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Parkinson v Qantas Airways Ltd (Unreported and unpublished, NSWDC, 17 October 2002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Sorial v Virgin Blue Airlines Pty Ltd (Unreported and unpublished, NSWDC, 3 November 2008)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

1. 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.

2. 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).

3. 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 on the tarmac (the fall).  As a result of the fall, he suffered injuries.  With the help of a mate he was able to get up and attempted to start his work.

4. Mr Anderson found he was unable to carry on doing his job.  He was sent down to Perth the following day and sought medical treatment.

The action

1. The proceedings were tried in this court on 21 - 23 July 2019.  On 25 October 2017 his solicitors issued a writ.  The statement of claim, which accompanied the writ, claimed damages for injury, loss and expense, suffered by reason of the fall, under the Civil Aviation (Carriers' Liability) Act 1961 (WA) (the WA Act). It is pleaded that s 6 of the WA Act incorporates, relevantly, s 28 of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the Commonwealth Act). The claim by Mr Anderson is brought against Network Aviation under s 28 of the Commonwealth Act.

2. In its defence, Network Aviation denied that Mr Anderson suffered pain and bodily injury and did not admit the other relevant facts pleaded. Network Aviation also pleaded the Commonwealth Act, noting that s 36 of the Commonwealth Act provides that an action under the WA Act was in substitution for any other civil liability under any other law in respect of any alleged injury. Network Aviation pleaded that Mr Anderson was only able to recover, under s 28 of the Commonwealth Act, if the bodily injury was caused by an 'accident' which took place on board the aircraft or during the course of any operations of embarking and disembarking from the aircraft. Network Aviation denied liability to Mr Anderson pursuant to s 28 of the Commonwealth Act.

3. Further, Network Aviation pleaded contributory negligence, as provided in s 39 of the Commonwealth Act. This was rightly not pursued at trial.

4. Mr Anderson's claim against Network Aviation proceeded on liability alone. At trial, it was conceded by Network Aviation that Mr Anderson suffered bodily injury. It was common ground that s 28 of the Commonwealth Act was the only basis upon which Mr Anderson could recover. It was common ground that the WA Act and the Commonwealth Act gave effect to international conventions, specifically the 'Warsaw Convention' the full title of which is the Convention for the Unification of Certain Rules relating to International Carriage by Air. This was opened for signature at Warsaw on 12 October 1929. The 1999 Montreal Convention of 28 May 1999 updates the Warsaw Convention but under article 17 of both conventions, it is provided that:

   The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any operations of embarking or disembarking.

5. Article 17 is incorporated into WA law in pt VI of the WA Act, under which Mr Anderson must bring his claim. In these circumstances, no concept of negligence at common law or domestic statutory provisions, in lieu of common law, have any relevance.

Evidence - the incident

1. Mr Anderson gave evidence to the effect that he was employed between November 2015 and February 2016 by Network Aviation.  He said he used the stairs to disembark the F 100 on each 'swing'.  At the time, he was physically reasonably fit and active as this was required to perform his job.  He identified photos[1] of some stairs which, including the platform at the top, amount to 12 stairs.  He identified that there is a non‑slip nosing to each step with a yellow strip across it.  He described an unexceptional journey to Solomon Mine Airport.

   [1] Exhibit 1.

2. Upon arrival he got up, took his bag and went to leave via the door and the stairs.  He said that on the platform, he extended his hand to the rail on the right-hand side and placed his left foot on the top of the platform.  He marked, on a large photograph,[2] the position of his left foot.  He said that he was wearing fairly new work boots of the 'Steel Blue' brand.  As he was moving his foot to step down, he felt his heel catch on something, he could not say what.  Although in the transcript his evidence is not specific as to which foot he was speaking of, it was his right foot on my understanding of the description that he gave.  There was no dispute about this.  He said 'it sort of stopped me stepping onto the next step'.  He fell forward.  He put his arms out but missed the railing and slid to the bottom of the stairs, landing on his left shoulder and head, on the tarmac, heavily.  He said that his legs 'came over', he rolled and landed on his right-hand side and lay there until a mate came over to assist him.

   [2] Exhibit 2.

3. He did not notice any injuries immediately.  He got up and went to the camp, where he found that he had hurt himself.  The next day he was sent home and sought medical treatment.  He has not been able to work as a driver since or, indeed, to work at all.  Mr Anderson's evidence was not challenged in cross-examination.  In my view, Mr Anderson was a forthright, honest witness who gave the facts without any attempt to embellish or complain.

Evidence - the stairs

1. Network Aviation tendered, by consent, a report prepared by Mr Ian French, an adjuster employed by Echelon, wherein he reported that he inspected, at Perth Airport on 4 July 2019, a set of stairs, which he measured and described in his report.[3]  It could not be asserted that these were the stairs used on the morning of 24 February 2016, but he was told that they were similar.

   [3] Exhibit 3.

2. He described the stairs as comprising 11 steps up to a landing measuring 2.2 m x 1.9 m at the top.  Each step was 1.2 m wide, 18 cm in height, excluding the nosing, and a depth of 26 cm.  The steps were enclosed by aluminium balustrading, with a handrail at a height of 1 m on either side.  The stairs themselves were made of aluminium tread plate, which is a material commonly used in building for flooring, cladding, toolboxes, ramps and any situation that requires an ultra‑hardwearing surface.  The plate has a regular diamond pattern moulding on the surface topside only and the thickness of the entire plate is approximately 4 mm.  The height of the moulded diamond pattern is approximately 1 mm to 1.2 mm from the flat sheet base.  Anti-slip stair treads or nosings are applied to the leading edge of the middle 90 cm of each step.  This anti-slip tread is made of fibreglass, coloured hazard yellow and containing a luminous contrast strip.  Mr French said that the height of the nosing was 3.8 mm from the top of the moulded diamond pattern on the stairs he examined.

3. Network Aviation also called evidence from Mr Matthew John Di Masi.  Mr Di Masi was employed by Fortescue Metals Group as Aerodrome Supervisor at Solomon Mine Airport at the time of the fall.  He was in charge of all ground handling at the site.

4. He said there were two sets of stairs for the F 100 aircraft, which was operated by Network Aviation, now called QantasLink.  The two sets of stairs were used interchangeably.  The stairs were inspected visually on a day to day basis, by the ground handling staff, first thing each morning.  They were also inspected more formally, monthly, by a contractor, Thiess.

5. Mr Di Masi had worked at the airport from August 2013, save for five months in the Perth Head Office.  He was not aware of any problems with the nosings or the stairs in his time there.  His evidence was that he would expect to be told of any defects in the equipment.  He also said that no changes had been made to the stairs or the nosings since February 2016.  He identified photographs that had been taken by his boss, Mr Darryl Evans, on 7 June 2017 but could not be sure whether these were the stairs used on the day in question.

6. He said that other planes had other stairs but they all have similar nosings.  He confirmed that no photographs were taken of the stairs at the time of the fall.  All he could say was that the stairs looked the same as those in the photos.

7. Fortescue Metals Group have an online system for recording any incidents at the airport.  Mr Di Masi was not aware of any other falls related to F 100 stairs.

8. Mr Di Masi prepared a spreadsheet[4] which was an analysis of planes using Solomon Mine Airport in 2016.  He himself had measured the stairs and the nosing in June of 2019.  He described from his measurements that the height of the nosing above the tread of the step was 2 mm.  He also described that there were bolt heads visible on the nosing.  He measured the step and rise with his ruler from the office at Solomon Mine Airport.  Enquiries subsequently revealed that this was a steel ruler, with a measuring gauge which extended to the edge of the steel.  A photograph of the ruler was introduced in evidence.[5]  His evidence was unchallenged.

   [4] Exhibit 4.

   [5] Exhibit 6.

9. Network Aviation called Mr Darryl Evans, the supervisor of airports for Fortescue Metals Group and at Solomon Mine at the time.  He was a manager of the ground services and maintained the overall regime.  He had no knowledge of any defects in any stairs and would expect to be told if any had arisen.  He confirmed the stairs at Solomon Mine were purchased in 2012.  He produced the invoice in respect of those particular stairs.  The invoice was tendered.[6]  He was not cross‑examined.

   [6] Exhibit 7.

10. Mr Kevin Taylor was employed by Qantas Airlines.  In February 2016, he was responsible for 13 airports, including Solomon Mine Airport.  He was responsible for acquisitions of stairs.  He identified the photographs[7] as typical of 'push up' stairs.  The nosings on those stairs were used on virtually all stairs currently.  He said the stairs varied in their designations depending on the plane for which they were required.  There was no dispute about his evidence.

    [7] Exhibit 1.

Findings of fact

1. I have no difficulty in finding that Mr Anderson fell from the top platform of the 'push up' stairs of the F 100 airplane at Solomon Mine Airport on 24 February 2016.  The mechanism by which he fell, according to his evidence, which I accept, is that he placed his left foot on the top platform edge and went to step forward and down.  He reached out with his right hand at the same time.  Somehow, he snagged the edge of the heel on his work boot, causing him to lose his balance and end up at the bottom of the stairs.  The precise cause of that snagging of his boot heel is not specifically made out by the evidence.

2. It was postulated in argument that it was either the edge of the step nosing, the non-slip surface itself or some other unidentified cause which impacted his right foot.  In my view, it is more likely than not that his heel in attempting to move across the top step and down was impeded by either the friction surface or the edge of the nosing.  This would have been brought about by a slight misjudgement as to the distance between his boot and the platform.  It was sufficient to cause him to lose his balance, due to his forward momentum in anticipation of stepping down.  This incident was, in any ordinary use of the word, an accident.

3. I have noted the different measurements taken by Mr French and Mr Di Masi of height of the nosings above the metal plate of the stairs.  The variance is 1.8 mm.  In my view, this is minimal and occurred in circumstances where Mr French was told to measure similar stairs in Perth.  There is no suggestion that this signifies any defect in either set of stairs.

4. From all of the evidence, I am satisfied on the balance of probabilities that both sets of stairs at Solomon Mine Airport were in good order at the relevant time.  The two sets of stairs were not distinguished for the purposes of the evidence at this trial.  It is not actually known which set of stairs was wheeled out for this flight on that day.  There was no evidence of any malfunction in the stairs themselves or any misplacement of the stairs on the morning in question.

5. The use of 'push up' stairs to the F 100 aircraft had been the practice at Solomon Mine Airport since its opening in 2012.  There was no evidence of there ever being any defect or problem with the stairs or the nosing of the stairs.  The stairs were appropriately monitored.  The only incident recorded at Solomon Mine Airport involving the stairs was that of Mr Anderson on 24 February 2016.

6. The same type of stairs as those at Solomon Mine Airport were also in use at Christmas Creek and Cloudbreak Airports, also operated under the supervision of Mr Di Masi.  I find that the use of these stairs in conjunction with the F 100 was a usual and expected manner of disembarkation of passengers.

7. From the data compiled of the landings and departures from Solomon Mine Airport, it was submitted that there were 570 flight movements of the F 100s in the 2016 calendar year.  On those figures taken with the passenger numbers, it was calculated that in excess of 11,000 passengers traversed each set of stairs in that year.  I accept those round figures.  I conclude that many thousands of passengers used stairs of this description at that location in the years since the airport opened in 2012.

8. In conclusion, there was nothing unusual about the use or operation of the stairs, either generally or, on the day in question.  No other accident, incident or injury had been recorded in relation to the use of those stairs.  In summary, Mr Anderson in the vernacular 'missed his footing' and simply fell.

Submissions

1. Counsel for Network Aviation submitted in closing that there was no dispute about the mechanism of the incident.  He noted that negligence was not pleaded and would not in any way assist Mr Anderson's claim.  He conceded that what occurred was an 'accident' in common parlance, but submitted that under the relevant convention and statutory provisions it was not a compensable accident.  He said Mr Anderson fell because of contact with an 'inert piece of equipment', which was operating exactly as expected.  In such circumstances, the fall did not satisfy the characteristics of an 'accident' under article 17 of the Warsaw Convention, as interpreted by authorities in Australia, England and Wales and the United States of America, amongst other jurisdictions.

2. Counsel for Network Aviation relied upon Saks[8] for the proposition that where a passenger suffers bodily injury from the passenger's own internal reaction to the 'usual normal and expected operation of the aircraft' there is no accident within the meaning of the Convention and therefore of s 28 of the Commonwealth Act.

   [8] Air France v Saks (1985) 470 US 392.

3. Further, counsel relied upon Brannock,[9] where a claim by a passenger who fell down aircraft stairs which were 'an ordinary feature of embarkation' was struck out before trial.  Counsel submitted that Brannock was consistent with Chaudhari[10] and Barclay[11] in the English Court of Appeal.  Those cases, he submitted, had factual similarities to Mr Anderson's situation, in that they involved a fall by a passenger.  The judgment in Brannock referred to the balance of interests that had to be struck in the Warsaw Convention, in the context of the authorities in England and Wales and the United States.  The claimant in Brannock failed because there was no event independent of anything done or omitted by the claimant.  The claimant's foot came into contact with a strip on the floor and she fell.  It was an instance said counsel, to use Lord Justice Leggett's words in Chaudhari of 'the passenger's particular personal peculiar reaction to the normal operation of the aircraft'.

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

   [10] Chaudhari v British AirwaysPlc [1997] EWCA Civ 1413.

   [11] Barclay v British Airways [2008] EWCA Civ 1419; [2010] QB 187.

4. It was difficult to discern the precise reasoning in submissions by counsel for Mr Anderson. Counsel agreed that s 28 was the applicable provision. He relied upon Povey[12] and Saks.  He pointed out that there was nothing in the evidence to suggest that Mr Anderson was walking in a peculiar manner.  He suggested that the snagging of Mr Anderson's heel was an event which was unusual and unexpected, from his viewpoint as the passenger.  He relied upon dicta of Justice O'Connor in Saks, that it was only required that 'one link in the chain of causation which resulted in bodily injury was [an] unusual or unexpected' event.  He accepted that that event was to be external to the passenger, as distinct from an internal physiological occurrence.  He argued that in this instance, the catching of the heel which triggered the fall was an unusual and sudden event and was external to Mr Anderson.  He argued that without the boot catching Mr Anderson would not have fallen and that it was unusual and unexpected.  Counsel also averted to the facts of various other authorities contained in both parties' lists of authorities, which, however, did not advance his proposition any further.

   [12] Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189.

The law

Article 17 of the Warsaw Convention in Australian Law

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. It was remarked there that the essential feature of the regulatory framework relating to international carriage of passengers is that the air carrier bears strict liability for injuries sustained by a passenger, provided the passenger can demonstrate that the injury occurred on board the aircraft or in the course of operations embarking or disembarking.  The counterpart is that there is a monetary limit to the carrier's liability and a limitation period of two years.

7. In Povey[19] the High Court accepted the correctness of the decision of the United States Supreme Court in Saks.  In Saks, the passenger felt pain in her ear whilst descending into Los Angeles and became permanently deaf.  She alleged negligent maintenance of the pressurised air system.  This was not established.  Justice O'Connor referred to the use of the word 'accident' in article 17 and noted that it referred to an accident which caused the passenger's injury and not an accident which was the passenger's injury.  Justice O'Connor, having considered the text of the convention, concluded 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.  She concluded that liability under article 17 arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger and that the definition should be flexibly applied after assessment of all the circumstances surrounding the passenger's injuries.

   [19] Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189.

8. Povey was an occurrence of deep vein thrombosis (DVT).  The High Court noted that both in French and Anglo American legal discourse and also in Australian legal discourse 'accident' may be used to refer to the event of a person's injury or to the cause of an injury.  The High Court concluded 'accident' is used to refer to the event rather than the cause of the injury.  That event is one which article 17 requires to be located at a place (on board the aircraft) or otherwise fixed by reference to the circumstances of time and place (in the course of any operations of embarking or disembarking).

9. The High Court said:[20]

   Further, in understanding what is meant by 'accident', it is necessary to give proper weight to the way in which article 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 accident and the damage are treated as distinct from death, wounding or other personal injury.  What that reveals is that 'accident' in the sense 'unfortunate event, a disaster and 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 it 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.

   [20] Povey.[34].

10. In Brannock White JA said, in reference to the High Court's decision, that their Honours accepted that the concept of accident was not to be over-refined explaining that it invites two questions.[21]  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?  White JA referred[22] to the argument for Mr Brannock, which was that:

    The focus should not be so much upon the fall down the stairs (which he characterised as an event) but its scope and parameters: and that when the chain of causes were considered it was sufficient to constitute an accident.  He submitted that the requirement for the event to be an external to Mr Brannock meant no more than the injury was not an internal physiological change, such as the ear in Saks.Counsel argued that the unusualness and expectedness or untowardness of the occurrence was patent when examined in its entirety and that the abortive attempt to locate the door affording access to the tarmac and the return up the stairs then the re-commencement of the descent down the stairs.

    [21] Paragraph 36.

    [22] Paragraph 45.

11. In the light of those comments in Brannock, it seems to me that counsel for Mr Anderson was seeking to advance something similar to Mr Brannock, which was unsuccessful on the strike out application.  White JA went on to refer to Chaudhari v British Airways and Barclay v British Airways as two examples of where a fall on an aircraft was not caused by an expected or unusual event external to the passenger.  Hence White JA's conclusion[23] that:

    The accumulation of circumstances as pleaded by Mr Brannock which the Judge below had likened to the chain of causes mentioned in Sakscould not either individually or collectively create an event external to the passenger.

    The position, in my view, is no different in Mr Anderson's circumstances.

    [23] Paragraph 52.

12. Article 17 encompasses, from my overview of the cases cited, a wide range of circumstances which extend from the injury to the passenger's ear in Saksand the DVT litigation in England and Wales, through to what was, perhaps, one original concern of the framers of the 1929 convention, an accident arising from an aviation related risk of some malfunction or abnormality in the aircraft's operation.  Aviation disasters where aircraft are lost for no apparent or discernible reason would come within the convention.  Between the two extremes are grouped cases involving various mischances that may occur to passengers on aircraft, or boarding or disembarking from aircraft.  Instances of tripping or slipping, where no part of the aircraft malfunctions and no item of equipment is defective and causative in the incident, do not come within the convention.

13. Such are the facts in Chaudhari, where the injury was not something external to the claimant, she simply tripped over an inanimate object.

14. The unfortunate Mrs Parkinson in Parkinson[24] was climbing over some seats to move sideways in order to exit when she caught her foot on a semi‑circular piece of steel which she thought was a footrest, and fell and twisted her knee.  Her knee was injured.  Her claim was dismissed because moving sideways through centre seats was not an unusual or an unexpected event.  The queuing of people in the aisle was perfectly normal in disembarking from an aircraft.  Her incident did not satisfy the requirements for an accident under article 17.

    [24] Parkinson v Qantas Airways Ltd (Unreported and unpublished, NSWDC, 17 October 2002).

15. Similar was the situation for Mr Sethy, who was manoeuvring to his seat when he fell over a bag that had been left on the floor.  He fractured his finger when he grabbed an armrest to break his fall.  He did not satisfy the definition, because he had not alleged anything in the circumstances that would constitute a departure from normal boarding procedures: Sethy.[25]

    [25] Sethy v Malev Hungarian Airlines Inc (US District Court S.D.N.Y., No 98 Civ 8722 (AGS), 31 August 2000).

16. Mrs Sorial[26] did not recover against Virgin Blue Airlines when, whilst attempting to find her seat, she tripped over a metal rod which the sticking out at an angle from the back of one of the chairs and fell.  The cause was the failure of Mrs Sorial, in the confined area of the aircraft, to observe the strutting of the seats in front of her.  There was no suggestion of any failure in the structure of the aircraft.  Her claim was struck out because there was nothing unexpected or unusual in those events.  It was said it would be different if there had been some defect in the structure.  It was not accepted that the event was external to the passenger: the seat sat passively upon the aircraft floor, Mrs Sorial approached it, failed to observe it, and tripped.  It could not be said to be an external event.

    [26] Sorial v Virgin Blue Airlines Pty Ltd (Unreported and unpublished, NSWDC, 3 November 2008).

Conclusions

1. Mr Anderson was most unfortunate on 24 February 2016, when he went to descend the stairs from the F100 and snagged his boot.  He fell and he was injured.  There was nothing external to Mr Anderson which brought about the occurrence of his injury.  He was injured because he snagged his heel.  This was an event which was no doubt unexpected to him.  But in terms of the operation of the stairs pushed up to the aircraft, there was nothing unusual or unexpected about the situation.  The use of the stairs was entirely commonplace.  There was no suggestion of any malfunction or misplacement of the stairs.  It is to be distinguished from another unlucky traveller, Mr Patterson where steps unfolded from his aircraft but did not reach the ground, where Mr Patterson was to disembark.  A separate step was placed at the bottom to bridge the gap.  Upon stepping on that step, it rolled away from Mr Patterson causing him to fall and be injured.  His claim under article 17 succeeded.  In effect, that was an unusual situation and the step had malfunctioned, by rolling away.

2. On the authorities, both in Australia and those followed into by the High Court and the Court of Appeal in Queensland from the United States and England and Wales, I am bound to find that Mr Anderson's claim must fail.

3. Accordingly there will be judgment for the defendant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JM
Associate to Judge Braddock

12 DECEMBER 2019