Reported Decision: 75 NSWLR 354233 FLR 416[2010] ALMD 3505
New South Wales
Court of Appeal
CITATION: Air Link Pty Ltd v Paterson [2009] NSWCA 251 HEARING DATE(S): 4 August 2009
JUDGMENT DATE:
20 August 2009JUDGMENT OF: Allsop P at 1; Ipp JA at 1; Sackville AJA at 95 DECISION: Appeal dismissed with costs. CATCHWORDS: AVIATION - carriage by air - carriers' liability - statutory liability of carrier for personal injury suffered by passenger – Civil Aviation (Carriers’ Liability Act) 1959 (Cth) s28 - construction to recognise international source of terms used by Parliament - Convention for the Unification of Certain Rules Relating to International Transportation (Warsaw Convention) Article 17 – Hague Protocol – Montreal Protocol – injury occurred while passenger disembarking from small aeroplane – whether accident cause of injury – required externality – unusual, unexpected and external event – discharge of onus of proof can occur in circumstances where precise character and details of the external event are not proved - DAMAGES – general damages - whether pre existing condition - injury aggravated pre-existing knee injury – injury to other knee as a result – use of expert evidence – expert evidence subject to rational analysis – clear explanation as to why unable to resolve differences between experts – rule in Watts v Rake - DAMAGES – pure economic loss – evidence capable of supporting case for loss of economic capacity – finding of trial judge based on the evidence - WORDS AND PHRASES – “accident” - Civil Aviation (Carriers’ Liability Act) 1959 (Cth) - s28 LEGISLATION CITED: Australian Constitution
Civil Aviation (Carriers' Liability) Act 1959 (Cth)
Civil Liability Act 2002
Judiciary Act 1903 (Cth)
Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 1926)
Hague Protocol of 1955
Montreal Protocol No 4 of 1975
1999 Montreal Convention for the Unification of Certain Rules for International Carriage by AirCATEGORY: Principal judgment CASES CITED: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; 223 CLR 251
Air France v Saks 470 US 392 (1985)
Barclay v British Airways Plc [2008] EWCA Civ 1419; [2009] 1 All ER 871
EMI Australia Ltd v BES [1970] 2 NSWR 238
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Fenton v J Thorley & Co Limited [1903] AC 443
Garcia Ramos v Transmeridian Airlines 385 F Supp 2d 137 (2005 D. Puerto Rico)
Fulop v Malev Hungarian Airlines (2001) 175 F Supp 2d 651
Gotz v Delta Air Lines Inc 12 F Supp 2d 199 (1998 D. Mass)
Gulf Air Company GSC v Fattouh [2008] NSWCA 225; 251 ALR 183
In re Deep Vein Thrombosis and Air Travel Group Litigation [2003] EWCA Civ 1005; [2004] QB 234
In re Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72; [2006] 1 AC 495
Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110
Malaysian Airline Systems Berhad v Krum [2005] VSCA 232
Olympic Airways v Husain 540…
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Details
- Case
- [2009] NSWCA 251
- Decision Date
CaseChat Overview and Summary
Air Link Pty Ltd appealed to the Full Federal Court against a judgment of a single judge awarding damages to Mr Paterson for personal injury sustained while disembarking from a small aeroplane operated by Air Link. The dispute concerned the statutory liability of Air Link as a carrier for the injury suffered by Mr Paterson, which arose from an incident during the carriage by air.
The primary legal issue before the Full Federal Court was whether Mr Paterson's injury was caused by an "accident" within the meaning of s 28 of the *Civil Aviation (Carriers' Liability) Act 1959* (Cth). This required the court to consider the construction of the term "accident" in light of the Warsaw Convention, specifically Article 17, and its subsequent protocols, which form the international source of the statutory provisions. The court also had to determine whether the trial judge had erred in assessing damages, particularly concerning the aggravation of a pre-existing knee injury and the award for pure economic loss.
The Full Federal Court, comprising Allsop P, Ipp JA, and Sackville AJA, reasoned that an "accident" under Article 17 of the Warsaw Convention, and by extension s 28 of the Act, requires an unusual, unexpected, and external event. The court affirmed that the onus of proof for such an event can be discharged even if the precise character and details of the external event are not fully proven. Regarding damages, the court found that the trial judge's assessment, including the consideration of expert evidence and the rule in *Watts v Rake*, was open to her on the evidence presented, and that the evidence was capable of supporting the finding of loss of economic capacity.
Consequently, the appeal was dismissed with costs.
The primary legal issue before the Full Federal Court was whether Mr Paterson's injury was caused by an "accident" within the meaning of s 28 of the *Civil Aviation (Carriers' Liability) Act 1959* (Cth). This required the court to consider the construction of the term "accident" in light of the Warsaw Convention, specifically Article 17, and its subsequent protocols, which form the international source of the statutory provisions. The court also had to determine whether the trial judge had erred in assessing damages, particularly concerning the aggravation of a pre-existing knee injury and the award for pure economic loss.
The Full Federal Court, comprising Allsop P, Ipp JA, and Sackville AJA, reasoned that an "accident" under Article 17 of the Warsaw Convention, and by extension s 28 of the Act, requires an unusual, unexpected, and external event. The court affirmed that the onus of proof for such an event can be discharged even if the precise character and details of the external event are not fully proven. Regarding damages, the court found that the trial judge's assessment, including the consideration of expert evidence and the rule in *Watts v Rake*, was open to her on the evidence presented, and that the evidence was capable of supporting the finding of loss of economic capacity.
Consequently, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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