AVIATION – where applicant was struck on the head by a suitcase on a flight from Dublin to Dubai – applicant sustained bodily injury within the meaning of Art 17(1) of the Montreal Convention given force of law by s 9B of the Civil Aviation (Carriers’ Liability) Act 1958 (Cth) – how serious was the injury and its sequelae – what damages are recoverable
HIGH COURT AND FEDERAL COURT – whether Pt 2 of the Civil Liability Act 2002 (NSW) (CLA) is picked up by ss 79 or 80 of the Judiciary Act 1903 (Cth) and applied to a claim arising from bodily injury under Art 17(1) of the Montreal Convention – whether there is a “gap” in Commonwealth Law – whether there is inconsistency between Pt 2 of the CLA and the Montreal Convention – whether the applicant’s claim is defeated by the threshold in s 16 of the CLA – whether Pt 2 of the CLA applies to no-fault liability such as liability under Art 17 of the Montreal Convention
DAMAGES – assessment of general damages for bodily injury in a claim under Art 17 of the Montreal Convention
Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999, 2242 UNTS 309 Arts 17, 21, 24, 25, 26, 28, 29
Convention for the Unification of Certain Rules for International Carriage by Air, done at Warsaw on 12 October 1929 Arts 17, 24
Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980 Arts 27, 31
[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
AGLC
Bradshaw v Emirates [2021] FCA 1407
Case
[2021] FCA 1407
Decision Date
CaseChat Overview and Summary
The applicant, Mr Bradshaw, brought an action against the airline, Emirates, seeking compensation for injuries he sustained when a suitcase fell from an overhead bin and struck him on the head during a flight from Dublin to Dubai. The case was heard in the Federal Court of Australia and involved complex legal issues concerning the application of Australian statutory law to a claim arising from a bodily injury under the Montreal Convention. The Montreal Convention is an international treaty that governs airline liability for injuries to passengers, and it was given force of law in Australia by the Civil Aviation (Carriers’ Liability) Act 1958 (Cth). The central legal issues were whether the provisions of the Civil Liability Act 2002 (NSW) applied to the applicant's claim, and if not, what damages were recoverable for the injuries sustained.
The court considered whether the Civil Liability Act 2002 (NSW) was applicable to a claim under the Montreal Convention, particularly in relation to the assessment of general damages for bodily injury. The court found that the Civil Liability Act 2002 (NSW) did not apply to the applicant's claim because it conflicted with the provisions of the Montreal Convention, which provide for a higher limit of liability for non-economic loss. The court also determined that the applicant's injuries were serious enough to be compensable under the Montreal Convention. The court awarded the applicant $5,000 for pain and suffering, finding this amount adequately compensated the applicant for the non-economic loss suffered. The court reserved the issue of interest and costs for further submissions from the parties.
The final orders of the court required the parties to agree on the orders within 7 days, with provisions for competing orders and submissions if agreement could not be reached. If an oral hearing was requested, the court would determine whether to proceed with one. The court also noted that the entry of orders would be governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. Within 7 days of the date of these orders, the parties bring in agreed orders consistent with the reasons for judgment published today, including on interest and costs.
2. If the parties are unable to agree any aspect of the orders:
(a) within 14 days of the date of these orders, the parties file and serve their respective competing orders with short submissions in support;
(b) within 7 days thereafter, the parties file and serve short submissions in reply to each other’s submissions in Order 2(a); and
(c) final orders will be determined on the papers unless either party requests an oral hearing and the Court so orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
On 15 July 2020, Mr Bradshaw was examined by Associate Professor Paul Spira, a consultant neurologist appointed on behalf of Emirates for the purpose of preparing a report for the proceeding.C. The evidence Mr Bradshaw’s lay evidence consists of one affidavit sworn by him on 27 April 2020 and his oral evidence at the hearing. He also relies on the medical report of Dr Endry-Walder, who also gave evidence at the hearing. Emirates’s evidence consists of three lay affidavits: Joseph Langan affirmed 3 August 2020, Hani Al Rachid sworn 12 August 2020 and Aleli Charissa Tagle sworn 12 August 2020, each of whom gave evidence at the hearing. Emirates also relies on medical reports by Associate Professor Spira dated 15 July 2020 and 19 November 2020. Professor Spira did not give oral evidence as he was not required for cross-examination. A small volume of documents was tendered. It is convenient to summarise the material evidence of each witness.C.1 Stephen Bradshaw Mr Bradshaw said that about 20 minutes before arrival into Dubai, the seatbelt sign was switched on as the plane had begun its descent. A passenger seated opposite him, across the aisle, rose from his seat and opened the overhead luggage bin directly above where he was seated. The passenger engaged in conversation with a cabin crew member, leaving the luggage bin open, when the aircraft banked and a suitcase “flew out of the overhead bin and struck me on the right side of my head causing me to sustain serious injuries.” Mr Bradshaw said that he was struck on his right temple by the suitcase when it fell which caused him to be “severely dazed”. He said that he slumped to his left, was stunned and saw black spots. He said that he held his head between his hands and immediately had a terrible headache. Mr Bradshaw could not recall being asked by Mr Langan, whose child’s suitcase it was, how he was, saying that Mr Langan apologised and a female cabin crew member asked him if he was okay. Mr Bradshaw said that the female cabin crew member gave him ice wrapped in tissue paper which he applied to his temple, but he denied being offered Panadol by the cabin crew. He did not recall a male cabin crew member asking him how he was feeling, whether he was dizzy or to grade his pain on a scale of 1 to 10. Mr Bradshaw said that after he disembarked from the aircraft in Dubai his headache became excruciating. He approached the Emirates helpdesk at Dubai airport where nurses were called for him. He said he was advised that there was not much that could be done for him apart from sending him to hospital, which he did not want to do as he would then miss his flight to Brisbane. He said that his headache was severe and requested the helpdesk that he be upgraded to business class which would enable him to lie down during the 14 hour flight to Brisbane. He was informed that that was not possible. He said in his affidavit that all he wanted at that stage was to get to Brisbane and receive medical treatment.
Decision
Reasons for decision
The above comments and reservations about the applicability of Pt 2 of the CLA to no-fault liability notwithstanding, I do not base my decision on it.G. Conclusion on damages As explained, because in my view the threshold for and limits on liability for damages for non-economic loss for personal injury set out in s 16 of the CLA are inconsistent with the scheme of liability for and limits on damages sustained in the case of bodily injury in the Montreal Convention, s 16 of the CLA cannot be picked up and applied by either ss 79 or 80 of the Judiciary Act. Emirates’s contention that Mr Bradshaw’s general damages are excluded by the fact that they do not meet the threshold in s 16 of the CLA must accordingly be rejected. The only forms of non-pecuniary damages suffered by Mr Bradshaw were pain and suffering and the loss of amenities of life in the limited way as I have explained at [93]-[106] above. In my assessment, an award of $5,000 will quite adequately and appropriately compensate him for that pain and suffering.H. Interest and costs I will hear the parties on interest and costs.