Barclay v Penberthy: Employment, Negligence and Pilots

Today the High Court held, by majority, that a pilot, his employer and an aeronautical engineer were liable to Nautronix (Holdings) Pty Ltd for the crash of a plane which a company related to Nautronix had chartered in Barclay v Penberthy; Penberthy v Barclay [2012] HCA 40.

That Court concluded that the pilot, his employer and the engineer were liable in negligence for any economic loss suffered by Nautronix as a result of the loss of its three injured employees after a plane crash caused by engine failure and the pilot's negligent handling in response to that engine failure.

The Court further held that Nautronix could not claim for damages resulting from the loss of its two deceased employees due to the rule established in Baker v Bolton that a person cannot recover damages for the death of another.

The majority further concluded that the amount of damages in this action was to be measured by reference to the market value of the services lost.  That market value was generally to be calculated by reference to the price of employing a substitute less the wages no longer payable to the injured employee.

This decision raises the question of where the limits to the common law of negligence lie? Can employees be considered a type of economic loss?

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