In brief - Injury to passenger not caused by unexpected or
A recent decision in the Supreme Court of Queensland provides
another example of the reluctance of courts to find that an
"accident" has occurred in the course of air carriage in
circumstances where there is not clear evidence of some unusual and
Passenger on flight claims he suffered injuries due to cramped
In the case of Nguyen v Qantas Airways Limited (2013) QSC 286,
Justice Boddice in the Supreme Court of Queensland found that a
plaintiff who claimed to have suffered injuries aboard a flight
from Brisbane to Los Angeles as a result of a cramped seat had not
suffered an "accident" within the meaning of the word as
used in Article 17 of Montreal Protocol number 4 to the Warsaw
Convention as scheduled to the Civil Aviation (Carriers' Liability) Act 1959.
Passenger claims that cabin crew failed to assist him
Dr Nguyen, a medical general practitioner, claimed that he was
seated in seat 55G on the Qantas flight, that his seat would not
fully recline and the passenger seated in front of him kept his
seat fully reclined, as a result of which he became very cramped
and was forced to contort and strain his body for lengthy periods.
He claimed his comfort was further restricted by an audiovisual box
under the seat in front.
He claimed to have become unwell during the flight and that,
despite his distress, the cabin crew generally failed to assist
When is a carrier liable for injuries suffered by a
Article 17 of the Warsaw Convention provides that the
...is liable for damage sustained in the event of
the death or wounding of a passenger or any other bodily injuries
suffered by a passenger, if the accident which caused the damage so
sustained took place on board the aircraft or in the course of any
of the operations of embarking or disembarking.
There must be a cause separate from the "injury"
There must be an "event or happening" that is
unexpected or unusual.
There must be an event that is external to the passenger.
He also noted that what is required is proof that the injury was
caused by an unexpected or unusual event that is external to the
passenger. (Povey v Qantas Airways Limited (2005) 223 CLR
Supreme Court finds that passenger's evidence is not
Justice Boddice concluded that the plaintiff's evidence that
his seat lacked full recline was inconsistent with documentation
completed by him on arrival in Los Angeles. He did not accept the
plaintiff's evidence in relation to the lack of seat recline
and also did not accept his evidence in relation to the positioning
of the audio entertainment box, which the Judge found was to the
side on the other side of the leg strut rather than in front of the
He was also not satisfied that the plaintiff's evidence and
that of other family members as to what occurred on the flight was
The judge preferred the evidence of the cabin crew.
Passenger's seat operated normally and cabin crew did not
ignore his complaints
He concluded that the injuries sustained by the plaintiff arose
in the circumstances where his seat was operating in its normal
manner. In those circumstances it could not be said that the
injuries constituted an "unusual and/or unexpected event"
that was external to the plaintiff. It did not constitute an
accident within the meaning of Article 17.
Similarly, the judge did not accept that the cabin crew ignored
or did not respond to the complaints from the passenger.
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