Supreme Court New South Wales

• Medium Neutral Citation: Halime v Singapore Airlines Ltd [2014] NSWSC 1681
• Hearing dates: 26 November 2014
• Decision date: 26 November 2014
• Before: Adams J

Decision

The statement of claim is dismissed.

• Catchwords: PROCEDURE - application to dismiss statement of claim - proceedings brought by plaintiff 22 years after the event - plaintiff's right to damages extinguished under Civil Aviation (Carriers' Liability) Act
• Legislation Cited: Civil Aviation (Carriers' Liability) Act 1959 (Cth) ss 11, 13, sch 2
• Cases Cited: Kotsambasis v Singapore Airlines Limited (1997) 140 FLR 318; Povey v Civil Aviation Safety Authority & Ors (unreported, Supreme Court of Victoria, 20 December 2002, Bongiorno J)
• Category: Principal judgment
• Parties: Emile Halime (Plaintiff); Singapore Airlines Ltd (Defendant)
• Representation: Counsel: B Lloyd (Defendant); Solicitors: Self-represented (Plaintiff); Maurice Thompson Clyde & Co (Defendant)
• File Number(s): 2014/160077

ex tempore Judgment

1 The plaintiff suffered, on his account, psychological injury as a result, he alleges, of an engine exploding on a flight from Athens to Singapore on 28 May 1992 and seeing the engine on fire. It may readily be accepted that he was terrified of what he thought would or might happen, and for present purposes, I accept that he has significant psychological effects from that experience.

2 The difficulty that faces him, however, in suing on 28 May 2014, which is the date of his statement of claim, arises from the terms of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) which provides that what is known as the Warsaw Convention, as amended at the Hague, is part of the law of Australia (s 11 of the Act) and deals with the issue of injuries caused to passengers arising by carriage by air of the kind which Mr Halime alleges occurred here. Article 11 of the Convention (reproduced as schedule 2 of the Act) states that it "applies to all international carriage of persons, luggage or goods performed by aircraft for reward ... ". Thus it applies in this case.

3 Section 13 of the Act provides -

"Subject to the next succeeding section the liability of a carrier under the Convention in respect of personal injury suffered by a passenger not being an injury that has resulted in the death of the passenger is in substitution for any civil liability of the carrier under any other law in respect of the injury."

4 It is therefore necessary to go to the Convention to establish the liability of the carrier since there is no other source of liability for personal injuries. The relevant provisions of the Convention are Articles 17 -

"The carrier is liable for damage sustained in the event of death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

5 In Povey v Civil Aviation Safety Authority & Ors (unreported, Supreme Court of Victoria, 20 December 2002, Bongiorno J), his Honour said -

"Paragraph 3 ... section 13 of the Act provides that this right [namely, the right in Article 17] is in substitution for any right which an injured passenger may have to compensate under any other law; that is to say, a plaintiff's sole right to compensation is defined by the Convention."

6 In Kotsambasis v Singapore Airlines Limited (1997) 140 FLR 318, a decision of the New South Wales Court of Appeal, and accordingly binding on me, it was held that a passenger who suffered psychological injuries from an incident which occurred on board a Singapore Airlines aircraft was not bodily injury within Article 7 of the Convention, and accordingly, the consequence of section 13 of the Act is that any liability which otherwise might have enabled her to sue Singapore Airlines was extinguished. It follows, therefore, that Mr Halime is not able to sue Singapore Airlines for his psychological injury.

7 At all events, his action cannot succeed because of Article 29(1) of the Convention -

"The right to damages shall be extinguished if an action is not brought within two years reckoned to the date of the arrival and the destination or from the date on which the aircraft ought to have arrived or from the date on which the carriage stopped."

8 It is clear from Mr Halime's own allegations that the carriage stopped either on 28 May 1992 or, at the very latest, 29 May 1992. Accordingly, his action for damages commenced in 28 May 2014, by virtue of 29(1) of the Convention, has been extinguished since 29 May 1994.

9 Mr Halime was directed by the Registrar on 18 June and 2 July 2014 to file any notice of motion seeking an extension of time to commence his claim. This was to be done respectively by 25 June and 12 December 2014. He has not done so. He explains that he is not a lawyer and could not get Legal Aid or pro bono assistance for the purpose of complying with these directions. I accept of course his explanation. But I point out that at all events no argument is available for an extension of time since the Convention and the Act do not provide for such a process. The extinguishment of the action is final on the expiration of the specified date.

10 The statement of claim is dismissed.

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Decision last updated: 28 November 2014