Domestic passenger “accident” claim decision

In a recent judgement, the plaintiff was awarded damages as a result of an “accident” occurring from an unexpected or unusual event or happening.

In the case of Paterson v Air Link Pty Ltd [2008] NSWDC 241 (4 November 2008), Malcolm Paterson (the plaintiff) injured his left knee whilst disembarking from an aircraft owned and operated by Air Link Pty Ltd (the defendant) during an interstate domestic carriage in Australia. The plaintiff alleged that once the aircraft had landed a ground attendant placed an aluminium step below the exit to the aircraft. He alleged that the step flipped from underneath him and he fell to the ground.

The plaintiff sought damages against the defendant pursuant to section 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (the Act), which provides for the strict liability of a carrier for damage sustained to a passenger by reason of an accident during embarkation or disembarkation. The definition of “accident” is found by reference to Article 17 of the Warsaw Convention.

Was there an “accident” for the purpose of the Act?

Judge Elkaim referred necessarily to the only High Court authority to have considered Article 17, being Povey v Qantas Airways Ltd[1]. The High Court adopted the interpretation of “accident” in the US Supreme Court case of Air France v Saks[2], which stated that in order for the plaintiff to succeed in this case, he must establish:

1. there had been an unexpected or unusual event or happening;
2. that the unexpected or unusual event or happening must have been external to the plaintiff. Thus the injury must not have been the plaintiff’s “own internal reaction to the usual, normal, and expected operation of the aircraft”; and
3. a causal link between the injury and the unusual or unexpected event.

Was there an “unexpected or unusual event or happening”?

His Honour referred to Parkinson v Qantas Airways Ltd[3], in which an aircraft passenger caught her foot on a normal part of a seat whilst moving along a line of seats to avoid a queue along one of the aisles. This was held not to be an unusual or unexpected event within the meaning of Povey. Similarly, in Carswell v Qantas Airways Ltd[4], it was held that a person tripping over an armrest cover which had fallen on the floor of the aircraft is not an unexpected and unusual event.

His Honour further referred to the US case of Girard v American Airlines[5], a case which was factually similar to the present one. As the plaintiff was leaving a bus that had taken her from the terminal to the aircraft, she flipped forward on the stairs and landed on the ground on her right knee. It was held that it is not usual or expected that the stairs of a bus would abruptly give way, thus the event was both external and unexpected.

In this case, His Honour found that he could not reach a conclusion as to what caused the step to move, but did determine that the event was unusual or unexpected. There was no direct evidence of a defect in the step but also no evidence that the step gave way because of some act by the plaintiff. As the plaintiff’s injury was not a result of his own “internal reaction to the usual, normal, and expected operation of the aircraft” (Saks at 406), His Honour concluded that the step gave way as a result of an external factor.

His Honour awarded judgment for the plaintiff in the sum of $439,500 as a result of an injury resulting from an “accident” within the meaning of the Act.

This decision was recently heard on Appeal in the NSW Court of Appeal, and a decision is currently awaited.

 

Written by Allison Radcliffe, Associate