Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and summary judgment – “accident”

Brannock v Jetstar Airways P/L [2010] QCA 218

CATCHWORDS: AVIATION – CARRIAGE BY AIR – CARRIER’S LIABILITY – DEATH OR PERSONAL INJURY OF PASSENGER – ON DOMESTIC FLIGHT– where passenger directed by flight staff to descend stairs to tarmac to board aircraft – where passenger could not find exit door – where passenger fell down stairs and was injured – whether there was an “accident” within the meaning of s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – whether there was an unexpected or unusual event or happening external to the passengerSTATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – construction of s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth)

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – whether summary judgment should be given for the defendant/appellant

Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 9B, s 11, s 21, s 21A, s 28, Sch 1A, Sch 1

Issues

Whether the ‘accident’ came within 28 Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the Act“) which relevantly provides:

” … the carrier is liable for damage sustained by reason of … any personal injury suffered by the passenger resulting from an accident which took place … in the course of any of the operations of embarking … .”

The plaintiff/respondent’s described the circumstance of the ‘accident’ in the pleadings as follows:

6. Having descended the stairs, the Plaintiff was unable to find an open door giving access to the tarmac, whereupon he began to ascend the stairs once more with a view to making enquiries of the defendant’s staff as to how he was to reach the aircraft.

7. A number of other passengers were descending the stairs at the time and those passengers offered to show the Plaintiff the way to enter onto the tarmac.

8. Accordingly, the Plaintiff turned and began to descend the stairs once more, whereupon he lost his footing and fell to the foot of the stairs.

Fraser JA agreed with White JA allowing the appeal and summary judgment (the President dissented):

Her Honour White JA helpfully sets out at paragraphs 21 – 32 the legislative scheme, its origins and how it applies.

Meaning of “accident”

[33] In the circumstances of Mr Brannock’s claim the word “accident” in s 28 may be accepted as having the same meaning as in Article 17.[28] “Accident” is employed in the same sequence of phrases in s 28 as in Article 17. While Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) does not carry any international convention directly into domestic law, it is accepted that Part IV extends principles relating to international air carriage into domestic law. In Povey, the High Court observed that, in construing Part IIIC of the Civil Aviation (Carriers’ Liability) Act (which applies the provisions of the Montreal No. 4 Convention), “international treaties should be interpreted uniformly by contracting states”,[29] adding that:

“[t]he ultimate questions are, and must remain: what does the relevant treaty provide, and how is that international obligation carried into effect in Australian municipal law?”

[34] Povey required consideration of the expression “accident” as it appears in s 28. The parties in Povey accepted the correctness of certain decisions of the United States Supreme Court[30] and Sidhu v British Airways Plc,[31] a decision of the House of Lords, which established certain propositions about the construction of the Warsaw Convention. Similarly, Mr Grant-Taylor SC for Mr Brannock, accepted that the correct approach to s 28 may be derived from those decisions.

[35] The starting point for a discussion about what is meant by “accident” in s 28 is Saks.[32] That case involved international travel and fell to be decided under Article 17 of the Warsaw Convention. The respondent/passenger felt extreme pressure and pain in her left ear as the plane in which she was travelling descended to land in Los Angeles on a trip from Paris. As a consequence she became permanently deaf in that ear. She filed a suit alleging that her hearing loss was caused by the negligent maintenance and operation of the jet liner’s pressurised system. The opinion of the Court was delivered by O’Connor J. Her Honour noted that the provision concerning liability for the loss of baggage employed the word “occurrence” not “accident”[33] which implied that the drafters of the Convention understood the word “accident” to mean something different from the word “occurrence”. Otherwise, logically, the drafters would have used the same word in each article. Her Honour particularly noted that the text of Article 17 referred to an accident which caused the passenger’s injury, and not an accident which is the passenger’s injury. Since the word “accident” can be used in many senses this distinction was significant. Her Honour quoted the observation of Lord Lindley in Fenton v J Thorley & Co Ltd:[34]

“The word ‘accident’ is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word ‘accident’ is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.”

[36] Justice O’Connor considered the drafting history of the Warsaw Convention and that the drafters did make an attempt to discriminate between “the cause” and “the effect”: they specified that air carriers would be liable if an accident caused the passenger’s injury. The text of the Convention,[35] her Honour concluded, thus implied that however “accident” is defined, it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone. After a survey of French cases and dictionaries she concluded that the French legal meaning of the term “accident” differed little from the meaning of the term in Great Britain, Germany or the United States. She added that while the word “accident” is often used to refer to the event of a person’s injury, it is also sometimes used to describe a cause of injury:

“…and when the word is used in this latter sense, it is usually defined as a fortuitous, unexpected, unusual or unintended event”.[36]

The conclusion of the Court was:[37]

“…that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.”

It is this latter qualification of flexible application which the primary Judge emphasised.

[37] In Povey, after referring to the analysis of the Warsaw Convention in Saks, Gleeson CJ, Gummow, Hayne and Heydon JJ said:[38]

“Both in French, and in Anglo-American legal discourse (and, we would add, so too in Australian legal discourse) “accident” may be used to refer to the event of a person’s injury or to the cause of injury. By contrast, “accidental” is usually used to describe the cause of an injury rather than the event and is often used as an antonym to “intentional”.”

Their Honours continued:[39]

“In Art 17, “accident” is used to refer to the event rather than the cause of injury. And that event is one which Art 17 requires to be located at a place (on board the aircraft) or otherwise to be fixed by reference to the circumstances of time and place (in the course of any of the operations of embarking or disembarking).

Further, in understanding what is meant by “accident”, it is necessary to give proper weight to the way in which Art 17 relates three different concepts. Article 17 refers to “damage”, to “the death or wounding of a passenger or any other bodily injury suffered by a passenger”, and to “the accident which caused the damage so sustained”. The damage sustained is treated as being distinct from the accident which caused the damage, and both the accident and the damage are treated as distinct from the death, wounding or other personal injury. What that reveals is that the “accident”, in the sense of an “unfortunate event, a disaster, a mishap” is not to be read as being sufficiently described as an adverse physiological consequence which the passenger has suffered. It may be accepted that its happening was not intended. In that sense, what is alleged to have happened may be described as “accidental”. But suffering DVT is not an accident. Rather, as the parties to this appeal accepted, “accident” is a reference to something external to the passenger.”

[38] Their Honours accepted that the meaning of “accident” may encompass a series of acts or may encompass an omission or series of omissions or a combination of acts and omissions.[40] But, they emphasised:[41]

“It by no means follows, however, that asking whether an event was brought about by an act or omission and then classifying the act or omission as “accidental” as distinct from “intentional” is the same as asking whether there has been an “accident” on board an aircraft. In particular, recognising the difficulties in seeking to classify causes of an accident as acts or omissions, or as intended or unintended acts or omissions, does not deny the need, under Art 17, to identify that an accident has occurred on board or in the course of the operations of embarking or disembarking.”

Their Honours accepted that the concept of “accident” was not to be “overrefined” explaining that it invites two questions:[42]

“…first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected?”

It is the answers to those questions which ought to have dictated the outcome of the application below.

[39] Their Honours warned that “[t]here is no basis for introducing, for example, concepts of the common law of negligence to the construction or application of an international treaty”.[43] In Povey, the passenger had alleged that the airline failed to warn him of the dangers of DVT when travelling on a long haul journey.

Conclusion

[52] The accumulation of circumstances as pleaded by Mr Brannock which her Honour likened to the “chain of causes” mentioned in Saks cannot, either individually or collectively, create an event external to the passenger. The stairs were an ordinary feature of embarkation. Mr Brannock’s approach to embarking and using the stairs was peculiar to him. Mr Brannock’s pleaded case is no different from the tripping and slipping cases where recovery has been denied. The primary Judge erred when she concluded that the question of whether the stairs were an “event” external to the passenger was answered by the proposition “whether the stairs were unsafe and whether their unsafe design caused Mr Brannock’s fall are questions of fact for a trial”.

[53] Mr Grant-Taylor submitted the application for judgment could not pass the General Steel Industries Inc v Commissioner for Railways (NSW) & Ors[60] test nor the differently worded summary judgment provisions in r 293 of the UCPR. Rule 293 enables summary judgment to be given for a defendant if the court is satisfied that a plaintiff has “no real prospect of succeeding” on the claim and there is no need for a trial. Notwithstanding that great care must be exercised to ensure that a plaintiff is not improperly deprived of his opportunity for a trial of his case under the guise of achieving expeditious finality, as warned against in General Steel,[61] there can be no doubt in this case that Jetstar’s application for judgment passes the tests of both General Steel and r 293. Once it is concluded, assuming the allegations in Mr Brannock’s pleadings in his favour, that he did not sustain his injury by accident, that is the end of Mr Brannock’s case against Jetstar.

[54] This question has not arisen at appellate level in Queensland and involves the construction of legislation which affects all people who are carried by aircraft within Queensland and Australia. The application for an extension of time should be granted. Leave to appeal should be granted.

Brisbane Barrister – David Cormack

 

 

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