The following judgement was released yesterday in the NSW Supreme Court. Makes for some
interesting reading.
The
full pdf file is here and the finding was published
yesterday.
In part:
327. then pointed out (at 485):
"From a contractual perspective, the non-passenger is ordinarily in a very different position from that of a passenger.
The non-passenger does not receive a ticket and thus does not receive direct notice of the limitations on the carrier's liability imposed by the Warsaw Convention. The non-passenger does not ordinarily have the same opportunity as the passenger to insure against the relevant risk.
In Sidhu, Lord Hope stressed the importance of the restrictions on the "great principle" of freedom of contract as an element in the reasoning supporting the conclusion that the Warsaw Convention is, in effect, a code governing the carrier's liability to a passenger injured or killed in the course of aircraft operations. That consideration does not apply in the case of non-derivative claims by non-passengers.
It is of course true, from a carrier's perspective that any exposure to unlimited liability increases the unpredictable risks associated with the conduct of an airline. Yet, on any view, some risks are outside the scope of the Warsaw Convention... the question is where the line should be drawn. In my opinion is not necessary to resolve that question in the present case, which ultimately turns on the construction of Part IV of the CA Act."
The authorities to which counsel for South West referred all involved factual scenarios which were quite different from the circumstances of the present case. A number of them involved claims by passengers as opposed to non-passengers. None of them involved any consideration at all of the decision in Magnus.