr Bradshaw arrived in Brisbane. He was met at the airport by his girlfriend who took him to her home at Miami on the Gold Coast where he stayed for the next several days.

14    On 3 January 2019, Mr Bradshaw was visited at his girlfriend’s home and examined by Dr Shofiqur Rahman of House Call Doctor. Dr Rahman’s consultation notes record that Mr Bradshaw’s “Presenting Complaint” was “Sore throat and fever for 3 days”. There is no mention of any head injury, headache or referred pain. The results of Dr Rahman’s examination are recorded as:

Red congested throat

ear and nose – NAD

15    I take NAD to mean “no abnormality detected”, i.e., although his throat was red and congested there was no abnormality detected in his ears and nose. He was prescribed Keflex, an antibiotic.

16    On 5 January 2019, Mr Bradshaw was examined by Dr Rajesh Kumar of Miami Mermaid Bulk Billing Medical Centre on the Gold Coast. Dr Kumar’s consultation notes relevantly record the following:

Runny nose

sore throat x 1 week

cough

symptoms getting worse

…

Tonsils enlarged

pharynx red

chest clear

Reasons for visit:

URTI

discusse management

cold/flu tabs

…

Actions:

…

Prescription printed: Augmentin Duo Forte 875mg; 125mg Tablet 1 Twice a day

[sic]

17    URTI is short for upper respiratory tract infection. Augmentin Duo Forte is also an antibiotic.

18    As with Dr Rahman’s notes, Dr Kumar’s notes make no mention of any head injury, headache or referred pain.

19    On Sunday 6 January 2019, Mr Bradshaw drove himself to Sydney, alone, in order to return to his employment there on contract by Enermech Solutions as an electrician on the Westconnex project. He worked on a three weeks on, one week off rotation.

20    On Tuesday 8 January 2019, Mr Bradshaw returned to full-time work according to records of pay slips produced under subpoena to produce to Enermech.

21    On 21 January 2019, Mr Bradshaw emailed Emirates regarding the incident that occurred on the flight from Dublin to Dubai. The content of the email, Emirates’s reply and Mr Bradshaw’s further reply will be dealt with below.

22    On 10 July 2019, Mr Bradshaw consulted Dr David Evans at West Ryde Medical Centre for matters unconnected with the suitcase incident. No mention is made in Dr Evans’s consultation notes of any complaint possibly related to the suitcase incident.

23    On 16 October 2019, Mr Bradshaw was examined by Dr Endry-Walder, a qualified specialist general and trauma surgeon, on the instructions of Mr Bradshaw’s solicitors for the purpose of preparing a report for this proceeding.

24    On 19 December 2019, the proceeding was commenced in the Sydney registry of this Court.

25    On 15 July 2020, Mr Bradshaw was examined by Associate Professor Paul Spira, a consultant neurologist appointed on behalf of Emirates for the purpose of preparing a report for the proceeding.

C.    The evidence

26    Mr Bradshaw’s lay evidence consists of one affidavit sworn by him on 27 April 2020 and his oral evidence at the hearing. He also relies on the medical report of Dr Endry-Walder, who also gave evidence at the hearing.

27    Emirates’s evidence consists of three lay affidavits: Joseph Langan affirmed 3 August 2020, Hani Al Rachid sworn 12 August 2020 and Aleli Charissa Tagle sworn 12 August 2020, each of whom gave evidence at the hearing. Emirates also relies on medical reports by Associate Professor Spira dated 15 July 2020 and 19 November 2020. Professor Spira did not give oral evidence as he was not required for cross-examination.

28    A small volume of documents was tendered.

29    It is convenient to summarise the material evidence of each witness.

C.1     Stephen Bradshaw

30    Mr Bradshaw said that about 20 minutes before arrival into Dubai, the seatbelt sign was switched on as the plane had begun its descent. A passenger seated opposite him, across the aisle, rose from his seat and opened the overhead luggage bin directly above where he was seated. The passenger engaged in conversation with a cabin crew member, leaving the luggage bin open, when the aircraft banked and a suitcase “flew out of the overhead bin and struck me on the right side of my head causing me to sustain serious injuries.”

31    Mr Bradshaw said that he was struck on his right temple by the suitcase when it fell which caused him to be “severely dazed”. He said that he slumped to his left, was stunned and saw black spots. He said that he held his head between his hands and immediately had a terrible headache.

32    Mr Bradshaw could not recall being asked by Mr Langan, whose child’s suitcase it was, how he was, saying that Mr Langan apologised and a female cabin crew member asked him if he was okay.

33    Mr Bradshaw said that the female cabin crew member gave him ice wrapped in tissue paper which he applied to his temple, but he denied being offered Panadol by the cabin crew. He did not recall a male cabin crew member asking him how he was feeling, whether he was dizzy or to grade his pain on a scale of 1 to 10.

34    Mr Bradshaw said that after he disembarked from the aircraft in Dubai his headache became excruciating. He approached the Emirates helpdesk at Dubai airport where nurses were called for him. He said he was advised that there was not much that could be done for him apart from sending him to hospital, which he did not want to do as he would then miss his flight to Brisbane.

35    He said that his headache was severe and requested the helpdesk that he be upgraded to business class which would enable him to lie down during the 14 hour flight to Brisbane. He was informed that that was not possible. He said in his affidavit that all he wanted at that stage was to get to Brisbane and receive medical treatment.

36    After take-off from Dubai, Mr Bradshaw said that his “searing headache … became increasingly worse”. He tried to put up with the pain but eventually mentioned it to a female member of the cabin crew who, he said, agreed to allow him to lie down on the floor of the plane at the rear near the toilets. He said a crew member gave him a pillow and a blanket and that he lay there “for multiple hours until the descent into Brisbane started”.

37    Mr Bradshaw said that after he had been lying on the floor for about an hour, and his symptoms were not relieving, he mentioned to the same member of the crew who had directed him to lie there that he had suffered a head injury on the previous flight. He was thereafter attended to by a male cabin crew member who checked his blood pressure which was found to be low. Whilst still lying behind the last row of seats near the toilets, he was given an oxygen mask to breathe through. He denied that he was given oxygen whilst in his seat. He said that he was also provided Panadol while lying at the back of the plane.

38    Mr Bradshaw said that prior to landing in Brisbane, he was allowed by the same male crew member to sit in a seat in the first class cabin for the purposes of the landing so that he could be first off the plane.

39    In his affidavit, Mr Bradshaw said that he arranged for Dr Rahman to visit him “because I was concerned about my injuries.” He said that he told Dr Rahman about the accident on the plane and his severe headache, but that Dr Rahman was only interested in treating him for a sore throat and raised temperature. In that regard, Mr Bradshaw said that prior to boarding in Dublin he was suffering from “a bit of a cough”.

40    Mr Bradshaw said that he remained in Brisbane (or, more accurately, the Gold Coast) for “several days” to rest and although his headache subsided he had restriction of movement and continuous pain and aching in his neck.

41    Although in his affidavit Mr Bradshaw said that he drove to Sydney on Thursday, 3 January 2019, that is obviously incorrect because that was not “several days” after having arrived back in Brisbane and he saw Dr Kumar on the Gold Coast on Saturday, 5 January 2019.

42    Mr Bradshaw accepted in cross-examination that he drove to Sydney the next day, i.e., Sunday, 6 January 2019. He drove the whole way on his own.

43    Although in his affidavit he said that he “eventually” returned to work on 9 January 2019 after losing three days’ work, he accepted in cross-examination that he returned to work on Tuesday, 8 January 2019. I infer that he may have missed one day of work, the Monday, but it was not established that that was because of the suitcase incident rather than his flu-like illness.

44    Mr Bradshaw stated in his affidavit that after several weeks he was still concerned about the ongoing injury to his neck and the continuous pain and aching and difficulties at work, so he wrote to Emirates by email “requesting compensation and also providing details of my flight”. He said that the email was sent on 21 January 2019 – the version that was produced in evidence does not reflect a date but the parties proceeded on the basis that it is a true version of what was sent on that day.

45    The email states that its purpose is to “express how displeased I am with the treatment I received from the airline” and then sets out an account of what occurred which is for the most part not materially different from what Mr Bradshaw subsequently stated in his affidavit. It nevertheless has a few pertinent features:

(1)    Other than complaints of a headache, nausea and needing oxygen at different points on the flights and in transit in Dubai, it makes no complaint about any ongoing effects of the incident or of any injury, or of having had difficulties at work or having had to miss work.

(2)    It ends with the following:

In summery I am shocked and disappointed with my entire experience. I chose to fly with Emirates due to the great reputation the airlines has with its customers. Unfortunately this was not my experience and would be very reluctant to fly with the airline in the future.

For you’re information the incidence’s on both flights was recorded by cabin crew.

I would appreciate an appropriate responsive from you as a matter of urgency. [sic]

46    Emirates replied to Mr Bradshaw by email dated 14 February 2019 in which it requested that he forward copies of medical bills/receipts along with medical reports.

47    On 10 March 2019, Mr Bradshaw responded by email as follows:

As outlined, my experience fell short of what I would have expected from Emirates and proved to be a very painful and uncomfortable journey.

I note your request for medical bills/receipts and reports.

Whereby I did seek and receive medical attention on my return to Sydney, the cost of this treatment was covered by my medical insurance and therefore is not the focus of my engagement with you.

I sense from the tone of your mail that your assumption might be that I intended to seek redress through the legal process. This was not the case.

My intention is for Emirates to understand the circumstance of my dissatisfaction. A failure to adhere to overhead bin procedures was the catalyst for this incident. The care and attention I received after the incident could not be described as good customer service. I was left feeling like a nuisance to the crew and not a valued guest.

I would hope that my experience and feedback to you could be used to help crew understand and improve their response to any similar incidents in the future.

I now live in Australia and regularly return home to Ireland to visit family and friends. In fact it was on the recommendation of my parents, who incidentally were both long term employees of Aer Lingus that I chose to use Emirates for the first time on this trip. The many customer awards received by Emirates also contributed to my decision.

Unfortunately my experience on this occasion did not live up to the Emirates promise.

I would like to think that I could enjoy the true Emirates hospitality and guest experience in the near future.

48    Once again, Mr Bradshaw made no complaint of any lasting injury, pain or difficulty, or of having missed work. Aside from mentioning that he received “medical attention” on his return to Sydney, this complaint is limited to having experienced “a very painful and uncomfortable journey.”

49    Mr Bradshaw said in his affidavit, which it will be recalled was in April 2020, that he has continued to suffer headaches which have been less frequent, and the pain and aching in his neck depends on what task he undertakes. For example, as an electrician he is required to carry items on his shoulders, climb ladders and work in confined spaces. Most of his work is overhead with him constantly looking up which causes him to suffer “very bad neck pain”. He says that on occasions the neck pain radiates towards the left shoulder blade. Mr Bradshaw says that when he is working in confined spaces or performing overhead work, which aggravates the neck pain, he has to take rest breaks.

50    Mr Bradshaw says that he wishes to maintain his employment but cannot take sick leave as a contract worker. He says that he is concerned that his performance as an electrician is being diminished. He has taken the occasional day off work which has been sporadic as he has tried to work with his “disability”. It may be noted that he did not identify any particular day that he had taken off and produced no records to support any claim in that regard.

51    Mr Bradshaw’s subpoenaed work records indicate that in the three weeks following his return to work he worked 56 hours, 66 hours and 64 hours respectively, and he gave oral evidence that he was doing his normal job during those weeks. He accepted that he did not go to a doctor during that period. He confirmed in cross-examination that by June 2019, five months after the incident, he had increased his hours at work to the point that he was working 68 hours a week.

52    In his affidavit he said that since the incident he has been unable to return to playing “social soccer” and cannot do repetitive weights anymore at the gym, but can only do light weights. In oral evidence, Mr Bradshaw explained that his reference to social soccer was a reference to an indoor football tournament that he played each week. He told Dr Endry-Walder that he was not able to return to football because he could not head the ball. However, he accepted in cross-examination that he had played in an outdoor football game at a charity event in February 2019 although he said that he only played for “maybe 10 minutes”. He said he could not remember being injured on that occasion.

53    Mr Bradshaw was then shown the record of the consultation that he had with Dr David Evans at the West Ryde Medical Centre on 10 July 2019. The record reflects that he complained of sharp pain in his right great toe “after foot to foot injury at soccer” five months previously (i.e., in January/February 2019). X-rays showed a healed fracture and he was referred to a specialist, Stuart Riley. It is not apparent whether he attended on the specialist.

54    Mr Bradshaw said in his affidavit that by way of treatment for his sore neck as a consequence of his head injury, he takes pain-killing medication on a regular basis. Further, every fortnight or so for at least 12 months after the incident he had a massage of his head, neck and shoulders which assisted in relieving pain. He said that he did not keep receipts as he paid cash. He says that he tries to rest if his neck pain is aggravated and he is concerned that it has not resolved since the incident in January 2019.

C.2     Joseph Langan

55    Mr Langan was on the same flight from Dublin to Dubai along with his wife and two-year-old daughter. Mr Langan recalled that he sat one row ahead of Mr Bradshaw, across the aisle.

56    Mr Langan said that around an hour before the aircraft commenced its descent into Dubai, which was before the seatbelt light was activated, he stood up to retrieve an item from a bag he had stored in the overhead locker.

57    Almost immediately after he had opened the locker, the aircraft banked and a piece of his daughter’s luggage fell out of the overhead locker and onto Mr Bradshaw. Mr Langan said the luggage was a Trunki brand of suitcase designed for children. It has a hard shell and weighed 1.7kg empty according to the manufacturer’s specifications annexed to his affidavit. He says when the luggage fell it was almost empty because it had primarily been used to carry his daughter’s soft toys, most of which had been removed from the suitcase so she could have them during the flight.

58    Mr Langan said after the suitcase hit Mr Bradshaw he approach him and said words to the effect of “I am sorry, are you ok?”, to which Mr Bradshaw replied “I am fine, don’t worry”.

59    Mr Langan says in his affidavit that he saw members of the cabin crew approach Mr Bradshaw immediately after the incident and attend on Mr Bradshaw on a number of occasions after the incident.

C.3     Hani Al Rachid

60    Mr Al Rachid has worked as a member of cabin crew for Emirates for approximately 13 years and has been a cabin supervisor since April 2018. He was working as cabin supervisor in economy class on the flight from Dublin to Dubai.

61    Shortly before the aircraft commenced its descent into Dubai, Mr Al Rachid was informed by a member of the cabin crew that a passenger had been struck by an item of luggage that had been dropped by a passenger in the row in front of him. Mr Al Rachid did not witness the incident himself.

62    Mr Al Rachid said in his affidavit that he immediately went to the passenger, Mr Bradshaw, at his seat and spoke with him, asking him if he was okay and how his pain felt on a scale of 1 to 10, to which Mr Bradshaw replied “5 out of 10” and that he was not feeling dizzy. Mr Al Rachid said in oral evidence that it was standard procedure to ask a passenger to grade their pain in that way. He observed that Mr Bradshaw had some slight redness on his forehead.

63    Mr Al Rachid said he provided Mr Bradshaw with a small water bottle and ice wrapped with towels which he observed that Mr Bradshaw applied to his forehead. He also said he offered Mr Bradshaw some Panadol, which Mr Bradshaw refused because he had some with him.

64    On several occasions, Mr Al Rachid said he attended on Mr Bradshaw, including asking him if he wanted a doctor to be arranged to meet him at the airport when he landed in Dubai. According to Mr Al Rachid, Mr Bradshaw said there was no need, it was a bit of a headache and that he would be fine.

65    When the aircraft landed, he said he returned to Mr Bradshaw and asked again if Mr Bradshaw wanted a doctor to meet him at the airport, which Mr Bradshaw declined because of his connecting flight. According to Mr Al Rachid, Mr Bradshaw said it was only a bit of a headache and that he was not dizzy or nauseous.

66    Annexed to Mr Al Rachid’s affidavit is a “KIS Report”. Mr Al Rachid explained that whenever an incident occurs on an Emirates flight, the cabin crew are required to complete a KIS Report. The annexed KIS Report relevantly states:

Description:

-While the customer who was seated on 23D securing her bags for landing on of her bag fell off on the customer who was occupying 24C and hit him on his forehead. -The forehead looked bit red. - Customer disembark unaided.

Purser Action:

-Applied ice wrapped with towels on his forehead. -Gave him a small water bottle. -He stated his pain is 5 on a scale of 10 no dizziness. -Offered him panadol however he denied claiming he has panadol. -Offered him medical assistance and informed him that we can arrange a doctor to check him on ground however he denied stating its only a bit of headache where the bag hits him. -After landing went to the customer and again offered him to be checked with the doctor and he again denied stating “I’m fine” -Purser was informed.

[sic]

67    This report is the most contemporaneous record of the events that took place on the flight. Mr Al Rachid said that he prepared the report either on the flight or on the same day before they “close the flight”. The KIS Report is stated to have been “Created from KIS on 06 Jan 2019”, notwithstanding that the incident occurred on 1 January 2019 – it is unclear what significance the 6 January 2019 date has, if any.

68    Mr Al Rachid explained that he wrote the report, including in respect of actions taken by him, because he was the supervisor of the economy class cabin. He was not the purser who is in charge of the whole flight.

C.4     Aleli Charissa Tagle

69    Ms Tagle is a cabin supervisor with Emirates and has worked in that role since August 2012. Ms Tagle was working in this role in the rear cabin of economy class which is on the lower deck of the Airbus A380 aircraft on the flight from Dubai to Brisbane.

70    Ms Tagle said that at the commencement of the descent into Brisbane the passenger in seat 81K, who Ms Tagle says was Mr Bradshaw, pressed the call button and said to her that he felt as though he was about to faint and that he had been hit by a piece of luggage on his previous flight.

71    Ms Tagle said that she offered Mr Bradshaw oxygen from the oxygen machine, to which Mr Bradshaw said “yes”. She said she administered the oxygen and gave Mr Bradshaw two Panadol tablets. This was all done with him in his seat.

72    Ms Tagle said that prior to the commencement of the descent into Brisbane, Mr Bradshaw had not communicated to her that he was suffering from any medical condition or advised her of the need for medical assistance.

73    According to Ms Tagle, the usual practice if a passenger advised any crew member working in economy of a medical concern was that the cabin crew member would advise her of this so that she could prepare a KIS Report. Annexed to her affidavit was a copy of the KIS Report. The relevant parts of the entry, which has her name as the relevant staff member, is extracted below:

74    Ms Tagle says she was not advised by any member of the cabin crew that Mr Bradshaw had told them of any medical issues and did not have any conversations with Mr Bradshaw apart from the one described above.

75    Ms Tagle said in her affidavit that for safety reasons passengers are not permitted to lie on the floor and if such a thing happened, Ms Tagle would expect to be informed by cabin crew. She said it would be a serious breach of Emirates safety protocols for cabin crew to stand by while a passenger lay on the floor.

76    The KIS Report annexed to Ms Tagle’s affidavit contains an entry for another passenger who is recorded as having requested to lie down. Ms Tagle said that this request was rejected, however the KIS Report does not confirm that one way or the other.

77    Ms Tagle said she did not see Mr Bradshaw lying on the floor and she would have put it in the KIS Report if she had seen that occur.

78    With regard to Mr Bradshaw sitting in a first class seat, Ms Tagle said that she is not permitted to transfer a passenger to a premium cabin, such as business or first class. Only the captain can do that, and only in the case of an exceptional emergency. She also said that first class was full on that flight. The KIS Report records that the “Flight was full with an exception of one seat, 72G”. As Mr Bradshaw was in seat 81K in the rear section of economy class, and first and business class were upstairs, I infer that 72G (i.e., nine rows in front) was also in economy and accept Ms Tagle’s evidence that there was no available seat in first class to have seated Mr Bradshaw for landing as he claimed.

C.5     Dr Endry-Walder

79    As mentioned, Mr Bradshaw was examined by Dr Endry-Walder on 16 October 2019. That is also the date of Dr Endry-Walder’s report. The report includes the following relevant matters.

80    The report sets out an account of the incident given by Mr Bradshaw which is largely consistent with Mr Bradshaw’s affidavit and email of complaint to Emirates.

81    In the section of the report headed “PRESENT CONDITION AND COMPLAINT”, it is recorded that Mr Bradshaw advised as follows:

“The headaches has been definitely less frequent” more recently.

“The neck pain depends on what tasks I do, carrying things on my shoulders, climbing ladders, most of my work is overhead, I have to constantly look up, I can get very bad neck pain.”

“Sometimes the neck pain radiates towards the left shoulder blade.”

82    In the section of the report headed “PHYSICAL EXAMINATION”, the report records the following:

Examination of the head highlighted no lumps or bumps, no specific focal tenderness.

The neck was muscular, there was some tension to the posterior cervical musculature.

He had a virtually physiological range of flexion and extension of the neck in an active manner, but while attaining 90 degrees rotation of the head to the left, could not get past 70 degrees to the right on several attempts.

83    In the section of the report headed “OPINION”, after again repeating various matters that Mr Bradshaw had reported, the report included the following:

One would like to think that the problem is of a muscular-ligamentous nature, possibly some enthesitis [i.e., inflammation of ligament attached to bone] residual from the forceful tilting of the head to the left.

Should his symptoms fail to improve by the end of the year, 12 months after the incident, a Bone Scan may be advisable to see if there is some associated facet joint inflammation residual from the accident ($800.00).

He has not had any physical therapy for his injury and perhaps a period of such rehabilitation, say, two sessions a week over a period of four to six weeks ($80.00 a session) should be tried.

84    In oral evidence, Dr Endry-Walder confirmed that the recorded range of rotation of the neck referred to above is considered normal.

85    Dr Endry-Walder agreed that an upper respiratory tract infection is often accompanied by a headache, and said that the headaches that Mr Bradshaw reported that he suffered in the period before he recovered from the upper respiratory tract infection could have been related to the blow to the head or the viral infection, or both; it is a matter of speculation as to which it is. Also, in the normal course one would expect any headache caused by the impact of the suitcase to settle over a period of time.

86    As will be seen when I summarise Associate Professor Spira’s evidence in the next section, Mr Bradshaw displayed “full” cervical mobility when examined by Professor Spira in July 2020. Dr Endry-Walder agreed that that was a greater extent of mobility than Mr Bradshaw had shown when he was examined by Dr Endry-Walder, and that that is consistent with Mr Bradshaw having recovered from any soft tissue musculoligamentous strain to his cervical spine.

C.5     Associate Professor Spira

87    As mentioned, Associate Professor Spira examined Mr Bradshaw on 15 July 2020. He prepared two reports, one on that day and the other on 19 November 2020.

88    In the 15 July 2020 report, the following pertinent matters are recorded.

89    The report sets out a history of the incident given to Professor Spira which is largely consistent with Mr Bradshaw’s affidavit and email of complaint to Emirates, although it does contain some flourishes.

90    In respect of the physical examination, the report records that Professor Spira could detect no abnormalities in the area of the injury to palpation. The long tract examination was also entirely normal as were the reflexes and the plantar responses were flexor. Cervical mobility appeared full, although Mr Bradshaw complained of some discomfort in the left suboccipital regions at the end of range in left lateral flexion.

91    In the “OPINION” section of the report, Professor Spira recorded as follows:

Mr Bradshaw sustained a localised blow to the right anterior temporal region when this was struck by a hard case falling from an overhead locker on 1 January 2019. He was dazed by the blow and suffered a strain injury of his neck. The events over the ensuing hours, including during the flight between Dubai and Brisbane were largely expressed as a generalised severe headache and, from Mr Bradshaw’s comments, I have little doubt that that this was aggravated by Mr Bradshaw’s extreme concern about the possibility that he may have suffered intracranial damage as a result of the blow. This was not in fact the case and he appears to have had only soft tissue injuries to the right temple and musculoligamentous trauma to the left suboccipital musculature in the subject incident.

The role of the injury in the events which followed immediately after his return to Australia is obscured by the fact that he contemporaneously he suffered an upper respiratory tract infection which, according to his history, commenced prior to his departure from Dublin. He had features consistent with a flu-like illness. … It is likely that the malaise Mr Bradshaw developed in relation to the febrile illness contributed to his headache and to the response he subsequently had to the trauma.

…

It appears that the only residual complaint experienced by Mr Bradshaw has been the tendency to cervical discomfort triggered by efforts involving his nuchal musculature. This is most likely of musculoligamentous origin although I note that no radiological films have been obtained and I believe that he at least requires a CT scan of cervical spine to see if there is any evidence of facet joint arthropathy contributing to his discomforts. I frankly doubt that this will prove to be the case as the form of injury and the pain described by Mr Bradshaw suggest a soft tissue origin. He may benefit from the use of muscle relaxants as well as from a short course of stretching exercises in attempt to alleviate the neck pain.

…

e.     I do not believe that Mr Bradshaw’s ongoing complaint of neck discomfort will significantly affect his performance of his work activities, and I note that he has been working at full-time from about a week after he returned to Australia in January 2019.

f.     I do not believe that Mr Bradshaw’s injuries sustained during the flight from Dublin to Dubai have had a significant effect on his capacities to perform domestic duties. He is involved in physically demanding work, which he executes effectively.

g.     Mr Bradshaw remains a little anxious about playing soccer as he fears that heading the ball may accentuate his neck disorder. I feel that he has to be reassured in this regard and the CT scan of cervical spine will go a long way to doing so. I would not restrict his sporting activities if the CT scan proves normal.

[sic]

92    The report dated 19 November 2020 is only one page. Professor Spira appears to have been furnished with the affidavits in the proceeding in respect of which his further opinion was sought. His report relevantly records:

There seems to have been little in the way of local damage to the skin at the time and, although it is possible that the subsequent development of headache may have related to the blow to the temporal region, I noted that Mr Bradshaw was in the early stages of a viral respiratory tract infection which had its onset prior to his boarding the aircraft and was significantly symptomatic by the time he landed in Brisbane on 2 January 2019. I felt that most of his symptoms thereafter related to that respiratory tract infection.

…

Overall it is my view that Mr Bradshaw sustained only a moderate head injury from which no major long-term sequelae were expected. It remains to be seen whether there is any cervical spine abnormality demonstrated but, as I indicated in my original report, I doubt that this will prove to be the case and it is far more likely that Mr Bradshaw sustained merely soft-tissue injuries from which he was expected to have made a full and rapid recovery.

D.    Findings on the evidence

93    It is not in dispute that the incident with the suitcase caused an exacerbation of Mr Bradshaw’s pre-existing headache or caused the headache and that on the subsequent flight to Brisbane it, combined with his flu-like illness, became so severe that the applicant told Ms Tagle that he thought he was about to faint, and he was given oxygen.

94    The area of dispute centres on Mr Bradshaw’s claims that he developed neck pain the day after he returned to Australia and that he continued to suffer from headaches and continuous pain and aching in the neck region.

95    There are a number of respects in which Mr Bradshaw’s evidence is contradicted by the evidence of other witnesses. For the most part, these conflicts are not significant to the facts necessary to be found for the purpose of deciding his claim, but they are relevant to the question of his credit. The points of conflict include the following.

96    Mr Bradshaw said that the incident occurred after the “fasten seat belts” warning light had been activated for the descent into Dubai, whereas Mr Langan and Mr Al Rachid say that the incident occurred at an earlier time. Mr Bradshaw said that the overhead bin was left open while Mr Langan and a member of the cabin crew had a conversation, but Mr Langan said that that did not occur.

97    Neither Mr Langan nor Mr Al Rachid were shaken in any way in cross-examination. I was impressed with their evidence and their straightforward approach to answering questions. I accept their evidence, and accept as reliable what Mr Al Rachid recorded in the KIS report. That included that on inquiry Mr Bradshaw scaled his pain as being 5/10, which is less severe than what Mr Bradshaw subsequently said it was. I am left with the impression that Mr Bradshaw was embellishing his version in respect of the seat belt light being on, a cabin crew member having a conversation with Mr Langan when the overhead bin was open and doing nothing about it, him not being offered Panadol and the extent of his pain in order to support his claim.

98    Sharper differences emerge between the versions of the witnesses with regard to the flight from Dubai to Brisbane. I accept Ms Tagle’s evidence that it is against Emirates’s procedures for a passenger to lie down on the floor of the aircraft and that neither she nor the other members of the cabin crew would have allowed that. Also, I accept that had Mr Bradshaw lain on the floor for the long period of time that he claims that would in all probability have come to Ms Tagle’s attention. I accept her evidence, and what was recorded in the KIS report, that Mr Bradshaw was given oxygen and Panadol at his seat, and not when he was lying on the floor. I also accept her evidence that he was not moved to first class; not only would that have been against procedures given that his situation was not a grave emergency, but the evidence is that there was no available seat in first class.

99    Once again, I am left with the clear impression that Mr Bradshaw embellished his version of what occurred on the flight in order to bolster his complaint against Emirates. Once he had recorded that embellished version in his email of 21 January 2019, it was difficult for him to resile from it and it got reproduced in his affidavit. The terms of that email indicate that its objective was to try and secure an upgrade or a discount on a future flight because Mr Bradshaw was “displeased … with the treatment [he] received from the airline”; it was not because, as claimed by him in his affidavit, he “was still concerned about [his] ongoing injury to [his] neck and the continuous pain and aching and difficulties at work”. Those matters are not even mentioned in the email.

100    Insofar as the extent or severity of Mr Bradshaw’s injury is concerned, it is telling that neither Dr Rahman (on 3 January) nor Dr Kumar (on 5 January) recorded any complaint about a head injury or sequelae such as neck pain. I do not accept that Mr Bradshaw told them about the head injury and that they did not record it. In particular, it is inconceivable that had Mr Bradshaw called Dr Rahman because, as claimed by him in his affidavit, he “was concerned about [his] injuries”, Dr Rahman would have made no mention of that in his consultation notes. Those notes record that Mr Bradshaw’s presenting complaint was “sore throat and fever for 3 days”.

101    It is also significant that Mr Bradshaw played football, albeit briefly, in February 2019 despite saying in his affidavit that he had had to give it up, and that he failed to mention any ongoing injury or difficulty as a consequence of the incident in his 21 January 2019 email to Emirates. Even when Emirates invited him to forward copies of medical bills or receipts and medical reports, Mr Bradshaw failed in his reply to mention any medical problem, confining his complaint to “a very painful and uncomfortable journey.” When pressed on whether he thought that he should have taken that opportunity to tell Emirates about the neck injury and ongoing problems, his answer was: “I can’t answer that question. I can’t get – I have not done so in this response.”

102    When the applicant consulted Dr Evans on 10 July 2019 with a complaint of pain in a toe following an injury playing football some five months earlier, he made no complaint of ongoing head or neck pain.

103    Perhaps the most significant consideration in rejecting Mr Bradshaw’s contention that he was adversely affected in his work over a long period of time, including having had to miss work, by the injury suffered as a result of the incident is that he never sought any medical or physiotherapeutic advice or treatment for the injury or any referred pain. It is clear from the fact of the three consultations with general practitioners in the period January to July 2019 that Mr Bradshaw was not averse or unable to consult medical practitioners. I consider that if he really had the pain arising from, and concerns about, the injury that he claims, then he would have sought advice or treatment for it and that would be reflected in the consultation notes.

104    Mr Bradshaw appears to have worked full hours in the weeks following his return to work, and has not established that he missed any work as a consequence of the injury. If indeed his return to work in the week of 7 January 2019 was delayed, which is not established, that is equally likely to have been on account of his flu-like illness. His claim to have “taken the occasional day off work which has been sporadic” is too unspecific and undocumented to be accepted as having occurred as a consequence of the suitcase falling on his head, even if true.

105    Dr Endry-Walder’s diagnosis of a musculoligamentous injury, and Professor Spira’s acceptance of that diagnosis, depended on what Mr Bradshaw had told them, his physical examinations appearing normal. However, in view of the matters canvassed above there is considerable doubt about Mr Bradshaw’s complaints of any sequelae beyond a headache caused by being struck by the suitcase. That headache was then subsumed in the symptoms of his flu-like illness and settled in the ordinary course.

106    In the circumstances, I find that as a result of being struck on the head by the suitcase Mr Bradshaw suffered a headache which for a period of time may have been acute but which had by 3 January 2019 (i.e., one day after it set in) settled such as to not warrant mention to Dr Rahman. I do not accept that he suffered any sequelae thereafter. The result is that Mr Bradshaw suffered pain and some loss of amenities of life, in the sense that when he was in Dubai, on the flight to Brisbane and during the first day or two back in Brisbane he was limited to some extent by his injury in what he could do.

107    I am not persuaded that any economic loss is established.

E.    What measure of damages?

E.1     The Montreal Convention

108    As mentioned, Mr Bradshaw’s claim is made under Art 17 of the Montreal Convention which is given the force of law in Australia by s 9B of the Carriers’ Act. It was introduced into the Carriers’ Act by the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth). The Explanatory Memorandum (EM) to the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Bill 2008 (Cth) explains (at 1) that the Montreal Convention provides “a modern and consolidated framework for the liability of air carriers for injury or death of a passenger, loss or damage to cargo and baggage, and damage caused by a delay in the scheduled arrival of a passenger, baggage and freight, which occurs in the course of international air carriage.”

109    The EM explains that the Montreal Convention will eventually replace the existing international arrangements for carriers’ liability contained within the Warsaw System. That system consists of the Convention for the Unification of Certain Rules for International Carriage by Air, done at Warsaw on 12 October 1929 (the Warsaw Convention) and the following amending instruments: The Hague Protocol (1955), the Guadalajara Convention (1961), the Guatemala City Protocol (1971), the 1975 Additional (Montreal) Protocols Nos 1, 2 and 3, and Montreal Protocol No. 4 (1975). Parts II to IIIC of the Carriers’ Act give effect to these components of the Warsaw System in various combinations to the extent that they are still applicable.

110    The Montreal Convention is implemented in Australia through the insertion of a new Pt IA into the Carriers’ Act which is modelled on the existing Pt II (EM at 2). According to Maclean D (ed), Shawcross & Beaumont: Air Law (LexisNexis, 4th ed, 2021) (Issue 176, A-111), the Montreal Convention has entered into force in 128 countries.

111    There is no dispute that Mr Bradshaw’s claim is subject to the Montreal Convention.

112    The relevant sections of the Carriers’ Act in the present case are the following:

(1)    Section 9B, titled “The 1999 Montreal Convention to have force of law”:

Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage.

(2)    Section 9E, titled “Liability in respect of injury”:

Subject to section 9F, 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.

113    Schedule 1A of the Carriers’ Act sets out the text of the Montreal Convention. Provisions relevant to this proceeding include the following:

(1)    Article 17, titled “Death and Injury of Passengers – Damage to Baggage”:

1.    The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

(Rules 2-4 deal with baggage.)

(2)    Article 21, titled “Compensation in Case of Death or Injury of Passengers”:

1.    For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability.

2.    The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that:

(a)    such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b)    such damage was solely due to the negligence or other wrongful act or omission of a third party.

(3)    The sum of 100,000 Special Drawing Rights is subject to review pursuant to Art 24. The amount was increased to 113,100 SDRs on 30 December 2009 and to 128,821 SDRs on 28 December 2019. The applicable limit in this case is accordingly 113,100 SDRs (if calculated with reference to the date of the accident) which at today’s value (see Carriers’ Act, s 9) is equivalent to approximately $216,000, or 128,821 SDRs (if calculated with reference to the date of judgment) which at today’s value is equivalent to approximately $242,000.

(4)    Article 25 provides that a carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in the Convention, or to no limits of liability whatsoever.

(5)    Article 26 provides that any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in the Convention shall be null and void.

(6)    Article 27 provides, amongst other things, that nothing in the Convention shall prevent the carrier from waiving any defences available under the Convention.

(7)    Article 29, titled “Basis of Claims”:

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non‑compensatory damages shall not be recoverable.

114    As an international treaty, it would be wrong to read the Montreal Convention as if it reflected some particular cause of action or body of learning that is derived from, say, the common law: Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189 at [32] per Gleeson CJ, Gummow, Hayne and Heydon JJ. The guiding principles of treaty interpretation are found in Part III of the Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980). Relevantly, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty (Art 27). Also, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose (Art 31(1)). International treaties should be interpreted uniformly by contracting states: Povey at [25]. Where, as here, the relevant international instrument is given the force of Australian law in its full terms, it is the Convention properly interpreted and understood as an international instrument that is given the force of Australian law: Gulf Air Company GSC v Fattouh [2008] NSWCA 225; 251 ALR 183 at [25] per Allsop P, Hodgson and Campbell JJA, concurring.

115    Examination of the history of the Warsaw Convention and its amending Protocols, and now the Montreal Convention, demonstrates that the terms of the Convention represent a compromise between the interests of claimants and air carriers. As a critical component of that compromise, the Montreal Convention and its predecessors impose strict liability on air carriers, removing the need for claimants to prove negligence to complete their causes of action. See Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32; 93 NSWLR 438 at [6] per Macfarlan JA, Ward and Gleeson JJA agreeing.

116    Another important component of the compromise is the limits of liability. Insofar as the Montreal Convention is concerned, that includes the two-tier system set out in Art 21, including the regular review and adjustment of the limits (Art 24). The history of the discussions and initiatives that led to that system being adopted is canvassed in Shawcross & Beaumont: Air Law (Issue 176, [218]-[219]). See also Brannock v Jetstar Airways Pty Ltd [2010] QCA 218; 273 ALR 391 at [21]-[24] per White JA, Fraser JA agreeing.

117    Discussing Arts 17 and 24 of the Warsaw Convention, which are materially the same as Arts 17 and 29, respectively, of the Montreal Convention, Lord Hope of Craighead for the House of Lords in Sidhu v British Airways Plc [1997] AC 430 at 447B explained as follows:

The structure of these two provisions seems to me therefore to be this. On the one hand the carrier surrenders his freedom to exclude or to limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 – which is the issue in the present case – seems to be entirely contrary to the system which these two articles were designed to create.

118    Sidhu concerned whether an action against a carrier relating to international carriage by air could be brought other than within the terms of the Warsaw Convention. Lord Hope reasoned as follows at 453C-454B:

I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals – and the liability of the carrier is one of them – the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.

…

[The Convention] was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity.

…

The domestic courts are not free to provide a remedy according to their own law, because to do this would be to undermine the Convention. It would lead to the setting alongside the Convention of an entirely different set of rules which would distort the operation of the whole scheme.

119    See also El Al Israel Airlines Ltd v Tseng (1999) 525 US 155 at 175-176, Stott v Thomas Cook Tour Operators Ltd [2014] AC 1347 at [29]-[30] and [34] per Lord Toulson JSC (specifically with respect to the Montreal Convention) and Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14; 266 CLR 212 per Kiefel CJ, Bell, Keane and Edelman JJ at [10]-[11] to similar effect.

120    It is well recognised that the claim under Art 17 is an independent statutory cause of action and is not a claim in either contract or tort. When a claim is brought under Art 17, the claimant’s rights flow purely and solely from Pt IA of the Carriers’ Act: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251 at [6] and [9] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ; Air Link Pty Ltd v Paterson [2005] HCA 39; 223 CLR 283 at [13] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

121    A question might be thought to arise as to whether non-economic loss, i.e., general damages, is claimable under Art 17, in particular bearing in mind the terms of Art 29 that in any action for damages “punitive, exemplary or any other non-compensatory damages shall not be recoverable”. The question thought to arise is thus whether general damages are non-compensatory. But there is no doubt that at common law general damages “are to be awarded as fair compensation to a particular individual” for non-pecuniary loss and are therefore compensatory: Teubner v Humble [1963] HCA 11; 108 CLR 491 at 507 per Windeyer J.

122    The Court of Justice of the European Union in Walz v Clickair SA (Case C-63/09) (2010) 45 Eur Tr L 361 held (at [39]) that in relation to loss of baggage, recoverable “damage” includes “both material and non-material damage”. In view of the Court’s reasoning (at [25]) that, in the absence of any indication to the contrary in the Convention, the term “damage” must bear an identical meaning throughout Ch III of the Montreal Convention, “non-material damage” would be recoverable for personal injury.

123    It was also held in Di Falco v Emirates [2018] VSC 472; 57 VR 394 at [33] per Keogh J that recoverable damages under Art 17(1) for bodily injury include damages for pain and suffering and loss of enjoyment of life.

124    In the circumstances, I conclude that general damages for pain and suffering and loss of amenities of life are recoverable under Art 17(1) of the Montreal Convention.

125    There is no dispute that the suitcase incident was an “accident” and that Mr Bradshaw suffered “bodily injury” as a consequence thereof within the meaning of Art 17. As to what is an “accident” under Art 17, see Povey at [32]-[36]. As to the meaning of “bodily injury”, see Pel-Air at [24]-[51].

126    The question in this case is whether Mr Bradshaw’s claim for non-economic loss is subject to s 16 of the CLA. It is to that Act that attention must now shift.

E.2     The Civil Liability Act (NSW)

127    As is well known, the CLA was enacted in an environment where it was widely considered that the law of negligence had gone too far in the circumstances in which it imposed liability and in the amounts that it awarded. There was, in particular, a problem in the area of public liability insurance which was highlighted by the collapse of the HIH Insurance Group in March 2001. That led, in NSW, to a two-staged process of reform of the law relating to civil liability. The first stage was the enactment in mid-2002 of the CLA. The second stage, which followed the report of the Ipp Committee that was published in September 2002, was the enactment of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (CLA Amendment Act). See Villa D, Annotated Civil Liability Act 2002 (NSW) (3rd ed, Thomson Reuters, 2018) pp 5-10.

128    The CLA as originally enacted imposed limitations upon awarding damages in cases of personal injury and death. Subsequent amendments introduced changes to the law of negligence more broadly.

129    The relevant part of the CLA for present purposes is Pt 2, which deals with personal injury damages. Its application is governed with by s 11A, which provides:

(1)    This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B.

(2)    This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(3)    A court cannot award damages, or interest on damages, contrary to this Part.

130    Section 3B sets out a list of exclusions from the application of the CLA.

131    Division 2 of Pt 2 deals with fixing damages for economic loss, and Div 3 deals with the fixing of damages for non-economic loss (general damages). Of particular relevance is s 16 within Div 3, which deals with the “determination of damages for non-economic loss”. Save for amendments which have no present relevance, s 16 is in the same form now as it was when originally enacted. It is as follows:

(1)    No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2)    The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

(3)    If the severity of the non-economic loss is equal to or greater than 15% of a most extreme case, the damages for non-economic loss are to be determined in accordance with the following Table:

    [Table omitted]

(4)    An amount determined in accordance with subsection (3) is to be rounded to the nearest $500.

132    Under s 17, the maximum amount specified in s 16(2) is indexed with the result that it is now $693,500: Civil Liability (Non-economic Loss) Order 2010 (NSW), w.e.f. 1 October 2021.

133    It is to be observed that the CLA does not specify or otherwise set out the heads of damage recoverable for personal injury. Division 2 of Pt 2 contains provisions setting out how damages for past and future economic loss and loss of expectation of financial support are to be calculated (s 12), requirements for the making of an award of damages for future economic loss (s 13), a discount rate to be applied to any lump sum assessment of damages for future economic loss (s 14), certain requirements for the award of damages for gratuitous attendant care services (ss 15 and 15A) and for loss of capacity to provide domestic services (s 15B), and a maximum for the amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions (s 15C). The underlying assumption of those provisions is that such heads of damage are otherwise available at law.

134    Similarly, Div 3 of Pt 2 is underlain by an assumption that damages for non-economic loss, or general damages, are available at law and merely overlays that availability with the limitations already discussed above.

135    As will be seen, there is some uncertainty as to whether the CLA applies to no-fault liability, or whether it applies only to liability arising from the fault of a person.

E.3     The Judiciary Act

136    The present matter is one in federal jurisdiction under s 39B(1A)(c) of the Judiciary Act as it is a matter arising under a law made by the Parliament. That has the result that the CLA does not apply unless it is picked up and applied by a law of the Commonwealth, relevantly ss 79(1) or 80 of the Judiciary Act: Moore v Scenic Tours Pty Ltd [2020] HCA 17; 268 CLR 326 at [2] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. Those sections are as follows:

79    State or Territory laws to govern where applicable

(1)    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.

…

80    Common law to govern

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

137    As mentioned, the recent judgment in Grueff decides the critical question whether ss 79(1) or 80 of the Judiciary Act pick up and apply s 16(1) of the CLA, albeit obiter. The most convenient way of addressing the question in the present case is accordingly to begin with the judgment in Grueff. It is in that context that I will then consider the parties’ submissions and consider whether I come to a different view to that expressed in Grueff.

138    It is well-established that as a matter of comity a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] per French J; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; 162 FCR 234 at [88]-[89] per Greenwood J, Sundberg J agreeing; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [21] Allsop CJ. As noted, the answer to the critical question in Grueff was obiter with the result that the question of whether I regard it as “plainly wrong” does not arise. Nevertheless, the decision is deserving of the utmost respect and I would not lightly depart from it.

E.4     Grueff v Virgin Australia

139    The applicants in Grueff, during a flight from Bali, Indonesia to Sydney, consumed perfumed water (intended to be used to deodorise the aircraft’s toilets) after they were given it instead of bottled mineral water by mistake by a member of the cabin crew. They claimed that as a consequence, they suffered a range of medical symptoms including sore throat, nausea, diarrhoea, head cold, reduced appetite, temporary weight loss and food intolerances. They brought actions for damages for “bodily injury” caused by an “accident” under Art 17(1) of the Montreal Convention.

140    Griffiths J held (at [43]-[44], [47]-[48]) that the applicants had not suffered a “bodily injury” within the meaning of Art 17(1) or that such symptoms as they experienced were caused by the accident involving the ingestion of the tainted water. It was therefore not strictly necessary to consider the application of Pt 2 of the CLA, although his Honour resolved (at [54]) to do so in case he was wrong on the questions of “bodily injury” and causation. His Honour’s process of reasoning on that question was as follows.

141    With reference to Blunden v Commonwealth [2003] HCA 73; 218 CLR 330 at [16], Griffiths J held that in identifying the applicable law in the Commonwealth law area, the “inquiry directs attention, in the first instance, to s 80 [of the Judiciary Act]”: at [65]-[68]. On that question, it was identified (at [69]) that there are two critical thresholds for the common law, as modified by NSW statute (the matters being heard in NSW), to be applied as the relevant law for the heads and assessment of damages:

(1)    that the Montreal Convention, as given the force of law by the Carriers’ Act, is “insufficient” to carry itself into effect with respect to the heads and assessment of damages for causes of action under Art 17(1) concerning “bodily injury”, or alternatively fails to “provide adequate remedies”; and

(2)    the CLA, being the common law as modified by statute in NSW with respect to the assessment of damages, is not “inconsistent” with the Carriers’ Act (and therefore the Montreal Convention) as laws of the Commonwealth.

142    Griffiths J referred (at [71]) to what was said in the concurring judgment of Gordon J in Parkes at [61] with reference to Art 24(2) of the Warsaw Convention which, as noted, is relevantly the same as to Art 29 of the Montreal Convention and includes the words “without prejudice to the questions as to who are the persons who have rights to bring suit and what are their respective rights”. Her Honour said that “the auxiliary questions about who has the right to bring suit (the identity of the plaintiffs) and what are their respective rights (the heads of damage for which they may sue and legal basis on which they may sue for that damage) are left for determination by domestic law (the local law identified by the law of the forum under its choice-of-law rules).” Griffiths J held (at [72]) that the same reasoning can be applied to Art 29 of the Montreal Convention, “namely that the assessment of what ‘damages’ are available, if the requirements of Art 17(1) liability are established, is governed by domestic law, as determined by choice of law rules”, being in this instance ss 79 and 80 of the Judiciary Act.

143    His Honour went on to reason (at [73]) that since the Carriers’ Act does not provide for the heads of damage available under Art 17(1) for “bodily injury”, the first threshold (identified at [141] above) for the application of s 80 is satisfied, namely that the statute law of the Commonwealth is “insufficient” with respect to the heads and assessment of damages with respect to “bodily injury” under Art 17(1), or perhaps fails to provide “adequate remedies” in this respect. Therefore, recourse must be had to the common law on damages as modified by the statute in the State in which the Court exercising jurisdiction is held, namely the CLA.

144    With regard to the second threshold for the application of s 80, namely that the CLA is not “inconsistent” with the Carriers’ Act, his Honour made three points:

(1)    If the heads of damage available and assessment of damages was intentionally left to the domestic law, as reasoned by Gordon J with reference to the wording that the conditions and limits of liability are “without prejudice” to “what are their respective rights”, this would suggest that the CLA cannot be said to be “inconsistent” with the Montreal Convention (at [74]).

(2)    Section 9E of the Carriers’ Act, which provides that the liability of the carrier for personal injury under the Montreal Convention “is in substitution for any civil liability of the carrier under any other law in respect of the injury” and with which application of the CLA might otherwise be regarded as being inconsistent, is not inconsistent if the CLA is understood as merely going to the heads and assessment of damages and does not itself create “civil liability” (at [75]).

(3)    Section 16(1) of the CLA is not inconsistent with Art 17(1) by imposing a condition of severity of personal injury before non-economic loss is recoverable. That is because the better view is that s 16(1) goes not to the question of whether the carrier is “liable”, but rather if it is found to be liable under Art 17(1), the “respective rights” of the claimant passengers with respect to damages for non-economic loss are nevertheless contingent on s 16. (At [76].)

145    His Honour also considered two judgments of the US Supreme Court, namely Zicherman v Korean Air Lines Co Ltd 516 US 217 (1996) and El Al Israel, analysing them to be consistent with that approach and reasoning that “some weight must be accorded to these authorities” (at [78]-[81]). Reference was made, in particular, to the observation by Scalia J for the Court in Zicherman (at 229) that Arts 17 and 24 of the Warsaw Convention “provide nothing more than a pass-through authorising us to apply the law that would govern in the absence of the Warsaw Convention.”

146    Next, Griffiths J considered whether the CLA is picked up by s 79 of the Judiciary Act. First, his Honour reasoned (at [83]) that as s 79 is expressly subject to s 80, if it was considered that s 80 did not pick up the CLA because of some “inconsistency” with the Carriers’ Act and its application of the Montreal Convention, then it would necessarily follow that it also could not be picked up by s 79. That is because, with reference to Blunden, s 80 would be a law of the Commonwealth which “otherwise provided” for the purposes of s 79, which is a threshold for the “picking up” of State laws into federal jurisdiction under s 79.

147    Following an analysis of Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 and Masson v Parsons [2019] HCA 21; 266 CLR 554, his Honour identified that the appropriate questions with regard to whether the CLA is picked up by s 79 of the Judiciary Act are: (1) whether the CLA is a State law “directed to” courts which should be “binding” on courts exercising federal jurisdiction in NSW as a gap filling measure, and (2) then, whether the Commonwealth statute, namely the Carriers’ Act and the Montreal Convention, otherwise provide (at [82]-[86]).

148    With reference to Parker v Commonwealth [1965] HCA 12; 112 CLR 295, Rizeq and Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 9; 203 CLR 136, his Honour concluded that the CLA satisfies the “gap filling measure” requirement (at [87]-[89]).

149    With reference to Masson, his Honour reasoned that whether the Carriers’ Act and the Montreal Convention have “otherwise provided” turns on whether the CLA is relevantly inconsistent with them, in the same way as considered in relation to s 80 of the Judiciary Act. On that basis, his Honour concluded that there is no relevant inconsistency such as to preclude the application of the relevant provisions of the CLA. (At [90]-[92].)

150    As an aside, it has been observed that there may be some doubt as to the consistency of what was said as obiter in Masson (at [43]) as to the expression “otherwise provided” in s 79(1) being equated with the concept of inconsistency in s 109 of the Constitution with other recent High Court authority: Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 at [56]-[58] per Leeming JA, Bathurst CJ and Bell P agreeing. I do not understand anything to turn on that for the present.

151    Griffiths J went on to consider some potentially relevant cases, starting with NSW cases (at [94]-[102]). His Honour considered Pel-Air, in which the parties agreed that the CLA applied to the claim under the Montreal Convention, and Arefin v Thai Airways International Public Co Ltd (unreported, District Court of New South Wales, 21 August 2007) and Wahba v Carroll & O’Dea Lawyers [2018] NSWDC 128, both cases in which the NSW District Court held that the CLA was picked up by either s 79 or s 80 of the Judiciary Act.

152    His Honour also considered (at [103]-[110]) Di Falco in which Keogh J held that Pt VBA of the Wrongs Act 1958 (Vic) was not picked up and applied by the Judiciary Act in the context of the Carriers’ Act. Pt VBA of the Wrongs Act deals with thresholds in relation to recovery of damages for non-economic loss. Keogh J held (at [25]-[28]) that Pt VBA applied only to claims in which the fault of another person is an element of the claim, and it therefore did not apply to a no-fault liability claim under Art 17 of the Montreal Convention. Keogh J also held (at [34]) that the effect of Pt VBA of the Wrongs Act, if applied to the plaintiff’s case, would be to derogate from the right given to her by the Carriers’ Act by extinguishing or restricting her right to recover damages to which she would otherwise have an entitlement. Thus, Pt VBA was not “picked up” by s 79 of the Judiciary Act because the Commonwealth law would “otherwise have provided”.

153    Ultimately, Griffiths J concluded (at [111]) that the better view is that s 80 of the Judiciary Act operates to pick up and apply relevant provisions in Pt 2 of the CLA as surrogate federal laws. His Honour reasoned that this accords with the assumption underlying the Pel-Air litigation and with the views expressed in the two District Court decisions in New South Wales.

154    Finally for present purposes, Griffiths J considered (at [112]-[128]) whether the CLA applies to damages for no-fault personal injury. Ultimately (at [126]-[127]), with reference to Coleman v Barrat [2004] NSWCA 27 in which the NSW Court of Appeal proceeded on the basis that Pt 2 of the CLA applied to a no-fault claim for damages under the Companion Animals Act 1998 (NSW), his Honour held that in the interests of comity he would adopt the view that the CLA applied to the no-fault claim under Art 17 of the Montreal Convention.

F.    Analysis

F.1    Identification of applicable law

155    The starting point in the exercise of federal jurisdiction is to identify the applicable body of law by which the controversy is to be resolved through the exercise of judicial power in accordance with ss 79 and 80 of the Judiciary Act: John Pfeiffer v Rogerson [2000] HCA 6; 203 CLR 503 at [53]; Blunden at [10]. That is, of course, subject to any applicable Commonwealth statute which in this case is the Carriers’ Act. There is no choice of law rule applicable to the present action: Agtrack at [9]. In the circumstances, to the extent that there is reference to the law of a State or Territory, it is necessarily a reference to the law of NSW being the State in which the matter was heard: John Pfeiffer at [58]; Agtrack at [9]; Blunden at [23] and [40].

156    It is therefore necessary to consider whether the common law as amended by any relevant statute law of NSW is to be applied under s 80 of the Judiciary Act: Blunden at [16]. The next step, if it is necessary to take it to provide an answer to the particular question that arises, is to consider whether any relevant statute law of NSW is “picked up” by s 79(1) of the Judiciary Act: Blunden at [17]. Both those inquiries have as a necessary element whether any NSW statute law identified as relevant is inconsistent with applicable Commonwealth legislation. In the present case, both with reference to the s 80 inquiry and the s 79(1) inquiry, the relevant legislation is Pt 2 of the CLA.

F.2    Judiciary Act, s 80

F.2.1    The common law as a gap-filling measure

157    Insofar as s 80 is concerned, the first question is whether it is necessary to have recourse to the common law in order to “carry” the Carriers’ Act “into effect”, or to provide adequate remedies for a bodily injuries claim under Art 17 of the Montreal Convention. These words in s 80 “are apt to speak of a gap in Commonwealth statute laws”: Bui v DPP [2012] HCA 1; 244 CLR 638 at [27] per French CJ, Gummow, Hayne, Kiefel and Bell JJ.

158    As explained at [142] above, the reasoning in Grueff takes as its starting point paragraph [61] of the concurring judgment of Gordon J in Parkes to the effect that the Art 24 of the Warsaw Convention, and by analogy Art 29 of the Montreal Convention, preserves for domestic law the questions of who may sue for damages arising from the death or bodily injury of a passenger and their respective rights, i.e., “the heads of damage for which they may sue and the legal basis on which they may sue for that damage.” That forms the basis for the reasoning in Grueff that the Montreal Convention is “insufficient” with respect to the heads and assessment of damages with respect to bodily injury and that it fails to provide “adequate remedies” in this respect, which is in turn the basis for the conclusion that “the common law in Australia as modified … by the statute law in force in the State … in which the jurisdiction is exercised is held shall, so far as is applicable and not inconsistent with … the laws of the Commonwealth” (s 80) govern the exercise of federal jurisdiction in the matter.

159    On that approach, being the approach in Grueff, it is necessary to have regard to the common law in order to ascertain what damages are available and how they are to be measured. Only thereafter does the question of inconsistency arise, to which I will return.

160    A different approach to the gap-filling question is advocated on behalf of Mr Bradshaw. That approach has it that one “passes through” (to reference the language in Zicherman) Art 29 to the Carriers’ Act, being the relevant domestic law that is preserved by Art 29. In respect of the death of a passenger, s 9D sets out in some detail who can claim and what can be claimed (as s 35 did in Agtrack and Parkes). The Carriers’ Act is, however, silent on those questions with respect to bodily injury not causing death. Nevertheless, as a matter of statutory construction with reference to the object, purpose and structure of the statute, and with reference to the norms of the common law not as directly applicable norms (as in the Grueff approach) but indirectly as a source of guidance, courts over time will develop a set of norms governing the questions of who can claim and what their respective rights are. On that approach, consistent with Agtrack at [6] in respective of the death of a passenger, the claimant’s rights “flow purely and solely from Pt [IA] of the Carriers’ Act”.

161    Mr Bradshaw refers to Henville v Walker [2001] HCA 52; 206 CLR 459 as providing a useful analogy. There, the question arose as to what heads of damage were available in an action for damages for misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA). Section 82 of the TPA provided that a person who suffers loss or damage by conduct of another person who has contravened s 52 may recover the amount of the loss or damage by action against the contravening person. Gleeson CJ explained (at [18]) that the appellants’ entitlement to damages had a statutory source and that the task was to select a measure of damages which conforms to the remedial purpose of the statute:

The principles of the common law, relevant to assessing damages in contract or tort, are not directly on point. They may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.

162    By analogous reasoning, in an action for “damage sustained in case of … bodily injury” (Art 17(1)) the court will be guided by the heads of damage that would otherwise be available at common law, but will not be applying the common law or any statutory overlay of a particular State or Territory. The court will be giving expression to the statutory cause of action embodied in Art 17(1).

163    I am persuaded by Mr Bradshaw’s submissions and the analogy with Henville v Walker. The point is that the right of action is given by the Carriers’ Act, and the Montreal Convention as enacted itself provides that damages recoverable are for “damage sustained in case of … bodily injury” and that such damages are compensatory. There is no need here for application of the common law to carry those provisions into effect. The principles to be applied may be derived from the common law by analogy, but the damages are not common law damages; they are damages under Convention (or statute) as interpreted and implemented by domestic courts.

164    The US cases, Zicherman and El Al Israel, are consistent with this approach. They say, in effect, that Art 29 (albeit with reference to Art 24 of the Warsaw Convention) allows compensatory damages to be determined in accordance with domestic law, i.e., who can claim and what their rights are. But they say nothing about what Australian domestic law says on that question. In Zicherman it was held (at 223-224) that “dommage”, being the relevant word in the authoritative French text of the Warsaw Convention, meant “legally cognizable harm” but that Art 17 leaves it to adjudicating courts to specify what harm is cognizable. It was observed that that is not an unusual disposition because even within US domestic law “many statutes that provide generally for ‘damages’, or for reimbursement of ‘injury’, leave it to the courts to decide what sorts of harm are compensable.” That is exactly the point with reference to Henville v Walker, and it is consistent the recognition that the cause of action is created by Art 17(1) and the damages are assessed in accordance with domestic law being the Carriers’ Act, to the extent that says anything on the question, and only to the common law by analogy as representing “an accumulation of valuable insight and experience”.

165    The point is illustrated in reverse by Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55. The plaintiff (respondent on appeal) relied on s 74(1) of the TPA as implying a warranty into its contract for the supply by a corporation of services to a consumer that the services would be rendered with due care and skill. A question that arose was whether certain provisions of the CLA on which the defendant relied were picked up and applied in federal jurisdiction. Gleeson JA reasoned (at [146]-[147], [149]) that as the TPA did not provide a statutory civil cause of action for breach of s 74(1) and the TPA did not provide a code as to the standard of conduct required to discharge the warranty of due care and skill, it was necessary to look to the common law to provide the liability of the defendant in contract for breach of the implied warranty. (Basten and Meagher JJA did not specifically address this question; see [31] and [43].)

166    Blunden offers another illustration of the operation of s 80. There the claim that was brought was a common law negligence claim for personal injuries suffered in a collision at sea between two Australian naval vessels. The claim was in federal jurisdiction because it was a claim against the Commonwealth. There was no common law rule of limitation (i.e., time limitation). The question that arose was whether the ACT limitation statute was picked up and applied under s 80 of the Judiciary Act. It was held that it was. Although the Navigation Act 1912 (Cth) had provisions dealing with the liability of the owners of ships in the event of loss of life or personal injuries suffered on board a ship, the relevant provisions did not speak to the plaintiff’s claim. The plaintiff’s cause of action was also not a cause of action under the Navigation Act, which was insufficient to provide the plaintiff with remedies. It was therefore necessary to look to the common law in Australia to provide the liability of the Commonwealth in tort, which was to the common law in Australia as modified by the statute law in force in the ACT; it was “not possible for Mr Blunden to fashion a case whereby in the adjudication of his claim there is applied by s 80 the common law in its pristine form.” See Blunden at [33]-[35].

167    The point for present purposes is that as the cause of action was provided by the common law and not by the Commonwealth statute, it was necessary to have recourse to the common law through s 80. That circumstance is not present in the present case.

168    The result is that in my respectful view, in contrast with the view expressed in Grueff, there is no “gap” in the Carriers’ Act and the Montreal Convention such as to require recourse to the common law under s 80 of the Judiciary Act.

F.2.2    Inconsistency with the laws of the Commonwealth

169    I also find myself respectfully arriving at a different conclusion to that expressed in Grueff on the question of whether Pt 2 of the CLA is inconsistent with the Montreal Convention. The determinative question is whether Pt 2 of the CLA is inconsistent with the scheme of liability under the Montreal Convention such as to prevent it being picked up under s 80 (or s 79(1)) of the Judiciary Act). As explained in Grueff (at [69] and [83]), if Pt 2 of the CLA is inconsistent with the Montreal Convention then neither ss 79(1) nor 80 of the Judiciary Act will pick it up and apply it.

170    In my view, Pt 2 of the CLA is inconsistent with Arts 17 and 21 of the Montreal Convention; to apply s 16 to an Art 17 claim would fundamentally distort, or derogate from, the structure of the compromise reached between the rights and interests of carriers and passengers (or others claiming in respect of the injury or death of a passenger) as expressed in the “uniform international code” (Sidhu at 453; Parkes at [10]) that is the Montreal Convention.

171    As explained above at [113], components of that compromise include a regime of no-fault liability subject to the two-tier system of applicable limits expressed in Art 21. That imposes a limit on the carrier’s liability for economic and non-economic damages of, currently, approximately $242,000 unless the carrier fails to prove that the damage was not due to the fault of the carrier or its servants or agents or that it was solely due to the fault of a third party, in which event there is no limit of liability. Also, the carrier can stipulate for higher limits of liability (Art 25) and it cannot fix a lower limit of liability (Art 26). There is no minimum threshold to the recoverability of damages.

172    In contrast, s 16(2), read with s 11A(3), of the CLA imposes a limit on what a court can award for non-economic loss for personal injury of, currently, $693,500, but no upper limit is imposed on liability for economic loss although certain limits on the way in which such losses are calculated are prescribed (Pt 2 Div 2). The effect of s 11A(2) and (3) is that a court cannot give effect to other limits agreed by the parties. Also, s 16(1) imposes a minimum threshold for non-economic loss for personal injury of 15% of a most extreme case which would produce an award, under the table in s 16(3), of 1% of the maximum, i.e., currently $6,935. As noted, the Montreal Convention imposes no such minimum threshold.

173    It is also the case that “bodily injury” under the Montreal Convention is different from “injury” in Pt 2 of the CLA. In s 11 of the CLA “injury” is defined to include “impairment of a person’s physical or mental condition”, whereas “bodily injury” in the Montreal Convention excludes mental injury: Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; Eastern Airlines Inc v Floyd 499 US 530 (1999); Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 112F per Meagher JA, Stein JA agreeing; Pel-Air at [51] per Macfarlan JA, Ward and Gleeson JJA agreeing. The limits and thresholds therefore apply not only to different forms of loss (economic and non-economic in the case of the Montreal Convention and non-economic in the case of Pt 2 of the CLA), but they apply to losses arising from different albeit overlapping types of injury.

174    In short, the two regimes are substantially different and inconsistent with one another. To pluck one component out of one scheme (e.g., the threshold in s 16(1)) in this case and impose it on the other scheme would create such distortion as to be in conflict with that other scheme, namely the Montreal Convention. As explained by Keogh J in Di Falco (at [34]) with respect to the Victorian statute in issue in that case, the effect of the threshold requirement for the recoverability of damages in s 16(1), if applied to Mr Bradshaw’s case, would be to derogate from the right given to him by the Carriers’ Act by extinguishing or restricting his right to recover damages to which he would otherwise have an entitlement.

175    The same conclusion with regard to inconsistency was reached in Agtrack, albeit in respect of different provisions. There, the question was whether s 34(1) of the Limitations of Actions Act 1958 (Vic) would be picked up and applied under s 79 of the Judiciary Act in a Warsaw Convention claim. Section 34(1) of the Victorian statute provided that if a court would, but for the expiry of any relevant period of limitation after the day the proceeding in the court was commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made provided that it was satisfied of certain matters not presently relevant. Consistently with Art 29 of the Warsaw Convention, s 34 of the Carriers’ Act provided that the right to damages shall be extinguished if an action is not brought within two years.

176    It was held (at [60] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) that were s 34 of the Victorian statute to be picked up by s 79 of the Judiciary Act, it would provide otherwise than as required by s 34 of the Carriers’ Act; it would have “derogated from” the extinction wrought by s 34 of the federal statute. See also at [108] per Callinan J: “ss 79 and 80 of the Judiciary Act cannot operate to pick up a State rule … such as those designed to alter the common law … and which would, if operative, have the effect of amending or detracting from the operation of a federal enactment”.

177    Section 16 of the CLA was itself considered in Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456. In the NSW Court of Appeal, the question arose whether s 16 would apply to limit or preclude a supplier’s liability under s 267(4) of the Australian Consumer Law (ACL) which was applicable in that case by operation of the Competition and Consumer Act 2010 (Cth), i.e., the matter was within federal jurisdiction.

178    It was held (at [359] per Sackville AJA, Payne JA and Barrett AJA agreeing) that s 16 of the CLA would not be picked up by s 79 of the Judiciary Act because the consumer’s entitlement to recover damages for any loss or damage caused by the supplier’s failure to comply with a Consumer Guarantee is created by s 267(4) of the ACL and a State law purporting to limit or preclude the consumer’s entitlement would be “irreconcilable” with the Commonwealth law. In the further appeal to the High Court, that reasoning was not challenged – “irreconcilable” being the language of Gleeson CJ and Gummow J in Northern Territory v GPAO [1999] HCA 8; 196 CLR 553 at [80]-[81] as capturing the notion of “otherwise provided” in s 79 of the Judiciary Act. See also Macleod v ASIC [2002] HCA 37; 211 CLR 287 at [22] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

F.2.3    Conclusion on s 80

179    In the circumstances, I conclude that s 16(1) of the CLA cannot be picked up and applied to an Art 17 claim by s 80 of the Judiciary Act. That conclusion is consistent with the conclusion in Di Falco and inconsistent with the conclusion in Grueff.

180    In Grueff (at [94]-[102]) there is reference to a number of judgments in NSW where the CLA has been applied to claims brought under the Carriers’ Act and the applicable Convention (see [151] above). As explained in Grueff (at [95]), the Court of Appeal case (Pel-Air) does not decide the question because it was common ground between the parties. The others are judgments of the District Court. I respectfully decline to follow them for the reasons given above.

F.3    Judiciary Act, s 79(1)

181    In view of my conclusion above with regard to the inconsistency between the scheme of the Montreal Convention and Pt 2 of the CLA, s 79(1) of the Judiciary Act will not be enlivened to pick up Pt 2 of the CLA, i.e., the State law is not picked up because the Commonwealth law “otherwise provided”. It is therefore unnecessary to consider whether Pt 2 of the CLA would otherwise be picked up under s 79(1).

F.4    CLA, Pt 2: fault based liability only?

182    Finally, I have reservations as to whether Pt 2 of the CLA applies to no-fault liability such as that created by Art 17(1) of the Montreal Convention, recognising that Griffiths J apparently had similar reservations in Grueff and rested his decision on comity with reference to the Court of Appeal’s decision in Coleman v Barrat. This question logically arises at an earlier stage of analysis because neither ss 80 nor 79(1) will pick up State or Territory statutory provisions that do not apply on their own terms to the circumstances of the case at hand. I nevertheless deal with that only now because of the lack of certainty with regard to its answer which has led me to approach the preceding discussion about whether ss 80 or 79(1) pick up and apply Pt 2 of the CLA to the Art 17(1) claim on the assumption that Pt 2 of the CLA applies on its own terms to no-fault liability.

183    In Coleman v Barrat, the Court of Appeal affirmed a judgment of the NSW District Court against the owner of a dog in relation to a claim for injury. A woman fell off a horse and was injured after it shied when a dog ran at it, barking. The District Court had held that the dog’s owner was negligent. The Court of Appeal proceeded on the basis that the CLA applied and that a claim for damages under the relevant legislation, the Companion Animals Act, provided an ‘absolute liability’ in an owner of a dog. There was no point taken in the case as to whether the CLA applied and no decision was made in that regard – the apparent underlying assumption of the parties, and hence the Court, was that the CLA applied.

184    There can be little doubt, as explained in Grueff at [117]-[119], that prior to the amendment of the CLA by the CLA Amendment Act, it applied only to fault-based liability. That conclusion arises most clearly from three sources.

185    First, personal injury damages was defined in s 3 as meaning “damages that relate to the death of or injury to a person caused by the fault of another person” (emphasis added).

186    Secondly, the long title of the Act included that it was “to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person; …” (emphasis added). By s 33 of the Interpretation Act 1987 (NSW), in the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. It may be proper to look at the long title for the purpose of determining the scope of an Act in order to resolve any uncertainty: Birch v Allen [1942] HCA 17; 65 CLR 621 at 625-626; Lambe v Director-General of Social Services (1981) 4 ALD 362 at 367; this being relevant in circumstances where the CLA had and has no express object or purpose provisions.

187    Thirdly, the Explanatory Note to the Civil Liability Bill 2002 (NSW) (at 1) described its purpose as being in relation to “damages that relate to the death of or injury to a person caused by the fault of another person” (emphasis added).

188    As mentioned, the CLA was then amended later in 2002 by the CLA Amendment Act. That Act did not amend the long title which remains the same. As explained in Grueff (at [120]-[125]), the introduction of new provisions into the CLA involved its restructuring and some amendments to Pt 2. Those amendments, which remove the mention of fault in relation to personal injury damages, are set out in Sch 2 to the CLA Amendment Act which is headed “Consequential and other amendments”, which is not suggestive of them being fundamental as to the basis of application of Pt 2. Also, the Explanatory Note to the CLA Amendment Act (at 7) described those amendments as “minor amendments to reorganise the structure of the Principal Act”. There is nothing in the Explanatory Note to suggest any intended change in the application of Pt 2 from damages caused by fault to damages also caused without fault.

189    If the amendments to the CLA took the application of Pt 2 beyond injury caused by the fault of another person to no-fault causes of action, that would directly conflict with the long title of Act. On the other hand, applying Pt 2 only to fault based liability creates no conflict with the long title. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ; and that to read a section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315 per Mason J.

190    If Pt 2 of the CLA does not apply to strict liability causes of action such as that for damages arising from bodily injury under Art 17 of the Montreal Convention, then there would be no inconsistency between those respective schemes and, on the approach in Grueff, the common law would be the direct source of norms for the assessment of damages.

191    The above comments and reservations about the applicability of Pt 2 of the CLA to no-fault liability notwithstanding, I do not base my decision on it.

G.     Conclusion on damages

192    As explained, because in my view the threshold for and limits on liability for damages for non-economic loss for personal injury set out in s 16 of the CLA are inconsistent with the scheme of liability for and limits on damages sustained in the case of bodily injury in the Montreal Convention, s 16 of the CLA cannot be picked up and applied by either ss 79 or 80 of the Judiciary Act. Emirates’s contention that Mr Bradshaw’s general damages are excluded by the fact that they do not meet the threshold in s 16 of the CLA must accordingly be rejected.

193    The only forms of non-pecuniary damages suffered by Mr Bradshaw were pain and suffering and the loss of amenities of life in the limited way as I have explained at [93]-[106] above. In my assessment, an award of $5,000 will quite adequately and appropriately compensate him for that pain and suffering.

H.     Interest and costs

194    I will hear the parties on interest and costs.

Associate:

Dated:    12 November 2021