Non-passengers precluded from bringing nervous shock claims against airline carriers arising from death of a passenger

Oct 9, 2023 | Publication

The central issue before the High Court of Australia in Parkes Shire Council v South West Helicopters Pty Limited  HCA 14 was whether a claim under the general law of tort for damages for negligently inflicted psychiatric harm (nervous shock) consequent upon the death of a passenger during air carriage is precluded under Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).

The decision is significant as it means non-passenger claims for psychiatric harm cannot be brought against an airline carrier in the general law of tort.


The appellant engaged the respondent to assist it to carry out by helicopter a low level aerial noxious weed survey. The helicopter was piloted by an employee of the respondent and carrying two of the appellant’s officers. The helicopter struck power lines and crashed, killing all three occupants. Claims were brought against both appellant and respondent by the widow, daughter and son (the Stephensons), being one of the appellant’s officers. The claims were commenced more than two years after the date of the crash and were therefore outside the time fixed by s 34 of the Civil Aviation (Carriers’ Liability) Act for the commencement of claims. The Stephensons were successful at first instance but the NSWCA upheld the respondent’s appeal.

High Court

In the High Court, Kiefel CJ, Bell, Keane and Edelman JJ held the Stephensons were entitled to claim against the respondent under s 28 of the CACL Act but their rights were extinguished by s 34 of that Act before the proceedings were commenced. Accordingly, their appeal was dismissed. Gordon J , in a separate judgment, agreed.

On further appeal to the High Court, the only issue on that appeal was whether the plaintiff’s claims against the respondent were precluded by the Civil Aviation (Carriers’ Liability) Act Pt IV. If they were not, the appellant would be entitled to a greater level of contribution. 

The High Court dismissed the appeal ruling that since the plaintiff’s claims had been commenced more than two years after the crash and outside the limitation date, they were extinguished by that provision.

True mental harm suffered by any member of the passenger’s family following death entitled them to claim against the respondent. The entitlement was not fault-based. The absence of a direct contractual relationship between a non-passenger plaintiff and a carrier does not prevent a claim. The decision of South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 should not be followed. The principal purpose of the Warsaw Convention and the Civil Aviation (Carriers Liability) Act was to limit liability despite domestic law. It followed that the NSWCA decision was correct and the appeal to the High Court was dismissed.

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

Latest Insights

How Vicissitudes Impact Future Economic Loss in Legal Cases

When it comes to calculating future economic loss in legal cases, one concept that often arises is "vicissitudes." But what exactly are vicissitudes, and how do they affect the compensation awarded to plaintiffs? In this article, we'll delve into the definition of...

Can you still make a claim?

Many claims have limitation periods. A limitation period is a set time frame within which an aggrieved person must commence proceedings in a Court. These limitation periods generally commence from the date of the injury and/or incident. Some claims however, such as...

Teacher convicted for failing to report sexual abuse of a child

Teacher, Mr Webb of Trinity College Perth, was unsuccessful in his appeal against his conviction of failing to report sexual abuse of a child in a decision delivered on 13 October 2021. In April 2017, a group of boys from the school went on a school rugby trip to...

Annual Dinner – Parramatta & District Regional Law Society

Western Sydney's legal profession gathered for the Annual Dinner of the Parramatta & District Regional Law Society at CommBank Stadium! We are particularly grateful to Dr Hugh McDermott MP, Parliamentary Secretary to the Attorney General, Senior Vice...

What compensation can I get if I have been injured at work?

If you have a work-related injury or illness, you may be able to claim compensation for lost income, medical expenses, travel expenses, domestic assistance, pain and suffering and permanent impairment. All employers are required to have workers compensation insurance...

Court makes provision for son left out of father’s Will

The recent Supreme Court of New South Wales decision of Rathswohl v Court  NSWSC 356, involved 3 siblings disputing their entitlements to their late father’s estate. The defendant, Yvette, claimed she cared for her father for the last 18 months before he...

If I die without a Will what can happen?

If you die without a Will there can be many unintended consequences. Some of these consequences may be: A person who you do not intend could control your estate.  This could even be someone you do not know.  An executor is a person who controls an estate...