Today’s correspondent not only asked the question, but did most of the research to find the answer! The issue relates to the right of a rescuer to compensation for injuries (both physical and mental) when coming to the aid of those involved in an aircraft accident.

Relevantly, for this discussion, the flight is intra-state that is the aircraft left from and was intended to arrive at an airport all within one state. The rescuer pulled both the pilot and the student pilot from the wreck and performed CPR on one.  During the course of the CPR he injured his shoulder and suffered psychological injuries rendering him now unfit for work.

My initial reaction was:

I can’t see that an aircraft crash is any different to a motor vehicle accident – see “Cop sues offender’s family” (May 22, 2013) and Death of a good Samaritan (June 17, 2012).  The issue is more complex if you are seeking compensation for ‘nervous shock’ rather than physical injuries but not a degree of complexity that should pose a problem for experienced personal injuries lawyers, see Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA (June 17, 2010).  There are issues to do with the level of loss or impairment suffered by you but again that should not be an issue of too much complexity.

My correspondent, however, refers me to the Damage by Aircraft Act 1999 (Cth) and the Wrongs Act 1958 (Vic) s 31.  The Damage by Aircraft Act 1999 (Cth) s 10(1) says that the Act applies

… if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by:

(a)       an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or

(b)        an impact with part of an aircraft that was damaged or destroyed while in flight; or

(c)        an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or

(d)       something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c).

In ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (5 August 2009) French CJ, Gummow, Heydon, Crennan and Bell JJ had to consider liability for an aircraft accident.  In that accident an aircraft operated by ACQ Pty Ltd brought down a power line. Electrical technicians attended to deal with the downed power line.  The plaintiff

…  entered the field before the conductor was isolated in order to see what damage had been caused and assess what repair work might be required… The conductor, being thin, was difficult to see against the overcast sky. The plaintiff approached the conductor, about 65m from his truck, by crossing through lines of plants in a slightly diagonal direction. The plaintiff then stumbled or fell in the muddy conditions and came within 60mm of the conductor. An electric arc between the conductor and the plaintiff took place, injuring him badly.

The appeal dealt with the question of what was meant by s 10(1)(d)- was the plaintiff’s electrocution ‘something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c)’.   The New South Wales Court of Appeal held that ‘… the “something” which caused the plaintiff’s personal injuries was the creation of a danger to persons who got close to the conductor’ ([8]).

In the High Court of Australia (at ([10]):

The appellants … submitted that the legislation did not provide a universal comprehensive scheme to award damages to every person who sustained an injury that was in some way connected to the impact of an aircraft, part of an aircraft, or something which fell from an aircraft whilst in flight. In particular they submitted that “something that is a result of an impact” of those kinds should be construed as being a thing (for example, a fire or a collapse of a building) which “has an immediate (or reasonably immediate) temporal, geographical and relational connection with an impact.”

The appellants argued (at [11])  that the words ‘on, in or under land or water’ used in s 10:

… did “not obviously include” persons brought to the scene by reason of the impact (including those who came to rectify or repair the state of affairs created by the impact). Thus, the words required plaintiffs to be at a place on, in or under land or water which was linked with the impact at the time of the impact.

The appellants (at [15]) conceded that if a plane exploded on landing

… thus setting alight structures nearby and causing death or injury to a plaintiff whose house is burned down. They conceded that a fire fighter who was summoned to fight the fire and who was injured by it would be within s 10(1)(d), even if the scene of the fire was some distance from the fire station. That concession was correct because, as the appellants accepted, there was no reason not to conclude that the fire fighter’s injury was caused by “something” that was a result of an impact between the aircraft and the ground, namely the fire. The appellants, however, distinguished that case from the present one:

“There is the world of difference between a rescuer who is answering the call of either nature or society to save another person … from peril, on the one hand, and on the other hand, a person who comes to a scene of evident danger precisely because the danger is evident and because of their skills, experience and position, occupation, in order to repair or rectify that dangerous position where there is no peril to another person … requiring the risks to be undertaken in order to answer the calls of nature or social duty.”

The court rejected the purported distinction. If the fire fighter was protected so was the linesman who had come to deal with the downed powerline.  At [17] the High Court said ‘The words “on, in or under land or water” serve to distinguish those accidents to which s 10(1) applies from accidents in the air, to which other legal regimes apply.’

It follows, and further it was not challenged in ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook that providing rescue to those in a plane crash would be ‘something’ that is the result of the aircraft impact (s 10(1)(d)).

A person who has the benefit of s 10(1) can recover damages without proof of ‘intention, negligence or other cause of action’ rather it is deemed that ‘the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants’ (s 11). Section 10(1) doesn’t apply where a person suffers ‘mental injury … unless the person… suffers other personal injury, material loss, damage or destruction caused by such a thing’ (s 10(1A)).

The problem is that this Act cannot apply to all aircraft.  My correspondent says ‘aviation Is a federal power’. Given the Australian Constitution came into effect on 1 January 1901, it had to be written before then and indeed the Constitution was written during a number of conventions held in the 1890’s.  Writing in the 1890’s no-one would have thought to give the Commonwealth the power to make laws with respect to aviation.  The Commonwealth does however have the power to make laws with respect to interstate and international trade and commerce (Australian Constitution s 51(1)) so the Commonwealth can make laws with respect to air travel that crosses state or national borders.  The limited power of the Commonwealth is shown in the Damage by Aircraft Act 1999 (Cth) s 9 which says that the Act only applies to:

(a)       Commonwealth aircraft;

(b)       aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution);

(c)        aircraft (including foreign aircraft) engaged in:

(i)        international air navigation; or

(ii)       air navigation in relation to trade and commerce with other countries and among the States; or

(iii)      air navigation conducted by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); or

(iv)       air navigation to or from, or within, the Territories; or

(v)        landing at, or taking off from, a place acquired by the Commonwealth for public purposes.

(Note that by virtue of the Australian Constitution s 122 and the Damage by Aircraft Act 1999 (Cth) s 10(1)(c)(iv) the Damage by Aircraft Act 1999 applies in the Northern and Australian Capital Territories.)

What follows that an aircraft that is taking off and landing within one state (not Territory), and even more importantly from the same airport eg an aircraft that is doing circuits for flight training, will not meet these definitions other than, possibly, s 9(b) where the aircraft is being operated by ‘a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution’). (For a discussion on what is a ‘trading corporation’ see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014)).

If that’s correct, then a person injured by a private aircraft operated solely within a state cannot benefit from the Commonwealth Act.  To fill that gap, state legislatures have passed matching legislation. In Victoria, the Wrongs Act 1958 (Vic) s 31(1) says:

Where material loss or damage is caused to any person or property on land or water by or by a person in or by an article or person falling from an aircraft while in flight taking off or landing then … damages in respect of the loss or damage shall be recoverable from the owner of the aircraft without proof of negligence or intention or other cause of action as if the loss or damage had been caused by the wilful act neglect or default of the owner.

(The legislation is in the same terms in the other jurisdictions – see Air Navigation Act 1937 (Qld); Civil Liability Act 1936 (SA), s 61; Civil Liability Act 2002 (NSW), s 73; Damage by Aircraft Act 1963 (Tas); Damage by Aircraft Act 1964 (WA), s 5(1)).

As with the Commonwealth legislation, the injured plaintiff doesn’t have to prove a lack of reasonable care.  In this case of course the injury was caused during the rescue of the persons from the wreckage of the aircraft rather than from say the impact of the aircraft with the ground or the person on the ground.

This section is very similar to the Commonwealth provision discussed above but it does not have the ‘catch all’ reference to ‘something that is the result’ of the impact.  On the other hand the section doesn’t use the word ‘impact’.  In her article, Pam Stewart (‘Drone danger: Remedies for damage by civilian remotely piloted aircraft to persons or property on the ground in Australia’ (2016) 23 Torts Law Journal 290) says:

‘Not all State provisions contain that form of words [ie “something that is the result of an impact of a kind mentioned”]. In NSW, Tasmania, Victoria and Western Australia, the strict liability provision does not depend on an ‘impact’ and does not refer to “something that is a result of an impact” with an aircraft.

The question then, if the aircraft involved is a private aircraft involved in intra-state flight, is whether the injury was caused by an aircraft while in flight taking off or landing, by a person in an aircraft or by an article or person falling from an aircraft.

The NSW Court of Appeal when deciding Mr Cook’s case said that the question of whether the collision with the powerline caused his injuries (see ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [25]) was:

… a question of fact to be answered by reference to commonsense and experience, and one into which considerations of policy and value judgments necessarily enter. When causation is so regarded, the law has no difficulty in recognising that there can be multiple causes of the one damage.

Without specific authority one can infer that the Victorian Act (is intended to create, along with the Commonwealth legislation, a scheme of strict liability for damage caused by aircraft to those on the ground or water below the aircraft (that is this legislation does not apply to persons travelling in the aircraft – see Leith v Medhurst [1991] 2 VR 362).  It follows that even given the slight differences between the Damage by Aircraft Act 1999 (Cth) s 10 and the Wrongs Act 1958 (Vic) s 31 a rescuer who immediately comes upon the scene and is injured trying to affect the rescue will enjoy the benefit of either provision.  They will rely on the state Act if the aircraft is a private aircraft operating within and the Commonwealth Act in other cases.


A person injured effecting a rescue at the scene of an aircraft accident or at a place of damage caused by the accident and where the aircraft is involved in interstate travel or operated by ‘a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution)’, has the right to recover damages from the owner or operator of the aircraft without the need to prove negligence particularly.

Where the aircraft is an aircraft owned by an individual or an entity that is not a foreign, trading or financial corporation operating solely within one state (but not Territory) then the position is not so clear, but I would suggest that the intention is to extend similar protection to those injured by an aircraft impact and that the link between a rescuer and the accident is sufficiently close to extend the strict liability regime.