Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501

Federal Court of Australia

Grueff v Virgin Australia Airlines Pty Ltd [2021] FCA 501 File number(s): NSD 363 of 2020 NSD 366 of 2020

Judgment of: GRIFFITHS J

Date of judgment: 12 May 2021

Catchwords: AVIATION – two applications for damages under Art 17(1) of the 1999 Montreal Convention as given force by s 9B of the Civil Aviation (Carriers' Liability) Act 1958 (Cth) (CACL Act) – two passengers consumed "tainted" water onboard international flight from Denpasar to Sydney – passengers complained of various health conditions – whether passengers suffered "bodily injury" within meaning of Art 17(1) – whether "bodily injury" caused by "accident" onboard flight – consideration of "common sense" causation in absence of medical evidence DAMAGES – claims for non-economic loss – where claims would be precluded by s 16 of the Civil Liability Act 2002 (NSW) (CL Act) – whether Pt 2 of CL Act "picked up" as surrogate federal law in exercise of federal jurisdiction in NSW under Pt 1A of CACL Act – identification of relevant law in federal jurisdiction in accordance with ss 79 and 80 of the Judiciary Act 1903 (Cth) – whether Pt 1A of CACL Act and Art 17(1) of Montreal Convention have "otherwise provided" or are "inconsistent" with CL Act concerning damages – whether Pt 2 of CL Act applies to no-fault personal injury proceedings – legislative history of CL Act unclear

Legislation: Constitution s 109 Civil Aviation (Carriers' Liability) Act 1959 (Cth) ss 9B, 9D-9E, 25K, Pt 1A, Pt IV, Sch 1A, Sch 2 Federal Court of Australia Act 1976 (Cth) s 43 Judiciary Act 1903 (Cth) ss 79, 80 Safety, Rehabilitation and Compensation Act 1988 (Cth) Civil Liability Act 2002 (NSW) ss 3, 3B, 5A, 11-11A, 16, Pt 2 Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Sch 2 Companion Animals Act 1998 (NSW) s 25 Law Reform Act 1995 (Qld) s 6 Legal Profession Uniform Law Application Act 2014 (NSW) Wrongs Act 1958 (Vic) Pt VBA, s 28LE Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, 2242 UNTS 309 (entered into force 4 November 2003) Arts 17, 21, 24, 29 Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature 28 September 1955, 478 UNTS 371 (entered into force 1 August 1963) Art 24 Explanatory Notes, Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW) Explanatory Notes, Civil Liability Bill 2002 (NSW)