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CIVIL AVIATION (CARRIERS' LIABILITY) ACT 1959 - SECT 9D

Liability in respect of death

Liability

             (1)  This section applies in relation to liability imposed by the Convention on a carrier in respect of the death of a passenger or in respect of the injury that has resulted in the death of a passenger.

             (2)  Subject to section 9F, the liability under the Convention is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger.

             (3)  Subject to subsection (4), the liability is enforceable for the benefit of any of the passenger's family members who sustained damage because of the passenger's death.

             (4)  The liability is enforceable for the benefit of the personal representative of the passenger in his or her capacity as personal representative to the extent that the damages recoverable in the action include:

                     (a)  loss of earnings or profits up to the date of death of the passenger; or

                     (b)  funeral, medical or hospital expenses paid or incurred by the passenger before the passenger's death or by the passenger's personal representative.

Action

             (5)  An action to enforce the liability may be brought by:

                     (a)  the personal representative of the passenger; or

                     (b)  by a person for whose benefit the liability is, under this section, enforceable;

but only one action may be brought in Australia in respect of the death of any one passenger.

             (6)  The action to enforce the liability must be for the benefit of all people for whose benefit the liability is enforceable who:

                     (a)  are resident in Australia; or

                     (b)  not being resident in Australia, express the desire to take the benefit of the action.

Damages

             (7)  The damages recoverable in the action include:

                     (a)  loss of earnings or profits up to the date of death of the passenger; and

                     (b)  the reasonable expenses of the funeral of the passenger; and

                     (c)  medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger.

             (8)  In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger.

Note:          However, certain types of damages may not be recoverable under Article 29 of the Convention.

             (9)  Subject to subsection (10), the amount recovered in the action, after deducting any costs not recovered from the defendant, must be divided among the people entitled in the proportions the court (or, where the action is tried with a jury, the jury) directs.

Orders

           (10)  The court may, at any stage of the proceedings, make any order that appears to the court to be just and equitable having regard to:

                     (a)  the provisions of the Convention limiting the liability of the carrier; and

                     (b)  any proceedings which have been, or are likely to be, commenced against the carrier, whether in or outside Australia.

Costs

           (11)  The second sentence of paragraph 6 of Article 22 of the 1999 Montreal Convention is taken not to apply to an action to which this section applies that is wholly or partly for the benefit of a person or people other than the plaintiff. However, the court may, in such an action, deal with any question of costs in any manner it thinks proper having regard to the operation of the sentence in cases to which it applies.



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