Supreme Court of New South Wales

Part 12

Damage by aircraft

72 - Trespass or nuisance by aircraft

Information alert

(cf former s 2 (1) and (5) of Damage by Aircraft Act 1952)

(1) No action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with.

(2) In this section, “Air Navigation Regulations” means the regulations made under the Air Navigation Act 1920 of the Commonwealth and includes such of the provisions of those regulations as are applicable to and in respect of air navigation within New South Wales by virtue only of the Air Navigation Act 1938.


73 - Surface damage by aircraft or articles falling from aircraft

Information alert

(cf former s 2 (2), (3) and (5) of Damage by Aircraft Act 1952)

(1) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage are recoverable 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 of the aircraft.

(2) However, where the material loss or damage is caused in circumstances in which:

(a) damages are recoverable in respect of that loss or damage by virtue only of subsection (1), and

(b) a legal liability is created in some person other than the owner to pay damages in respect of that loss or damage, the owner is entitled to be indemnified by that other person against any claim in respect of that loss or damage.

(3) Where the aircraft concerned has been bona fide demised, let or hired out for a period exceeding 14 days to any other person by the owner of the aircraft, and no pilot, commander, navigator or operative member of the crew of the aircraft is in the employment of the owner, references in this section to the owner are to be read as references to the person to whom the aircraft has been so demised, let or hired out.

(4) In this section:

“article” includes mail or animal.

“loss or damage” includes, in relation to persons, loss of life and personal injury.

South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312

Parkes Shire Council engaged South West Helicopters to provide a helicopter and pilot to conduct a weed survey. The helicopter was owned by Country Connection. The helicopter struck a power line owned by Essential Energy and crashed, killing the pilot and council employees on board, including Mr Stephenson. Mr Stephenson’s relatives commenced proceedings against the various parties involved, including claims for “nervous shock”.

The majority held that the nervous shock claims were precluded by the operation of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), because the salient event was the death of a passenger on the aircraft in the course of carriage by air. Claims by the family were therefore claims “in respect of” the death of Mr Stevenson and should have been dismissed: [163], [364].

It was not necessary to express a concluded view as to whether “material loss or damage” in s 73(1)

extends to mental distress or psychiatric injury, although one may note that s 73(4) defines “loss or damage” to include personal injury, and personal injury elsewhere in the Act includes mental injury: [326]. “Material loss or damage” was held to include psychiatric injury in the United Kingdom, under a provision identical in terms to s 73(1): [325]-[326].

Last updated:

10 Nov 2024

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