The COVID-19 pandemic has brought significant change to the lives of many, bringing with it unprecedented statutory allowances across many industries including in aviation law.
On 22 April 2020, the Queensland Parliament passed new legislation that allows courts to extend statutory time limits – giving parties more time to commence or take steps in court proceedings.
The legislation is called the COVID-19 Emergency Response Act 2020 (Qld). The Act is good news for potential litigants as it acknowledges the current restrictions placed on court proceedings and empowers courts to grant extensions of time whereas there was previously no such legal mechanism. We consider it is applicable to some strict liability air carrier accident injury and death cases in Queensland in addition to many other kinds of personal injury claims involving non charter or RPT aviation.
There is usually a limitation period of 3 years for anyone wanting to bring a claim for personal injury damages in Queensland and more prescriptive pre-proceeding notice requirements under, for example, the Personal Injuries Proceedings Act 2002 (Qld). Even more restrictively, if you have been injured on an intrastate or interstate flight and can bring proceedings in Queensland, you may be barred from filing a claim after 2 years from the date of the injury or accident (under the Civil Aviation Carriers’ Liability Act 1964 (Qld) “CACL Act Qld”), as opposed to the 3 year limitation for other personal injury claims.
This brief window of 2 years in the CACL Act Qld reflects the position on international air carrier liability found in the Warsaw and Montreal Conventions, which also has a 2 year limit on bringing no fault international air accident death and injury claims.
In addition to providing courts and litigants with a means to extend usually strict court deadlines on claims, the Act creates a suite of other regulation making powers to respond to the COVID-19 emergency in Queensland including: modifying or waiving requirements for people to physically attend a place; placing moratoriums on evictions of residential tenants; prohibiting termination of retail leases; and it also appoints a small business commissioner to assist small businesses in relation to COVID-19 response measures.
Commonwealth and other states
Other states have enacted or are in the process of enacting their own COVID-19 legislative response measures. In NSW for example, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) provides similar regulation making authority to temporarily amend judicial dates and time frames.
To date, it appears that the Commonwealth has not enacted legislation that will modify statutory limitations for international air carrier liability claims subject to the Warsaw or Montreal Conventions, nor would we expect it to be able to extend a timeframe agreed by international consensus through diplomacy and compromise. It may well be a matter for ICAO to ensure litigants in international air disaster cases that may well arise during this unprecedented time are not prejudiced by court delays in ways that other litigants may not be.
We will continue to closely monitor legislative changes which may impact air carrier liability and other aviation laws applicable to our clients and prospective claimants.
Karina Galliford & Joseph Wheeler