An entirely new “Plane Words” aviation policy has recently been produced in Australia for an association of insurance companies which underwrites aviation risks. Apart from the innovative (for Australia) notion of expressing the terms of the policy in clear non-technical language, certain provisions of the policy have been carefully drafted to take account of the views of the South Australian Supreme Court in Maclean v. Maclean: Australian Aviation Underwriting Pool Pty. Limited (Third Party) [1977] 15 S.A.S.R. 306.

In Maclean v. Maclean, an aircraft being flown by the defendant at low level in contravention of the Australian Air Navigation Regulations had hit power lines and plunged into a river. The defendant and his two passengers had extricated themselves from the aircraft but, due to injuries suffered while in the aircraft, one passenger was unable to swim away and drowned. The defendant, with the assent of the third party, consented to judgment being entered against him and claimed indemnity under an insurance policy written by the third party.

Section 3 of the policy (under the heading “Legal Liability to Passengers”) provided cover

“in respect of accidental bodily injury (fatal or non-fatal) to passengers while on board the aircraft or in the course of any of the operations of embarking into or disembarking from the aircraft …”.

The Judge (Hogarth, J.) held that the injuries suffered by the deceased were suffered in the aircraft, were an “accidental bodily injury” and were a substantial cause of his death as they prevented him from putting on a life jacket and swimming. He held, therefore, that the death by drowning fell within the above term of the policy although he did not need to decide whether the deceased died “disembarking from” the aircraft.

The third party claimed that it was not liable to indemnify the defendant under the policy as he had breached a condition of the policy. The General Conditions of the policy included a provision that:—

“the due observance and fulfilment of the terms, provisions and conditions and endorsements of this policy shall be conditions precedent to any liability of the insurers to make any payment under this policy”