Bradshaw v Emirates [2021] FCA 1407

Bradshaw v Emirates [2021] FCA 1407

The threshold for and limits on non-economic loss in s 16 of the Civil Liability Act 2002 (NSW) are inconsistent with the Montreal Convention, because the federal scheme does not impose a minimum threshold and has its own two-tier liability and limitation regime. Accordingly, s 16 cannot be picked up and applied by the Judiciary Act, and the applicant is entitled to compensatory general damages for pain and suffering and loss of amenities of life, assessed with reference to the injury proved, which in this case is modest.

Jurisdiction
Australia
Judgment Date
12 November 2021
Procedural Posture
Claim for Damages Under International Carriage by Air Under Montreal Convention / Final Judgment Following Contested Hearing; Orders to Be Brought in or Determined on the Papers
Outcome
Applicant entitled to $5,000 in general damages; parties to bring in agreed orders regarding interest and costs, or make further submissions if unable to agree.
Legal Topics
['montreal Convention' 'general Damages for Bodily Injury' 'state Law in Federal Jurisdiction' 'thresholds for Non Economic Loss' 'consistency and Inconsistency of Laws' 'damages Assessment']
['aviation Law' 'federal Jurisdiction' 'personal Injury'] ['montreal Convention' 'general Damages for Bodily Injury' 'state Law in Federal Jurisdiction' 'thresholds for Non Economic Loss' 'consistency and Inconsistency of Laws' 'damages Assessment']

Case Brief

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Procedural Posture

Claim for Damages Under International Carriage by Air Under Montreal Convention / Final Judgment Following Contested Hearing; Orders to Be Brought in or Determined on the Papers

Legal Issues

  1. 1 ['Whether the Civil Liability Act 2002 (NSW) s 16 threshold applies to a claim for non-economic loss under Art 17 of the Montreal Convention heard in federal jurisdiction' 'Whether the applicant suffered loss or injury sufficient to warrant damages' 'What measure of damages is recoverable under the Montreal Convention']

Ratio Decidendi

The threshold for and limits on non-economic loss in s 16 of the Civil Liability Act 2002 (NSW) are inconsistent with the Montreal Convention, because the federal scheme does not impose a minimum threshold and has its own two-tier liability and limitation regime. Accordingly, s 16 cannot be picked up and applied by the Judiciary Act, and the applicant is entitled to compensatory general damages for pain and suffering and loss of amenities of life, assessed with reference to the injury proved, which in this case is modest.

Court Disposition

Applicant entitled to $5,000 in general damages; parties to bring in agreed orders regarding interest and costs, or make further submissions if unable to agree.

Orders

  • ['Within 7 days, parties to bring in agreed orders consistent with reasons for judgment (including on interest and costs).' 'If unable to agree, parties to file and serve competing orders with short submissions within 14 days, and replies within a further 7 days.' 'Final orders to be determined on the papers unless...