Damage by Aircraft Act 1999

No. 107, 1999 as amended

Compilation start date: 31 March 2013

Includes amendments up to: Act No. 191, 2012

About this compilation

The compiled Act

This is a compilation of the Damage by Aircraft Act 1999 as amended and in force on 31 March 2013. It includes any amendment affecting the compiled Act to that date.

This compilation was prepared on 31 March 2013.

The notes at the end of this compilation (the endnotes) include information about amending Acts and instruments and the amendment history of each amended provision.

Uncommenced provisions and amendments

If a provision of the compiled Act is affected by an uncommenced amendment, the text of the uncommenced amendment is set out in the endnotes.

Application, saving and transitional provisions for amendments

If the operation of an amendment is affected by an application, saving or transitional provision, the provision is set out in the endnotes.

Modifications

If a provision of the compiled Act is affected by a textual modification that is in force, the text of the modifying provision is set out in the endnotes.

Provisions ceasing to have effect

If a provision of the compiled Act has expired or otherwise ceased to have effect in accordance with a provision of the Act, details of the provision are set out in the endnotes.

Contents

1 Short title 1

2 Commencement 1

3 Object of Act 1

4 Definitions 1

5 Meaning of in flight 2

6 Meaning of operator 2

7 Use of an aircraft by employees 3

8 Act binds the Crown 3

9 Application of Act 3

10 Liability for injury, loss etc. 4

11 Recovery of damages without proof of intention, negligence etc. 5

11A Contributory negligence 5

11B Right of contribution 6

12 Regulations 6

Endnotes 7

Endnote 1—Legislation history 7

Endnote 2—Amendment history 8

Endnote 3—Application, saving and transitional provisions 9

Endnote 4—Uncommenced amendments 10

Endnote 5—Misdescribed amendments 11

An Act relating to liability for certain injury, loss, damage or destruction by aircraft, and for related purposes
1 Short title

This Act may be cited as the Damage by Aircraft Act 1999.
2 Commencement 1

Subject to this section, this Act commences on a day to be fixed by Proclamation.

 2

The day fixed under subsection (1) must not be a day that occurs before the day on which ’s denunciation of the Convention on Damage caused by Foreign Aircraft to third Parties on the Surface takes effect.
3 Object of Act

The main object of this Act is to facilitate the recovery of damages for certain injury, loss, damage or destruction caused by aircraft, or by people, animals or things that are dropped, or that fall, from aircraft that are in flight.
4 Definitions

In this Act, unless the contrary intention appears:

aircraft has the same meaning as in the Civil Aviation Act 1988, but does not include model aircraft.

Australian territory has the same meaning as in the Air Navigation Act 1920.

Commonwealth aircraft means an aircraft, other than a Defence Force aircraft, that is: in the possession or under the control of the Commonwealth or an authority of the Commonwealth; or being used wholly or principally for a purpose of the Commonwealth.

 a

in the possession or under the control of the Commonwealth or an authority of the Commonwealth; or

 b

being used wholly or principally for a purpose of the Commonwealth.

Defence Force aircraft means aircraft of any part of the Defence Force, including any aircraft commanded by a member of that Force in the course of duties as such a member.

in flight has the meaning given by section 5.

operator has the meaning given by section 6.
5 Meaning of in flight 1

(1) For the purposes of this Act, an aircraft that is lighter than air is taken to be in flight from the moment when it becomes detached from the earth’s surface until the moment when it becomes again attached to the earth’s surface.

 2

(2) For the purposes of this Act, a power-driven aircraft that is heavier than air is taken to be in flight from the moment when power is applied for the purpose of take-off until the moment when its landing run ends.

 3

(3) For the purposes of this Act, an aircraft that is heavier than air but is not power-driven is taken to be in flight from the moment when it becomes airborne (whether or not it is then attached to any other aircraft or machine) until the moment when its landing run ends.
6 Meaning of operator 1

Subject to subsection (2), if a person uses an aircraft, the person is, for the purposes of this Act, taken to be the operator of the aircraft.

 2

If a person authorises the use of an aircraft but retains control of its navigation, then, for the purposes of this Act:

 a

the person who is authorised to use the aircraft is not taken to be the operator of the aircraft; and

 b

the person who retains control of its navigation is taken to be the operator of the aircraft.
7 Use of an aircraft by employees

If an employee of a person (the employer) uses an aircraft in the course of his or her employment (whether or not the employee is authorised to do so), then, for the purposes of this Act:

 a

the employee is not taken to use the aircraft; and

 b

the employer is taken to use the aircraft.
8 Act binds the Crown

This Act binds the Crown in each of its capacities.
9 Application of Act 1

This Act extends to each external Territory.

 2

This Act does not apply in relation to a Defence Force aircraft.

 3

This Act applies to acts, omissions, matters and things within Australian territory.

 4

Subject to subsection (2), this Act applies in relation to the following:

 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.
10 Liability for injury, loss etc. 1

This section 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).

 1A

However, this section does not apply in relation to a person who suffers mental injury caused by a thing covered by paragraph (1)(a), (b), (c) or (d) unless the person, or property owned by the person, suffers other personal injury, material loss, damage or destruction caused by such a thing.

 2

If this section applies, the following people are jointly and severally liable in respect of the injury, loss, damage or destruction:

 a

the operator of the aircraft immediately before the impact happened;

 b

the owner of the aircraft immediately before the impact happened;

 c

if the operator of the aircraft immediately before the impact happened was authorised to use the aircraft but did not have the exclusive right to use it for a period of more than 14 consecutive days—the person who so authorised the use of the aircraft;

 d

if the operator of the aircraft immediately before the impact happened was using the aircraft without the authority of the person entitled to control its navigation—the person entitled to control the navigation of the aircraft.

 2A

Subsection (2) does not apply to a person if, immediately before the impact happened:

 a

the person was the owner of the aircraft; and

 b

the person did not have an active role in the operation of the aircraft; and

 c

either:

 i

there was a lease or other arrangement in force (whether or not with the owner) under which another person had the exclusive right to use the aircraft; or

 ii

another person had the exclusive right to use the aircraft and there was an agreement in force under which the owner provided financial accommodation in connection with the aircraft.

 3

Paragraph (2)(d) does not apply if the person entitled to control the navigation of the aircraft had taken all reasonable steps to prevent the unauthorised use of the aircraft.

 4

If:

 a

an injury, loss, damage or destruction of the kind mentioned in subsection (1) is a result of a collision or interference between 2 or more aircraft in flight; or

 b

2 or more aircraft jointly cause any such injury, loss, damage or destruction;

this section applies in relation to each of the aircraft.
11 Recovery of damages without proof of intention, negligence etc.

Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants.
11A Contributory negligence 1

(1) If, in an action under sufferer) in respect of whom the injury, loss, damage or destruction was suffered, the damages recoverable must be assessed in accordance with this section.section 11, a defendant proves that the injury, loss, damage or destruction was caused by, or contributed to by, the negligence of the person (the

2

The court must determine the damages that would have been recoverable if there had been no negligence on the part of the sufferer.

 3

The damages determined under subsection (2) must be reduced to the extent the court thinks just and equitable having regard to the share of the sufferer in the responsibility for the injury, loss, damage or destruction.

 4

If any case to which subsection (1) applies is tried with a jury, the jury must determine the damages referred to in subsection (2) and the amount of the reduction under subsection (3).
11B Right of contribution

If, because of an action under in an action in a court of competent jurisdiction in Australian territory, recover by way of contribution, from either or both of the following:section 11, an amount of damages is paid by a person in respect of an injury, loss, damage or destruction, that person may,

 a

any other person jointly and severally liable under section 10 in respect of the injury, loss, damage or destruction;

 b

any other person who caused, or contributed to, the injury, loss, damage or destruction;

such part of the amount paid as the court considers just and equitable.
12 Regulations

The Governor-General may make regulations prescribing all matters:

 a

required or permitted by this Act to be prescribed; or

 b

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Endnotes

Endnote 1—Legislation history

This endnote sets out details of the legislation history of the Damage by Aircraft Act 1999.
Act Number and year Assent date Commencement date Application, saving and transitional provisions
Damage by Aircraft Act 1999 107, 1999 31 Aug 1999 8 Nov 2000 (see Gazette 2000, S574)
Insurance and Aviation Liability Legislation Amendment Act 2002 96, 2002 10 Nov 2002 Schedule 1 (items 1–4): 23 July 1998 (see s. 2) Remainder: Royal Assent —
Statute Law Revision Act 2012 136, 2012 22 Sept 2012 Schedule 6 (items 37, 38): Royal Assent —
Aviation Legislation Amendment (Liability and Insurance) Act 2012 191, 2012 11 Dec 2012 Schedule 1 (items 5, 6, 7(3), (4)): 31 Mar 2013 (see F2013L00210) Sch. 1: (item 7(3), (4))

Endnote 2—Amendment history

This endnote sets out the amendment history of the Damage by Aircraft Act 1999.
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted exp. = expired or ceased to have effect ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted exp. = expired or ceased to have effect
Provision affected How affected
s. 10 am. No. 96, 2002; No. 191, 2012
s. 11A ad. No. 191, 2012
s. 11B ad. No. 191, 2012
s. 13 rep. No. 136, 2012
Schedule 1 rep. No. 136, 2012

Endnote 3—Application, saving and transitional provisions

This endnote sets out applications, saving and transitional provisions for amendments of the Damage by Aircraft Act 1999.

Aviation Legislation Amendment (Liability and Insurance) Act 2012 (No.   191, 2012)

Schedule 1

7 Application provisions

 3

The amendment made by item 5 applies in relation to mental injury suffered on or after the commencement of that item.

 4

The amendment made by item 6 applies in relation to injury, loss, damage or destruction suffered on or after the commencement of that item.

Endnote 4—Uncommenced amendments

This endnote sets out amendments of the Damage by Aircraft Act 1999 that have not yet commenced.

There are no uncommenced amendments.

Endnote 5—Misdescribed amendments

This endnote sets out amendments of the Damage by Aircraft Act 1999 that have been misdescribed.

There are no misdescribed amendments.