Judgment date: 20 August 2009

Air Link Pty Limited v Paterson [2009] NSWCA

NSW Court of Appeal1

In Brief

In circumstances where steps from an aircraft gave way without any evidence as to why, but also no evidence of the passenger doing anything unusual or unlawful, the NSW Court of Appeal held that this amounted to "an unexpected or unusual event that is external to the passenger" as per the seminal judgment of O'Connor J in Air France v Saks 470 US 392 (1985). Consequently the carrier was liable under Article 17 of the Warsaw Convention.

Background

The respondent fell at Dubbo Airport (in Central New South Wales) while disembarking from a small passenger aeroplane operated by the appellant. The rear exit of the aeroplane had a set of steps which folded out, but which did not reach the ground, so a lightweight aluminium step was placed below the aeroplane's steps to allow passengers to disembark. Whilst disembarking, the respondent fell forward striking his knees on the tarmac. He later suffered significant problems with his knees.

The respondent claimed damages in the District Court of New South Wales pursuant to the Civil Aviation (Carriers' Liability) Act 1959 (Cth). Section 25K of the Act provides that Article 17 of the Warsaw Convention2 as amended by the Hague Protocol of 1955 and the Montreal Protocol No. 4 of 1975 and as appearing in Schedule 5 of the Act, has the force of law in Australia in relation to international air travel covered by its terms3.

Article 17 provides:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury 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".

The respondent was carrying a laptop computer slung over his shoulder and another bag with clothes in it. He put his foot on the aluminium step. At trial, the primary judge found that the step moved as the appellant put his weight on it, although he could not conclude from the evidence what the cause of that movement was.

Nevertheless, the primary judge held that the respondent's injury was suffered by him as a result of an "accident" for the purposes of Article 17, and the carrier was therefore liable. The respondent was awarded both general damages and damages for loss of economic capacity. The appellant appealed to the New South Wales Court of Appeal.

Court of Appeal Judgment

The essential question on appeal was whether what happened involved an "accident" covered by the Act, s 28 and Article 17 of the Warsaw Convention. The Court of Appeal surveyed a number of leading international cases on this issue.

The Court of Appeal recognised that the "seminal case" in this area was the decision of the United States Supreme Court in Air France v Saks 470 US 392 (1985), in particular the judgment of O'Connor J. Her Honour surveyed the background to and travaux préparatoires of the Warsaw Convention, noting the distinction between an accident (in the sense of an event) which caused an injury, and an accident which is an injury. O'Connor J held that Article 17 of the Warsaw Convention is engaged only if a passenger's injury is caused by "an unexpected or unusual event or happening that is external to the passenger". In contrast, it is not engaged when the injury "indisputably results from the passenger's own internal reaction to the usual common normal and expected operation of the aircraft".

In Povey v Qantas Airways Limited 223CLR189, the High Court of Australia4 concluded that deep vein thrombosis was not covered by Article 17 as amended by the Hague and Montreal No. 4 Protocols. The High Court accepted Saks as stating relevant principles.

The House of Lords decision in In re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1AC495 reached the same result as in Povey.5

In the instant case, Air Link submitted that Mr Paterson had not proved that any relevant event was unexpected or abnormal or unusual because it had not been proved what caused the lightweight aluminium step to move. The Court of Appeal rejected this reasoning. The evidence showed that Mr Paterson did not jump on to the step nor do anything unusual. He had used this type of step before and did not do anything different from what he normally did. It was therefore reasonable for the primary judge to infer that whatever did cause the step to give way was an unusual or unexpected event. In this respect the Court of Appeal held that the reasoning of Korman J in Girard v American Airlines Inc [2003 US Dist Lexis 14506] was appropriate: "It is not usual or expected that the stairs of a terminal bus would abruptly give way, nor would an injury incurred by such a defeat be within the normal operation of aircraft or airline".

The Court of Appeal therefore concluded that there was an "accident" within the meaning of Article 17 of the Convention.

The Court of Appeal also commented on a number of American decisions cited to it which appeared to restrict the meaning of "accident" in Article 17 to events that involve a malfunction or abnormality in the aircraft's operation.6 The Court of Appeal found it unnecessary to deal further with these cases but stated: "there must be at least some doubt that these cases involve judicial glosses on the words of the article that do not find their source in the words of Article 17 itself, or, indeed, in the words of O'Connor J in Saks."

Implications

The judgment of the NSW Court of Appeal is consistent with decisions of the United States Supreme Court, House of Lords and High Court of Australia. It takes the law one step further, in holding that where the passenger is engaged in normal activity and there is no other evidence of an unusual event, a court may nevertheless hold that an unknown unusual event was responsible for the incident.

Footnotes

1 Allsop P, Ipp JA and Sackville AJA.

2 Convention for the Unification of Certain Rules Relating to International Transportation by Air done at Warsaw on 12 October 1929.

3 The claim was brought under s 28 of the Act which restates Article 17. It was agreed between the parties at first instance that there was no material difference between the terms of section 28 and of Article 17.

4 Gleason CJ, Gummow, Hayne and Heydon JJ, Kirby and Callinan JJ concurring, McHugh J dissenting. 5 The Court of Appeal in the instant case found no reason to decide between the differing opinions of Baroness Hale and Lord Mance in that case, as to whether an unintended event such as a fall would or would not be an "accident" if it originated from an internal condition or characteristic of the passenger.

6 Eg Gotz v Delta Airlines Inc 12F Supp 2d 199 (1998 D.Mass); UK's Garcia Ramos v Transmeridian Airlines 385F. 2D137 (2005 D. Puerto Rico) Sharma v Virgin Atlantic Airways 2006 US Dist Lexis 20127.

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