The NSW Court of Appeal decision of Air Link Pty Ltd v Paterson considered the meaning of 'accident' in the context of injuries suffered by a passenger when alighting from an aircraft, following a domestic flight.
The decision provides insight into the level of proof that is required to establish the existence of an 'accident' under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (Carriers' Liability Act) and Article 17 of the Unification of Certain Rules Relating to International Transportation (Warsaw Convention). It also provides a helpful discussion of the meaning of the term 'accident', based on international jurisprudence.
The passenger, Mr Paterson, was alighting from a Piper Navajo Chieftain aircraft at Dubbo airport, New South Wales. The aircraft was operated by Air Link Pty Ltd (Air Link).
The aircraft's rear exit had a set of steps that unfolded but that did not reach the ground, at the foot of which a ground attendant had placed a lightweight aluminium step. The trial judge determined that, whilst Mr Paterson was alighting, the lightweight aluminium step moved, and Mr Paterson fell forward onto all fours, striking his knees on the tarmac.
The trial judge was unable to conclude the precise reason for the movement of the step.
Section 28 of the Carriers' Liability Act
Section 28 of the Carriers' Liability Act governs the carriage of passengers by air where such carriage is not covered by the relevant international conventions (for example, the Warsaw Convention).
The wording of section 28 is drawn substantially from Article 17 of the Warsaw Convention and is as follows:
Subject to this Part, where this Part applies to the carriage of
a passenger, the carrier is liable for damage sustained by reason
of the death of the passenger or any personal injury suffered
by the passenger resulting from an accident which took place
on board the aircraft or in the course of any of the operations of
embarking or disembarking.
The debate at trial on the question of liability focussed on whether there had been an 'accident', as envisaged by section 28 of the Carriers' Liability Act.
Allsop P and Ipp JA
In the NSW Court of Appeal, Allsop P and Ipp JA considered the jurisprudence for the term 'accident' by referring to a number of international judgments (by virtue of section 28 owing its form to the Commonwealth Parliament's adoption of an international instrument).
In particular, their Honours referred to the principles enunciated in the US Supreme Court decision of Air France v Saks  USSC 42, which concluded (in the context of the Warsaw Convention) 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.
- ...when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident...
- Any injury is the product of a chain of causes, and [the Court] require[s] only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.
One aspect of Air Link's appeal, on whether an 'accident' had occurred, was based on the finding of the trial judge that the aluminium step moved, but that he was unable to conclude what the cause of that movement was. On this basis, Air Link submitted that Mr Paterson had failed to prove the existence of an unexpected, abnormal or unusual event, because he had not proved what caused the aluminium lightweight step to move (and that such proof was necessary for Mr Paterson to succeed).
Air Link also argued that the term 'accident' had the following meaning, on the basis of the House of Lords decision in Barclay v British Airways PLC  1 All ER 871:
'A distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger'.
Allsop P and Ipp JA examined the evidence before the trial judge and concluded that:
'Mr Paterson put his foot on the step and placed weight on it in a manner which reflected his alighting from the plane in what might be said to be a usual way.'
Allsop P and Ipp JA then considered the following two factual findings made by the trial judge:
- That whatever caused the step to move was 'an unusual or unexpected event'.
- That the 'step gave way as a result of an external factor'.
Allsop P and Ipp JA concluded that these findings were open to the trial judge (and were in the Court's view, correct). In concluding that there had been an 'accident', the Court of Appeal reasoned that:
- There was an event: the sudden movement of the step.
- The sudden movement of the step was physically external to the passenger.
- The sudden movement of the step was unexpected and abnormal.
It was submitted by Air Link that the sudden movement of the step could be normal in circumstances where a large, somewhat overweight passenger stepped on the edge of the step and that the event could be expected as the likely behaviour of the step if someone stepped on its edge, as opposed to the centre. Allsop P and Ipp JA rejected this submission as 'overrefined and artificial'.
Allsop P and Ipp JA concluded that:
'Mr Paterson had discharged the onus of proof in showing that the event which caused him to fall was one which was unusual, unexpected and externally caused, even if the precise details and character of that external cause were not proved'.
Having determined that there was an unexpected and unusual event or happening, external to Mr Paterson, Allsop P and Ipp JA declined to comment further on the correctness of the approach in Barclay and whether the proper test for the existence of an 'accident' was whether there had been '[a] distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger'.
Sackville AJA concurred with Allsop P and Ipp JA and expressed further reasons for rejecting Air Link's appeal including that:
- As Mr Paterson was not responsible for the provision or placement of the step and as Mr Paterson did not act in a way that caused the step giving way, the event was 'external' to Mr Paterson.
- The step was not operating as intended, as it shifted when Mr Paterson placed his weight on the step.
- Mr Paterson did not need to show that the event causing injury occurred independently of anything done or omitted by him.
- Mr Paterson was not required to show the reason why the aircraft or the aircraft's equipment did not operate in the usual manner.
The case provides guidance on the level of proof that will be required when a plaintiff seeks to establish the existence of an 'accident' under the Carriers' Liability Act. In particular, it is clear that a plaintiff will not necessarily be required to establish precisely what caused the event that is said to be an accident. In some cases it may be sufficient to simply establish that there was an event, that the event was external to the passenger and that it was unexpected or abnormal.
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