ON 2 OCTOBER 2012, the High Court of Australia delivered Barclay v Penberthy [2012] HCA 40 (2 October 2012)

1.It was confirmed that the rule in Barker v Bolton [1808] EWHC KB J92; (1808) 1 Camp 493 [170 ER 1033] continues to form part of the common law of Australia so that the death of a person does not in and of itself create a cause of action giving rise to a claim for damages. The court held that the employer who lost two employees in an aviation accident could not recover damages for their death even thought their death was caused by the negligence of others.

2.Confirmed that an action per quod servitium amisit (“per quod“) continues to form part of the common law of Australia so that an employer may be awarded damages for the loss of services of an injured employee. The court held that the employer could recover damages from the negligent pilot, his employer and aeronautical engineer for the market value of the loss of the services of its injured employees, calculated with reference to the cost of substitute labour less the wages no longer payable to the injured employees.

3.Held that the negligent pilot and employer owed a duty to the employer of the passengers no to cause it economic pure loss.