Anderson v Network Aviation Pty Ltd - [2019] WADC 175

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ANDERSON -v- NETWORK AVIATION PTY LTD [2019] WADC 175
CORAM:   BRADDOCK DCJ
HEARD:   22-23 JULY 2019
DELIVERED          :   13 DECEMBER 2019
FILE NO/S:   CIV 3900 of 2017
BETWEEN:   NORMAN ANDERSON
Plaintiff

AND

NETWORK AVIATION PTY LTD
Defendant

Catchwords:

Aviation - Carriage by air - Carrier's liability - Injury to passengers - 'Accident' - Definition - International convention - Warsaw convention - Article 17

Legislation:

Civil Aviation (Carriers' Liability) Act 1959 (Cth)
Civil Aviation (Carriers' Liability) Act 1961 (WA)

Result:

Action dismissed

Representation:

Counsel:

Plaintiff	:	Mr B G Bradley
Defendant	:	Mr D A Lloyd

Solicitors:

Plaintiff	:	Bradley Bayly
Defendant	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

Air France v Saks (1985) 470 US 392
Barclay v British Airways [2008] EWCA Civ 1419; [2010] QB 187
Brannock v Jetstar Airways Pty Ltd [2010] QCA 218; (2010) 273 ALR 391
Chaudhari v British Airways Plc [1997] EWCA Civ 1413
Parkinson v Qantas Airways Ltd (Unreported and unpublished, NSWDC, 17 October 2002
Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189
Sethy v Malev Hungarian Airlines Inc (US District Court S.D.N.Y., No 98 Civ 8722 (AGS), 31 August 2000)
Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142
Sorial v Virgin Blue Airlines Pty Ltd (Unreported and unpublished, NSWDC, 3 November 2008)

BRADDOCK DCJ:

Introduction

Norman Anderson, the plaintiff in this matter, (Mr Anderson) was a bus driver. At the relevant time, he was employed as a bus driver at Solomon Mine in the north of Western Australia. He, along with others working in the north of Western Australia, was employed on a 'fly‑in/fly-out' contract basis. He worked two weeks and then had a week off. On his week off, he returned to Perth and had been doing so since November 2015.
On the morning of 24 February 2016, Mr Anderson flew from Perth to the Solomon Mine Airport on a Fokker 100 aircraft (F 100) operated by Network Aviation Pty Ltd, the defendant in this action (Network Aviation).
The F 100 is a small plane and Solomon Mine Airport is a small airport. Upon arrival at the airport, passengers disembark the aircraft by means of stairs, which are wheeled up to the door of the plane on the tarmac. On the morning in question, Mr Anderson was returning to work from Perth. He was dressed, as required, in his working clothes, including his high visibility shirt and his steel capped boots. When the time came to disembark, Mr Anderson took his bag from the overhead locker and went to the exit where the stairs had been wheeled into position. He went to descend the stairs. He caught the heel of his right boot somehow on the platform at the top of the stairs, as he went to step down. He lost his balance and fell to the bottom, landing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WADC 175
Decision Date: 13 DECEMBER 2019

CaseChat Overview and Summary

In the case of Anderson v Network Aviation Pty Ltd, the plaintiff sought compensation for injuries sustained during an air journey. The dispute centred on the interpretation of the term 'accident' as defined under the Warsaw Convention and its application to the circumstances of the plaintiff's injury. The case was heard in the Federal Court of Australia, which was tasked with determining whether the plaintiff's injury qualified as an 'accident' under the Convention, thereby potentially limiting the carrier's liability.

The primary legal issue was the interpretation of the term 'accident' within the context of the Warsaw Convention and its incorporation into Australian law through the Warsaw Convention Act 1954. The court needed to decide whether the plaintiff's injury, which occurred due to a misstep while boarding the aircraft, constituted an 'accident' that was external to the plaintiff. This required the court to consider both Australian and international jurisprudence, particularly the decision in Brannock v Jetstar Airways Pty Ltd, which had previously interpreted the term 'accident' narrowly.

The court began by noting the importance of interpreting international conventions with a view towards uniformity and certainty, as emphasized in prior cases such as Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd. The court found that the Brannock decision, which held that an 'accident' should be interpreted as an unexpected or unusual happening external to the passenger, was pertinent. Applying this definition, the court examined the plaintiff's actions and the circumstances leading to the injury. The court concluded that the plaintiff's injury, which resulted from a misstep while attempting to board the aircraft, was not an 'accident' as it was not an unexpected or unusual event external to the plaintiff. Instead, the plaintiff's own actions in attempting to board the aircraft contributed to the incident. Consequently, the court held that the plaintiff's claim did not qualify for compensation under the Warsaw Convention.

The Federal Court dismissed the plaintiff's claim, holding that the injury did not constitute an 'accident' under the Warsaw Convention. This decision underscored the importance of adhering to the international definition of 'accident' when applying the Convention in Australian courts.

Orders

Orders of the court

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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

The Commonwealth Act involves the enactment as Australian law of various provisions from international conventions. Section 6 of the WA Act incorporates s 28 of the Commonwealth Act. Thus, international authorities, as well as Australian, are important to the interpretation and construction, in this instance, of s 28 of the Commonwealth Act. It has been said, that 'great store is set upon certainty and uniformity of application' by states contracting to international conventions.[13][13] Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142, 159. It is useful to start with Brannock, decided on 20 August 2010 in the Queensland Court of Appeal. The decision directly concerned the interpretation of s 28 of the Commonwealth Act and the word 'accident'. Mr Brannock during the course of boarding a Jetstar flight, was directed to descend a flight of stairs to exit onto the tarmac and from there to the plane. Mr Brannock descended the stairs but could not find the correct exit door and started to go back up the stairs. Half way up he met fellow passengers who were on their way down and said they would show him the way. He turned, began to descend, then fell and was injured. Mr Brannock sued Jetstar for personal injury. Jetstar moved to strike out the claim as disclosing no reasonable cause of action, which was dismissed by the District Court. On appeal, Jetstar succeeded. It was held, inter alia, that an 'accident' for the purposes of the Warsaw Convention is an unexpected or unusual happening external to the passenger. It was said that the definition should be applied in a flexible manner, but there is no basis for introducing concepts of the common law of negligence.[14] Further, it was held that the chain of events which led to the accident suffered by Mr Brannock did not create 'an event external' to him. The stairs were an ordinary feature of embarkation. It was Mr Brannock's approach to embarking and using the stairs which were peculiar to him.[14] Brannock 273 ALR 391, 392. McMurdo JA (dissenting) said that the concept of accident should not be over-refined. He was not persuaded to strike out the pleading as showing no reasonable cause of action. White JA, in the plurality, said the accumulation of circumstances, as pleaded by Mr Brannock which were likened to the chain of causes mentioned in Saks, could not either individually or collectively create an event external to the passenger. Mr Brannock's pleaded case was no different from the tripping and slipping cases where recovery has been denied.[15][15] Paragraph 52. Although dissenting in the result on the strike out application, McMurdo JA said:[16]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.White JA, reviewed the legislative scheme.[17] He then considered the meaning of accident:[18]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. Accident is employed in the same sequence of phrases in s 28 as in article 17. While pt 4 of the Commonwealth Act does not carry any international convention directly into domestic law, it is accepted that pt IV extends principles relating to international air carriage into domestic law. In Povey, the High Court observed that in construing pt 3(c) of the Commonwealth Act (which applies the provisions of the Montreal No. 4 Convention) 'international treaties should be interpreted uniformly by contracting States' adding that further 'the 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?'[16] Paragraph 9.[17] Paragraph 21 – par 32.[18] Paragraph 33.