Bassos v Etihad Airways

DISTRICT COURT OF QUEENSLAND

CITATION:

Bassos v Etihad Airways [2015] QDC 185

PARTIES:

James Andrew BASSOS
(plaintiff respondent)
V
ETIHAD AIRWAYS PJSC (ACN 123 078 688)
(defendant applicant)

FILE NO:

BD3944/2015

DIVISION:

Applications

PROCEEDING:

Applications to strike out Statement of Claim and for Summary Judgment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2015

JUDGE:

Kingham DCJ

ORDERS:

The applications to strike out the statement of claim and for judgment for the defendant are refused.1.     

The plaintiff must submit to medical examination by Dr Paul Licina on 17 December 2015 on the following terms that:2.     

The defendant reimburse the plaintiff for the reasonable travelling costs incurred in Brisbane (e.g. taxi or parking expenses);(a)        

A copy of the instructions to or request to the specialist to examine the plaintiff with any accompanying comments and attachments be provided to the plaintiff’s solicitors;(b)        

In the event that the plaintiff fails to attend the examination by Dr Licina, either party is at liberty to apply to the court on giving not less than 7 days prior written notice to the other party.3.          

Costs of the application are costs in the cause.4.          

CATCHWORDS:

PROCEDURE – STRIKE OUT STATEMENT OF CLAIM – SUMMARY JUDGMENT FOR DEFENDANT – CARRIER’S LIABILITY – where plaintiff claimed injury arose because he was required to occupy a seat encroached upon by another passenger, requiring him to contort and twist his body to avoid contact with the other passenger – where repeated requests to be re-seated were only partly satisfied - whether facts alleged give rise to a cause of action – whether any real prospects of establishing an accident as that term is interpreted in relation to carrier’s liability – whether there is any need for a trial of the claim – where found that the pleading should not be struck out and judgment should not be entered.

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s9B (Montreal Convention No. 4 Article 17).

Uniform Civil Procedure Rules 1999 r293

Air France v Saks 470 US 392 cited

Brannock v Jetstar Airways P/L [2010] QCA 218 cited

Olympic Airways v Hussain (2004) 540 US 644 considered
Povey v Qantas Airways Ltd (2005) 216 ALR 427 applied

COUNSEL:

R Morton for the Applicant/Defendant
T Lambert for the Respondent/Plaintiff

SOLICITORS:

CBP Pty Ltd as town agent for Norton White for the Applicant/Defendant
Carter Capner, Law  for the Respondent/Plaintiff

1. James Bassos travelled economy class on an Etihad Airways flight from Abu Dhabi to Sydney in October 2011.  He claims he was forced to twist and contort his body to avoid contact with his neighbouring passenger, a very large man whose body encroached into his seat. After repeated requests of cabin crew, Mr Bassos was given limited access to a crew seat, but was still required to spend long stretches of time in a position which he claims caused a back injury and aggravation of an existing back condition.

1. His claim is…