Federal Court of Australia
Federal Court of Australia
Bradshaw v Emirates [2021] FCA 1407 File number(s): NSD 2113 of 2019
Judgment of: STEWART J
Date of judgment: 12 November 2021
Catchwords: AVIATION – where applicant was struck on the head by a suitcase on a flight from Dublin to Dubai – applicant sustained bodily injury within the meaning of Art 17(1) of the Montreal Convention given force of law by s 9B of the Civil Aviation (Carriers' Liability) Act 1958 (Cth) – how serious was the injury and its sequelae – what damages are recoverable HIGH COURT AND FEDERAL COURT – whether Pt 2 of the Civil Liability Act 2002 (NSW) (CLA) is picked up by ss 79 or 80 of the Judiciary Act 1903 (Cth) and applied to a claim arising from bodily injury under Art 17(1) of the Montreal Convention – whether there is a "gap" in Commonwealth Law – whether there is inconsistency between Pt 2 of the CLA and the Montreal Convention – whether the applicant's claim is defeated by the threshold in s 16 of the CLA – whether Pt 2 of the CLA applies to no-fault liability such as liability under Art 17 of the Montreal Convention DAMAGES – assessment of general damages for bodily injury in a claim under Art 17 of the Montreal Convention
Legislation: Constitution s 109 Civil Aviation (Carriers' Liability) Act 1959 (Cth) ss 9B, 9D, 9E, 34, 35 Sch 1A Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth) Civil Aviation Legislation Amendment (1999 Montreal Convention and other Measures) Bill 2008 (Cth) Judiciary Act 1903 (Cth) ss 39B(1A)(c), 79(1), 80 Trade Practices Act 1974 (Cth) s 52, 74(1), 82 Civil Liability Act 2002 (NSW) ss 3B, 11A, 12, 13, 14, 15, 15A, 15B, 15C, 16, 17 Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Companion Animals Act 1998 (NSW) s 25 Interpretation Act 1987 (NSW) s 33 Civil Liability Bill 2002 (NSW) Civil Liability (Non-economic Loss) Order 2010 (NSW) Limitations of Actions Act 1958 (Vic), 34(1) Wrongs Act 1958 (Vic), Pt VBA Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, 2242 UNTS 309 Arts 17, 21, 24, 25, 26, 28, 29 Convention for the Unification of Certain Rules for International Carriage by Air, done at Warsaw on 12 October 1929 Arts 17, 24 Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980 Arts 27, 31
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