Brannock v Jetstar Airways Pty Ltd [2010] QCA 218 (2011) 273 ALR 391

SUPREME COURT OF QUEENSLAND CITATION: Brannock v Jetstar Airways P/L [2010] QCA 218 PARTIES: WILLIAM JOHN BRANNOCK (plaintiff/respondent) v JETSTAR AIRWAYS PTY LIMITED ABN 33 069 720 243 (defendant/applicant) FILE NO/S: Appeal No 13353 of 2009 DC No 2492 of 2008 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time/General Civil Appeal under s 118 of the District Court of Queensland Act 1967 ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 20 August 2010 DELIVERED AT: Brisbane HEARING DATE: 4 May 2010 JUDGES: McMurdo P, Fraser and White JJA Separate reasons for judgment of each member of the Court, Fraser and White JJA concurring as to the orders made, McMurdo P dissenting ORDERS: 1. The application for an extension of time is granted. 2. The application for leave to appeal is granted. 3. The appeal is allowed. 4. Judgment be entered for the appellant against the respondent. 5. Unless there are submissions to the contrary, the respondent should pay the appellant’s costs of and incidental to the appeal and the application for summary judgment. 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 passenger -- 1 of 18 -- 2 STATUTES – 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 Convention for the Unification of Certain Rules for International Carriage by Air 1999 Convention for the Unification of Certain Rules relating to International Carriage by Air 1929, Art 17 Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293 Air France v Saks (1985) 105 S Ct 1338; (1985) 470 US 392, considered Air Link Pty Ltd v Paterson (2005) 223 CLR 283; [2005] HCA 39, considered Barclay v British Airways Plc [2010] QB 187; [2008] EWCA Civ 1419, followed Brannock v Jetstar Airways Pty Limited, unreported, Clare SC DCJ, District Court of Queensland, No 2492 of 2008, 9 April 2009, related Chaudhari v British Airways Plc [1997] EWCA Civ 1413, followed Fenton v J Thorley & Co Ltd [1903] AC 443, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, applied Malaysian Airline Systems Berhad v Krum [2005] VSCA 232, considered Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33, applied Sidhu v British Airways Plc [1997] AC 430; [1997] 2 WLR 26; [1996] UKHL 5, cited COUNSEL: D Fagan SC, with R C Morton, for the applicant M Grant-Taylor SC for the respondent SOLICITORS: HWL Ebsworth for the applicant Schultz Toomey O’Brien Lawyers for the respondent [1] McMURDO P: Jetstar's application for an extension of time to apply for leave to appeal was filed within 28 days of its learning of the delivery of the judge's reasons and order the subject of this application. In those circumstances, Jetstar's application to extend time for leave to appeal should be granted. I would, however, refuse the application for leave to appeal with costs. These are my reasons. -- 2 of 18 -- 3 [2] This application is from a District Court judge's dismissal of Jetstar's application to strike out Mr Brannock's statement of claim under Uniform Civil Procedure Rules (UCPR) r 171 or to seek judgment against him under UCPR r 293. To succeed, Jetstar must demonstrate that the primary judge was wrong in not accepting Jetstar's contention that Mr Brannock had no real prospects of succeeding on all or part of his claim at trial. [3] Mr Brannock's claim against Jetstar was not brought in negligence but under s 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 … ." [4] White JA has helpfully set out the background to the Act, its origins in the Warsaw Convention 1 which Australia ratified in 1935, and the scheme under the Act. [5] If Mr Brannock can bring himself within s 28, Jetstar is strictly liable for damage suffered by him, subject only to the upper limit of Jetstar's liability. [6] Mr Brannock's pleadings were not placed before this Court but they were referred to by the primary judge in this way: “[14] The statement of claim pleads that Mr Brannock was directed to descend a flight of stairs within the terminal to access the tarmac for boarding. Further: 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. [15] The Defence disputed any "accident" within the meaning of section 28. The Reply was this: Upon finding himself unable to comply with the directive of the Defendant's agent, the Plaintiff proceeded to walk with his travelling companion back up the stairs. After he had walked at least half way up those stairs, he encountered other passengers on the Defendant's flight whom indicated to the Plaintiff and his travelling companion that they thought they knew where to go 1 Convention for the Unification of Certain Rules relating to International Carriage by Air. Signed at Warsaw 12 October 1929. Entered into force in Australia 30 October 1935. -- 3 of 18 -- 4 and "follow them" whereupon the Plaintiff attempted to turn on the stairs which were: (i) steep; (ii) required him to turn in the middle of the stairs without the benefit of a handrail as a consequence of his travelling companion being near to the handrail; (iii) had no non-slip nosings; and (iv) caused him to fall in the manner described in paragraph 8 of the Statement of Claim." 2 [7] To my mind, the most helpful starting point in construing s 28 is the High Court's discussion of it in Povey v Qantas Airways Ltd. 3 Gleeson CJ, Gummow, Hayne and Heydon JJ in the joint judgment emphasised the following matters relevant to the present case. It is important that contracting states uniformly interpret legislation enacted in accordance with international treaties formed under international conventions like the Warsaw Convention. 4 The reference to "accident" in s 28 refers to the event rather than the cause of injury.5 The event must be fixed by reference to the course of embarking.6 There must be bodily injury suffered by the passenger and this damage must be distinct from the accident which caused it. 7 The term "accident" in s 28 is not just an adverse physiological consequence or an unintended happening, but a reference to something external to the passenger.8 An accident may happen because of an act or omission or a series of acts or omissions or because of a combination of acts and omissions.9 As O'Connor J recognised in Air France v Saks, 10 the concept of "accident’ should not be over-refined and it invites two questions: first, what happened during embarking that caused the injury and, second, was what happened unusual or unexpected. The mere fact that a passenger sustained an adverse physiological change in the course of embarking does not identify the occurrence of an accident. 11 [8] The primary judge correctly identified that to establish that Mr Brannock's personal injuries resulted from an "accident" under s 28, he had to identify that what happened during embarking caused the injury he suffered; that it was external to him; and that it was objectively unusual or unexpected.12 [9] The accident under s 28 which Mr Brannock relied on in his pleadings, consistent with Povey and Saks, turned on a series of acts and omissions. These were the unclear or wrong directions as to embarkation provided by Jetstar's agent; the 2 Brannock v Jetstar Airways Pty Ltd, 2492/08 unreported, Clare SC DCJ, 27 February 2009, 9 April 2009 [14] – [15]. 3 (2005) 223 CLR 189; [2005] HCA 33. 4 Above [25]. 5 Above [33]; Air France v Saks (1985) 47 US 392 at 400. 6 Povey [33]. 7 Povey [34]. 8 Povey [34]. 9 Povey [35]. 10 (1985) 47 US 392 at 405. 11 Povey [36]. 12 Brannock v Jetstar Airways Pty Ltd, 2492/08 unreported, Clare SC DCJ, 27 February 2009, 9 April 2009 [13]. -- 4 of 18 -- 5 omission of Jetstar to provide suitable signs or guidance to assist in the embarkation; Mr Brannock's resulting unexpected ascent of the stairs; his turn on the stairs; and his subsequent fall. It is clear that on the pleaded facts this combination of acts and omissions caused his physiological injuries and were external to him. The critical issue in the case is whether the series of acts and omissions leading to his fall were unusual or unexpected in an objective sense. [10] In my view, although ultimately Mr Brannock may have difficulties in proving his claim, that critical issue cannot be determined until the relevant facts are ascertained at trial. I agree with the primary judge's conclusion that "In the circumstances, it is not appropriate to strike out the plaintiff's pleading on the ground that it does not disclose a reasonable cause of action or to give summary judgment for the defendant under Rule 293".13 If the judge erred in reaching that conclusion by wrongly taking into account matters relevant to the concept of negligence, this Court must determine Jetstar's application afresh. In doing so, I would reach the same conclusion as the primary judge for the reasons I have set out in this and the preceding paragraphs [2] – [9]. [11] I would refuse the application for leave to appeal. The orders I would propose are: 1. Application for an extension of time to 26 November 2009 granted. 2. Application for leave to appeal refused with costs. [12] FRASER JA: I have had the advantage of reading the reasons for judgment of White JA. I agree with those reasons and with the orders proposed by her Honour. [13] WHITE JA: On 2 May 2007 Mr William John Brannock and his companion, Mrs Edith Bonnie Wallace, were travelling from Brisbane to Adelaide with Jetstar Airways Pty Limited. Mr Brannock was then aged 84 years. They were proposing to be away holidaying for about a month. [14] They checked in their baggage at the airline counter and were given boarding passes. Eventually they went to the gate. When the flight was called for boarding, they presented their boarding passes to the flight attendant at the gate entry. They were directed by the flight attendant to descend a flight of stairs to the tarmac and board the plane. When they reached the bottom of the stairs, they could not find the correct exit door leading out onto the tarmac and started back up the stairs. When other descending passengers offered to show them the way, Mr Brannock turned and began to descend the stairs again. In doing so, he fell to the foot of the stairs and was injured. [15] Mr Brannock commenced proceedings on 11 September 2008 against Jetstar for damages for personal injury by filing a claim and statement of claim in the District Court at Brisbane. He had complied with the Personal Injuries Proceedings Act 2002 (Qld) pre-proceedings processes. Mr Brannock alleges that the personal injuries which he sustained “resulted from an accident which took place in the course of the operations of embarking the aircraft”. 14 [16] Jetstar filed its notice of intention to defend and defence on 15 October 2008 in which the formal allegations bringing the proceedings within the provisions of the 13 Above [25]. 14 Para 11 of the statement of claim. -- 5 of 18 -- 6 Civil Aviation (Carriers’ Liability) Act 1959 (Cth) were admitted, as was the fact that Mr Brannock fell whilst on the stairs and that he suffered personal injuries, although not to the extent alleged. However, Jetstar denied that the injuries sustained by Mr Brannock resulted from an “accident” within the meaning of s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) because they were not the result of an unexpected or unusual event or happening that was external to him. 15 [17] Mr Brannock filed a reply on 12 November 2008 in which he pleaded as particulars, facts and circumstances which he alleged constituted an unexpected or unusual event or happening that was external to him. They were set out in para 2 as follows: “(a) Upon presenting his boarding pass in the manner described in paragraph 5 of the Statement of Claim, the Plaintiff anticipated that he would be able to board the Defendant’s aircraft by simply entering an air bridge as the Plaintiff ordinarily anticipated would be required. Upon presenting his boarding pass however, the Plaintiff and his travelling companion were instructed to proceed and board the flight by walking upon the tarmac at the Brisbane airport and that, in order to do so, they should exit via a door which was at the bottom of a nearby set of stairs. (b) Upon descending the stairs the Plaintiff found that: (i) there were no signs, diagrams or pictorials demonstrating the path that he ought to take; (ii) there were no servants or agents of Jetstar at, or near, the entrance to the tarmac to direct the Plaintiff or other passengers as to the course that they should take; (iii) the Plaintiff attempted to open the nearby doors but was unable to do so, and (iv) the Plaintiff found himself in the unexpected position of being unable to comply with the directive that had been given to him by the Defendant’s flight attendant to whom he had presented his boarding pass. (c) Upon finding himself unable to comply with the directive of the Defendant’s agent, the Plaintiff proceeded to walk with his travelling companion back up the stairs. After he had walked at least half way up those stairs, he encountered other passengers on the Defendant’s flight whom indicated to the Plaintiff and his travelling companion that they thought they knew where to go and to ‘follow them’, whereupon the Plaintiff attempted to turn on the stairs which were: (i) Steep; (ii) required him to turn in the middle of the stairs without the benefit of a handrail as a consequence of his travelling companion being near to the handrail; 15 Povey v Qantas Airways Limited (2005) 223 CLR 189 at [28]; [2005] HCA 33. -- 6 of 18 -- 7 (iii) had no non-slip nosings, and (iv) caused him to fall in the manner described in paragraph 8 of the Statement of Claim.” [18] On 18 February 2009 Jetstar filed an application to strike out the statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules (‘UCPR’) as disclosing no reasonable cause of action or, alternatively, pursuant to r 293, sought judgment against the plaintiff and costs. That application was heard in the District Court on 27 February 2009. Judgment was delivered on 9 April 2009 dismissing the application. Unfortunately, the Judge’s acting associate did not notify the parties of the delivery of judgment and it was not until the associate emailed the judgment to the parties’ lawyers on 30 October 2009 that they were made aware of the order dismissing the application. [19] On 26 November 2009 Jetstar sought an extension of time within which to file its application for leave to appeal the judgment delivered on 9 April 2009. There was no opposition to the application to extend time. [20] It was common ground below that liability arose under Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) or not at all. In summary, Jetstar contends that her Honour has allowed concepts of common law negligence to influence her characterisation of the alleged unsafe state of the stairs as an unusual, external event and the cause of the injury and thus an “accident” within the meaning of that term in s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). The legislative scheme [21] In order to understand Jetstar’s contention that domestic legal concepts must be put aside when approaching s 28, some understanding of the context in which liability for injuries sustained in the course of air carriage is necessary.16 With the emergence of civil air travel after World War I, there was concern about the lack of uniformity in the field of private air law. This led to an international convention on the international carriage of passengers and goods – the Convention for the Unification of Certain Rules Relating to International Carriage by Air done at Warsaw in 1929 – known as the Warsaw Convention. That Convention entered into force in 1933 and it, and the subsequent amending protocols, have the widest coverage internationally. Australia ratified the Warsaw Convention in 1935. It entered into law in Australia by the Carriage by Air Act 1935 (Cth) which was, in due course, replaced by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), which has been amended from time to time to reflect changes in the international regime. [22] After the Warsaw Convention a number of other international agreements were made to regulate international carriage by air, including carriers’ liability. They include the Protocol amending the Warsaw Convention made at The Hague in 1955 known as The Hague Protocol; the Convention Supplementary to the Warsaw Convention done at Guadalajara in 1961 known as the Guadalajara Convention; the Protocol done at Guatamala City in 1971 known as the Guatamala City Protocol; 16 For a succinct overview, from an Australian perspective, see Edwards, L R, “The Liability of Air Carriers for Death and Personal Injury to Passengers” (1982) 56 ALJ 108; Pyman, T A and L C Morris, “Australia and International Air Law” in K W Ryan (ed), International Law in Australia, 2 nd ed, 1984. -- 7 of 18 -- 8 the Protocol done at Montreal in 1975 known as the Additional Protocol No. 3 to Amend the Warsaw Convention; the Protocol done at Montreal also in 1975 and known as the Montreal Protocol No. 4 to Amend the Warsaw Convention and the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal in 1999 known as the 1999 Montreal Convention. 17 [23] The Civil Aviation (Carriers’ Liability) Act 1959 (Cth) provides that each of the Warsaw Convention (in Part III), the Warsaw Convention as Amended by The Hague Protocol (in Part II), the Guadalajara Convention (in Part IIIA), the Warsaw Convention as modified by The Hague Protocol (in Part II), the Montreal No. 4 Convention (in Part IIIC) and the 1999 Montreal Convention in (Part IA) has the force of law in Australia in relation to any carriage by air to which the relevant agreement applies irrespective of the nationality of the aircraft performing the carriage. 18 [24] The essential feature of the regulatory framework, in so far as it relates to the international carriage of passengers, is the terms of the contract of carriage endorsed on every ticket irrespective of the nationality of the passenger, the country of registration of the aircraft or the origin or destination of the flight or the place where the contract was made. The scheme imposes strict liability on the air carrier for injury sustained by a passenger so that an injured passenger (or estate if the passenger is killed) need not prove negligence provided the passenger comes within the central provision which is Article 17 of the Warsaw Convention. 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.”19 In return for this strict liability the Warsaw Convention imposes an upward limit on the monetary amount of the carrier’s liability. A limitation period of two years is also imposed. A carrier may not contract out of these Convention provisions. Conversely a carrier is not entitled to avail itself of provisions which exclude or limit liability if a passenger is accepted for carriage without a passenger ticket being delivered which contains the relevant terms. A passenger is thus alerted to the carrier’s limited liability and may insure against injury and loss not covered. [25] Lord Hope in Sidhu v British Airways Plc, 20 described the regime thus: 21 “The structure of these two provisions [Articles 17 and 24] seems to me therefore to be this. On the one hand the carrier surrenders his freedom to exclude or to limit his liability. On the other hand the 17 The regulatory structure of international civil aviation is in the Convention on International Civil Aviation, done at Chicago in 1944 and which established the International Civil Aviation Organisation (ICAO). Australia ratified the Convention in 1947 and implemented its provisions (and subsequent amending conventions and protocols) in the Air Navigation Act 1920 (Cth). 18 Civil Aviation (Carriers’ Liability) Act 1959 (Cth), ss 9B, 11, 21 and 21A. 19 See, Civil Aviation (Carriers’ Liability) Act 1959 (Cth), Sch 1 (Warsaw Convention); see also, 1999 Montreal Convention in Schedule 1A, Art 17. 20 [1997] AC 430; [1997] 2 WLR 26. 21 Ibid at 447. -- 8 of 18 -- 9 passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 – which is the issue in the present case – seems to be entirely contrary to the system which these two articles were designed to create… The intention seems to be to provide a secure regime, within which the restriction on the carrier’s freedom of contract is to operate. Benefits are given to the passenger in return, but only in clearly defined circumstances to which the limits of liability set out by the Convention are to apply. To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.” A little later he said:22 “It [the Convention] was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity.” [26] When consideration was being given to the ratification of The Hague Protocol by Australia, it was decided that the Commonwealth Parliament should legislate, to the extent that its constitutional powers allowed, to regulate the liability of air carriers to their passengers in cases outside the Warsaw Convention system. 23 Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) applied many of the rules of the Convention system to certain categories of domestic air carriage. Part IV applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country under a contract for the carriage of the passenger: “(a) between a place in a State and a place in another State; (b) between a place in a Territory and a place in Australia outside that Territory; 22 Ibid at 453. 23 Edwards, L R, “The Liability of Air Carriers for Death and Personal Injury to Passengers” (1982) 56 ALJ 108 at 115. -- 9 of 18 -- 10 (c) between a place in a Territory and another place in that Territory; or (d) between a place in Australia and a place outside Australia”. 24 [27] To deal with the limits on the power of the Australian Parliament to legislate with respect to claims for damages arising out of the death or injury of a passenger on board an aircraft where the point of departure and the destination were both within the same State (or Territory) and no other journey by air was involved, the Australian States enacted legislation substantially incorporating Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth).25 [28] Section 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) concerns the liability of a carrier for death or injury and closely follows Article 17 of the Warsaw Convention. It provides: “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.” [29] The monetary limitation on liability is set out in s 31. In respect of each passenger by reason of his or her injury or death resulting from an accident the limit is $500,000 unless in some manner specified in s 31, some other amount is identified. The effect of Part IV is, that in relation to the carriage to which it applies, the air carrier is liable, without proof of fault or negligence, for damage sustained by reason of the death or personal injury suffered by a 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. This liability is in substitution for any civil liability of the carrier under any other law in respect of the death or injury to the passenger.26 [30] Part IV does not contain any provision corresponding to Article 25 of the Warsaw Convention whereby the carrier is not entitled to the limits of liability if the damage is caused by conduct on the part of the carrier or its servants or agents described as “wilful misconduct”. [31] Although s 28 on its face excludes negligence, nonetheless when assessing damages, if the carrier proves that the damage was caused or contributed to by the negligence of the passenger, the damages recoverable are to be assessed in the manner provided for in s 39. A court is required first to determine the damages that would have been recoverable if there were no limit on the amount of those damages fixed in accordance with Part IV had there been no negligence on the part of the passenger. The damages thus determined are reduced to the extent the court thinks just having regard to the share of the passenger in the responsibility for the damage. If the damages reduced exceed the maximum liability of the carrier fixed in accordance with Part IV, the court is required to reduce the damages to that maximum amount. 24 Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 27. 25 In Queensland, the Civil Aviation (Carriers’ Liability) Act 1964. 26 Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 36. -- 10 of 18 -- 11 [32] The right to recover damages under Part IV is extinguished if an action is not brought within two years after the date of arrival of the aircraft at the destination or, where the aircraft did not arrive at the destination, the date on which the aircraft ought to have arrived or the date on which the carriage stopped, whichever is the later.27 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 27 Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 34. 28 Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33. 29 At [25] citing Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd (1980) 147 CLR 142 at 159 per Mason and Wilson JJ; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 at 186 [70] per McHugh J; at 213 [137] per Kirby J; Siemens Ltd v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418 at 466-467 [153]-[154] per Kirby J. 30 Air France v Saks (1985) 470 US 392; El Al Israel Airlines Ltd v Tsui Yuan Tseng (1999) 525 US 155; Olympic Airways v Husain (2004) 540 US 644. 31 [1997] AC 430; [1992] 2 WLR 26. 32 Air France v Saks (1985) 470 US 392; (1985) 105 S Ct 1338. 33 As does s 29 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). -- 11 of 18 -- 12 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 34 [1903] AC 443 at 453. 35 The convention is in the French language. 36 Saks (1985) 470 US 392 at 400. 37 Ibid at 405. 38 (2005) 223 CLR 189 at 204 [32]. -- 12 of 18 -- 13 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 Ibid at 204-205 [33]-[34]. 40 Ibid at 205 [35]. 41 Ibid. 42 Ibid at 205 [36]. -- 13 of 18 -- 14 [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. The approach below [40] Her Honour identified s 28 as the critical provision which created strict liability for a carrier in defined circumstances involving an accident in the course of domestic travel. Her Honour considered that the issue for her to resolve was whether the fall described by Mr Brannock was capable of constituting an “accident” within the meaning of the Act. If not, she opined, his claim “must inevitably fail”. As will emerge, it was this way of characterising the question which led to her Honour concluding that Mr Brannock’s claim should be permitted to be tested at trial. [41] The primary Judge was referred to and analysed the principal authorities in relation to the construction of s 28 and its analogues in other jurisdictions and proceeded on the basis that: 44 “…for something to qualify as an “accident” within the meaning of section 28, it must: (i) cause the injury complained of; (ii) be external to the passenger; and (iii) be unusual or expected or untoward, in an objective sense.” [42] Jetstar contended below and on appeal that the facts pleaded were incapable of establishing an accident because circumstances going to the safety of the stairs were not relevant and no event external to Mr Brannock was pleaded. Her Honour derived from Povey and Saks that the requirement of something unusual which was external to the passenger reflected the need for proof of two separate things: injury and the accident that caused it. 45 [43] Relying on observations in Povey, 46 her Honour said that the concept of accident should not be overrefined and that the High Court’s use of the expression “event or happening” was not intended to lay down an absolute requirement for a “sudden external action”. 47 At the centre of her Honour’s reasoning was this concern: 48 “The provision of a means of access to the aircraft is not an omission but a positive act. There must be a reasonable expectation that an airline will provide safe access from the terminal to the aircraft. To conclude that the concept of “accident” in section 28 did not extend to the provision of unsafe stairs, or a poorly designed set of stairs, which caused injury, would mean that passengers injured in transit 43 Ibid at 207 [41]. 44 Brannock v Jetstar Airways Pty Limited, unreported, Clare SC DCJ, District Court of Queensland, No 2492 of 2008, 9 April 2009 at [13]. 45 Ibid at [18]. 46 (2005) 223 CLR 189 at 207 [44]. 47 Brannock v Jetstar Airways Pty Limited, unreported, Clare SC DCJ, District Court of Queensland, No 2492 of 2008, 9 April 2009 at [18]. 48 Ibid at [19]. -- 14 of 18 -- 15 would be precluded from compensation for the negligence of the airline, because the carrier’s liability under section 28 is in substitution for any liability under the common law. Such a result would be contrary to the intention and purpose of Part IV of the Act.” [44] On the appeal, Mr Grant-Taylor SC contended that to deny Mr Brannock his opportunity of a trial to test his assertions about the state of the stairs giving access to the tarmac was unjust. Concern of this kind was answered by Kirby J in Povey. His Honour said: 49 “If the outcome derived by these techniques [of interpretation] sometimes appear unjust to local litigants, the injustice may be called to notice by the courts concerned. Sufficient criticisms by courts and others may ultimately enliven the cumbersome process of treaty re-negotiation and amendment or national supplementation of treaty rights. This has happened in the past with the Warsaw Convention, as the several schedules to the Carriers’ Liability Act illustrate. What is impermissible is an attempt to manipulate the language of the international treaty to avoid an outcome that seems harsh by contemporary domestic perspectives. Few developments would so undermine the growing development of international law as this.” (footnotes omitted) [45] Mr Grant-Taylor SC contended that in construing s 28 the focus should not be so much upon the fall down the stairs (which he characterised as the “event”) but its scope and parameters; and that when the chain of causes was considered it was sufficient to constitute an “accident”. He submitted that the requirement for the event to have been one external to Mr Brannock meant no more than the injury was not an internal physiological change, such as the ear injury in Saks. He argued that the “unusualness, unexpectedness or untowardness” of the occurrence was “patent” when examined in its entirety, that is, the abortive attempt to locate the door affording access to the tarmac, the return up the stairs and then the commencement of a re-descent down the stairs. [46] The primary Judge referred to and distinguished a number of slipping, falling or tripping cases considered in a claim brought under Article 17 of the Warsaw Convention and its statutory equivalents where recovery was denied. It is necessary to mention only a few. In Chaudhari v British Airways Plc, 50 the claimant, while attempting to leave his seat to attend the toilet, was unable to stand upright (he was a frail person) and consequently fell on his hipbone sustaining injury. The Court of Appeal concluded that what befell the claimant was not caused by any unexpected or unusual event external to him “but by his own personal, particular or peculiar reaction to the normal operation of the aircraft”. [47] In Barclay v British Airways Plc, 51 a passenger, attempting to reach her seat in a row of four behind some reclining seats had to bend sideways, and as she lowered herself into her seat with her body weight towards the right, her right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left. She sustained injury to her knee. In considering whether what occurred constituted an 49 Povey (2005) 223 CLR 189 at 234 [143]. 50 [1997] EWCA Civ 1413. 51 [2010] QB 187; [2008] EWCA Civ 1419. -- 15 of 18 -- 16 accident, Lord Justice Laws, with whom the other members of the Court agreed, said:52 “If the appellant’s case is good, then Article 17.1 would appear to impose liability for a very wide range of injuries suffered on board aircraft. Any slip or fall resulting merely from contact with an inert piece of equipment, installed and operating as intended, would constitute an accident. Indeed, it is hard to see how any injury, save only one caused by an autonomous collapse or deterioration in the passenger’s state of health having nothing to do with conditions on the aircraft, would be excluded: there would presumably always be some event causing the injury, which could be categorised as an “accident”… But even if that goes too far, the multitude of instances where on [counsel for the passenger’s] case there would certainly be an “accident” discloses, in my judgment, a scenario which is far distant from the careful balance of interests struck by the Convention…” [48] His Honour concluded:53 “…that Article 17.1 contemplates, by the term “accident”, 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. This gives the term a reasonable scope which sits easily in the balance the Convention strikes…There was no accident here that was external to the appellant, no event which happened independently of anything done or omitted by her. All that happened was that the appellant’s foot came into contact with the inert strip and she fell. It was an instance, to use Leggatt LJ’s words in Chaudhari, of “the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft”.” [49] The primary Judge referred to Air Link Pty Ltd v Paterson54 noting that it concerned an issue about the expiration of time but added that:55 “…implicit in the judgments of the High Court and courts below was the acceptance that a fall caused by the unsafe positioning of stairs to the aircraft could constitute an accident. The stairs turned over. The present case is obviously not so extreme.” With respect, that overstates the position in Paterson. The issue before the High Court in Paterson was whether the respondent’s statement of claim, filed shortly before the expiration of the two year period of limitation in the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) and making no reference to that Act, was a proceeding brought under the Act. If not, it was susceptible to strike out. [50] The majority said56 that para 4 of the statement of claim was expressed in terms “which attract s 28 [of the Civil Aviation (Carriers’ Liability) Act]”. That paragraph read: 52 Ibid at [34]. 53 Ibid at [35]-[36]. 54 (2005) 223 CLR 283; [2005] HCA 39. 55 Ibid at [22]. 56 Ibid. -- 16 of 18 -- 17 “When alighting from [Air Link’s] aircraft at Dubbo Airport, at about 4.00 pm, on or about 25 September 1998, [Mr Paterson] stepped on to a set of stairs at the bottom of the stairway of [Air Link’s] aircraft. The set of stairs was not properly and safely positioned and turned over underneath [Mr Paterson], causing him to fall onto the ground, as a consequence of which he suffered injuries loss and damage.” Their Honours did not further refer to any points of defence as to whether those facts could constitute an “accident”. Kirby J commented that Air Link had argued that there was no recital of facts essential to bring the proceedings within Part IV and, in particular, that there was no allegation that what had happened to Mr Paterson was an “accident”. 57 The stairs were alleged to be unsafe because the proceedings were, in fact, couched in conventional domestic terms as a cause of action in tort and contract not under s 28. [51] Her Honour thought the allegation in Paterson “not dissimilar” to Malaysian Airline Systems Berhad v Krum.58 There the passenger suffered an onset of sciatica by the positioning of the lumbar support in the aircraft seat when it was reclined. Ashley JA, with whom Eames and Nettle JJA agreed, found the circumstances “an unusual or unexpected event or happening” because the position of the lumbar support “could not be altered because its operating mechanism was broken”. 59 That caused the passenger to adopt an awkward posture in response to discomfort and so sustain injury. 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) & Ors60 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 57 Ibid at [66]. 58 [2005] VSCA 232. 59 Ibid at [31]. 60 (1964) 112 CLR 125; [1964] HCA 69. 61 Ibid at [130]. -- 17 of 18 -- 18 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. Orders 1. The application for an extension of time should be granted. 2. The application for leave to appeal is granted. 3. The appeal is allowed. 4. Judgment be entered for the appellant against the respondent. 5. Unless there are submissions to the contrary, the respondent should pay the appellant’s costs of and incidental to the appeal and the application for summary judgment. -- 18 of 18 --