Picture the following: you’re on a joyflight taking off from a farm in the Northern Territory, you enjoy the lovely sightseeing, and then you land back at the farm. The following day, you take another joyflight from the same farm, but you instead land at the nearby hangar in another town.
Now picture this: You depart Bankstown Airport and fly over Sydney Harbour, enjoy the view of the Opera House, and then return to Bankstown Airport. The following week, you take a flight from Darwin Airport, fly out to see the northern islands, and then return to Darwin Airport.
The court in the case of Stevens v Professional Helicopters Services Pty Ltd  NSWSC 1443 had to consider this question:
Are all those four different flights covered by the same legal regime under the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL Act) and their State equivalents?
FACTS OF STEVENS
The plaintiff, Mr Jay Stevens, was a passenger onboard a single-engine Robinson R44 helicopter that took off for a 15-minute scenic flight around Ayers Rock pursuant to a contract of carriage.
The helicopter, operated by the defendant, Professional Helicopter Services Pty Ltd (PHS), intended to land at the same helipad from which it departed, which was located nearby in the township of Yulara.
The helicopter unfortunately crashed and Mr Stevens suffered severe injuries including paraplegia.
Both Mr Stevens and his employer commenced proceedings in the NSW Supreme Court. Mr Stevens filed a claim seeking:
- damages at common law for his injuries caused by PHS’ negligence; or
- in the alternative, damages under the CACL Act.
Prior to hearing the substance of the claim, the Court was asked to separately answer the question of whether any liability in respect of the injuries sustained by Mr Stevens arose under the CACL Act in substitution for any civil liability under the common law.
This was a critical question. If liability fell under the CACL Act, Mr Stevens’ damages would be limited by operation of section 31 of that Act. If liability, however, fell under the common law, damages would be uncapped.
LIABILITY FELL UNDER THE CACL ACT
The question of liability turned on the interpretation of section 27(1)(c) of the CACL Act, which states:
This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger:
(c) between a place in a Territory and another place in that Territory
It was not in dispute that PHS was the holder of a “charter licence” under its Air Operator’s Certificate and was a “domestic carrier” in the course of “commercial transport operations”.
The dispute, rather, focused on the meaning of the words in bold. The court asked: is a joyflight taking off in one location, and landing at the same location, landing in “another place”?
After considering the text and legislative background of the CACL Act, Justice Wilson concluded that the ‘same place’ (so to speak) was in fact “another place”. The CACL Act therefore applied in substitution of the common law.
INTERPRETING THE LAW WITH PURPOSE – NOT LITERALLY
If one applies section 27(1)(c) of the CACL Act literally, “another place” means, geographically, “another (different) place”. Those flights taking off and returning to the same place within a Territory (such as the same helipad), therefore, would not be covered by the CACL Act.
The judge in Stevens, however, said this would be an absurd result. Her Honour applied a “purposive” construction of the law, giving effect to the purpose of the CACL Act. This was to “regulate all travel by flight in a consistent and uniform way, inferentially wherever the carriage may commence or terminate”.1 Previous authorities had dealt with this legislation similarly, favouring an interpretation producing a meaning consistent with the whole of the CACL Act.
Justice Wilson, in coming to this conclusion, followed the reasoning of a Victorian Court of Appeal majority in Mount Beauty Gliding Club Inc v Jacob (2004) 10 VR 312;  VSCA 151, which dealt with similar wording in State-based Victorian legislation. Whilst the present case dealt with a crash in the Northern Territory (and not Victoria), that didn’t matter.
If section 27(1)(c) excluded air carriage where the place of take-off was the same as the place of destination, the outcomes would be inconsistent, unfair and unjust (and therefore contrary the purposes of the CACL Act).2 Going back to the flight examples we mentioned above, it would mean the CACL Act wouldn’t apply to the flight returning to the farm in Northern Territory, but it would apply to the flight returning to the hangar. Further, the State equivalent of the CACL Act would apply to the Opera House joyflight taking off and returning to Bankstown Airport, but it would not apply to the northern islands joyflight taking off and returning to Darwin Airport.
Inconsistences like this, the court said, couldn’t have been intended by Parliament.
WHAT DOES IT ALL MEAN?
It means that air operators (and their insurers) taking off and landing from the same helipad, airstrip, airport (or wherever), can breathe a sigh of relief.
The fact that an aircraft may be taking off and landing at the same place does not automatically mean the CACL Act won’t apply (meaning operators and insurers will still have the protections of the capped CACL liability regime, currently at AUD$925,000).
This article was written by Matthew Brooks, Partner and Lucas Moctezuma, Law Graduate.
1 Stevens v Professional Helicopters Services Pty Ltd  NSWSC 1443, .
2 Stevens v Professional Helicopters Services Pty Ltd  NSWSC 1443, .