The Australian High Court found that a claim for psychiatric harm made by the widow and children of a man killed in a helicopter accident is a claim ‘in respect of the death of the passenger’. The phrase ‘in respect of’ is a broad relational phrase and it does not confine the claim to a direct claim for the passenger’s death rather than the indirect claim of the family. A concurring, but minority, judgment went so far as to describe the phrase ‘in respect of’ as a ‘phrase of the widest import’.
This was not good news for the family however. Instead of suing under section 35(2) of the Australian Civil Aviation (Carriers’ Liability) Act they sued under the common law and any claim was out of time under the CACL Act. The CACL Act gives a right to claim without proving negligence ‘in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger’. The wrong cause of action had been used.
Under South African law, in the same context, the phrase ‘in respect of the death of the passenger’ would be similarly interpreted. There is no reason to limit the wide import of the phrase ‘in respect of’. If you use it, you must accept the consequences. This claim arose from an accident that occurred in 2006 showing that in most places in the world access to justice is neither easy nor instant.
The case is Parkes Shire Council v South West Helicopters (Pty) Ltd.