Cameron, L. v Qantas Airways Ltd

JUDGMENT No. ........ ... .

Sos . / ?L

....

))	No. G205 of 1993

)

BETWEEN: UONIE

Applicant

:	QANTAS AIRWAYS LIMITED
Respondent

!a€w!: BEAUMONT J

!xm: 28 NOVEMBER 1994

REASONS FOR JUDGMENT .1)

(FINDINGS OF MATERIAL PRIMARY FACTS WITH RESPECT

THE DEALINGS BETWEEN THE PARTIES)

JNTRODUCTION

In the amended statement of claim filed on 11 February 1994 in these group proceedings, the applicant alleges that the respondent engaged in unconscionable and/or misleading or deceptive conduct in contravention of the provisions of Part V of the Trade Practices Act 1974. Further, or in the alternative, it is alleged that each of the group members suffered loss or damage occasioned by negligence and/or breach of duty on the part of the respondent. It is claimed, inter alia, that the respondent engaged in the following specific conduct, which is said to be common to all group members:

(l)	That the respondent knew or ought reasonably to have

known that the smoking of cigarettes and other tobacco products on board Qantas aircraft was a

health hazard in that smoke circulating in the air in Qantas aircraft could cause or be a contributing factor in causing certain detrimental physical

effects (para. 4) .

(2) That the respondent knew or ought reasonably to have known that allocation of seating designated smoking or non-smoking was not effective to prevent cigarette smoke generated from persons smoking in a designated smoking zone also being dispersed into the air circulating in the area of seats designated non-smoking, and that group members, wherever seated, were exposed to such smoke (paras. 5, 12).

(3) That the respondent has implemented a policy in the allocation of seating in Qantas aircraft such that ticket holders or prospective passengers can request to be seated in a designated non-smoking zone either upon or prior to presenting at the airport for seat allocation and/or a boarding pass; that upon making such a request group members were informed that they have been or will be allocated a seat designated non-smoking. In the alternative, that group members were informed that they could not be allocated a designated non-smoking seat and only could be allocated a seat in a designated smoking zone; further, certain passengers receiving a boarding pass at a later time may be allocated a seat in a non-smoking zone, even though they did not previously request such a seat (paras. 6, 10, 11).

(4) That the respondent made representations with respect to the facts that (a) the passenger will be seated in a seat designated non-smoking; (b) the seat will be in a designated non-smoking zone; (c) by occupying the seat the passenger will not be exposed to cigarette smoke during the flight (para.

7 )

(5) That the group members were misled by these representations, in that they (a) were not allocated a seat designated non-smoking for all or part of the flight; (b) were allocated a seat which, whilst designated non-smoking, was not in a designated non- smoking zone, but was in a smoking zone or in a I8buffer zonen1 immediately in front of, behind or beside a seat in a zone designated for smoking; and (c) were exposed to cigarette smoke during flight while occupying the allocated seat (paras. 8, 9).

Because this is complex litigation, in which expert evidence may be called to deal with a number of technical issues, the parties agreed that it was desirable that the trial proceed in stages, and these reasons address the first stage. At this stage, evidence has been called by the applicant and other group members as to their dealings with the respondent in terms of the material primary facts evidencing those dealings. It is contemplated that so far as any matters of contention arise as to those facts, findings will now be made in these respects and that this will expedite

the future conduct of the trial; for instance, it is expected that such findings should assist in the presentation of expert evidence, in that an expert opinion could be expressed by reference to that material, as so found, rather than by reference to hypothetical assumptions which may differ from the facts as now found.

RIAL PRIMARY FACTS WITH RESPECT TO TILE

NGS BETWEEN THE PARTIES

As has been noted, and as indicated at a directions hearing on 16 September 1994, I will now make findings only as to the material primary facts. All other matters, including the secondary facts, the resulting inferences to be drawn, and the expert evidence itself, are reserved for the further hearing of the proceedings.

Nine witnesses, all passengers, gave oral evidence in the applicant's case; each was cross-examined. No witness was called on behalf of the respondent. Both parties tendered documents. At the close of the evidence, it became apparent that there was substantial common ground between the parties, so that only limited areas of contention remained so far as concerned material primary facts. It follows, that except where otherwise indicated below, I have been able to proceed on the footing that the evidence-in-chief of each witness should be accepted. However, as noted at the hearing, the acceptance of this evidence is subject to any valid objections as to its admissibility, for instance, because the material is inadmissible hearsay about a matter which is seriously in

dispute.

I will deal with each witness in turn, setting out the relevant events in chronological order. The reasons for the findings as to the contentious issues, together with other necessary comments by way of explication, will be set out in brackets.

(a)	Leonie Paula Cameron

Mrs Cameron was called, as was another passenger, Diane Erickson. In the case of Mrs Cameron, I make the following findings:

In 1992, Mrs Cameron and two of her friends, Mrs Erickson and Mrs OfDonohue, planned a holiday in Bangkok. Mrs Erickson made all the travel arrangements for them for a one week package holiday, departing 3 July 1992. The package was arranged through Jetabout Travel, North Sydney, which, it is claimed, was associated with the respondent. She booked economy airline tickets with the respondent for both Mrs Cameron and Mrs OIDonohue. As Mrs Erickson's husband was an employee of the respondent, she separately booked her economy ticket in order to receive a concessional fare.

On 3 July 1992, two hours prior to departure, Mrs Cameron checked-in at Sydney airport for her flight to Bangkok. At that time, she requested a non-smoking seat; neither she nor Mrs Erickson had made any previous requests as

to seating preference. The respondent's check-in staff informed Mrs Cameron that there were no available non-smoking seats; she was allocated an economy seat (seat 75A) in a designated smoking area.

At check-in, the respondent's staff apparently made

what has been described by Mr Hely Q.C. as an ltinconclusive

and insubstantialt1 statement (see below) to Mrs Cameron, on

the question whether, once on board the aircraft, Mrs Cameron

might request that a flight attendant move her to a non-

smoking seat. [As no witnesses were called by the respondent

to dispute this evidence, I would find, if necessary, that the

respondent's check-in staff made a statement, albeit an

8tinconclusive and insubstantialIt statement, to Mrs Cameron

concerning possible arrangements as to change of seating once

she was on board the aircraft. It should be noted that it

appears to be unnecessary to pursue the point, since the

parties are agreed that such a statement, even if made, did

not rise to the level of a representation, or a promise, or an

assurance.]

Because of the nature of her concessional ticket, Mrs Erickson checked-in at a different location, the respondent's staff travel check-in, and was allocated a seat about a quarter of an hour before the flight. Mrs Erickson was given a non-smoking seat in the economy class section of the aircraft.

After she boarded the aircraft, Mrs Cameron requested to be moved to a non-smoking seat. After "hav[ing] a look" around the cabin, the flight attendant told Mrs Cameron Vhat there were no seats available." Mrs Cameron remained seated in her allocated smoking seat for the remainder of the flight. At least one person across the aisle and one person behind Mrs Cameron were smoking. She described the air as glsmelly". She stated that she felt nauseous, her eyes dried up, her throat got raspy, and she did not feel like eating. [As indicated during the hearing, these last statements have been received as evidence of the symptoms Mrs Cameron experienced and not as medical diagnosis or causation in any technical sense.]

Two days after arriving in Bangkok, Mrs Cameron Inwent to bed" in her hotel, due to problems with her eyes and throat, and did not attend any further tours with Mrs Erickson and Mrs O'Donohue. On 8 July, Mrs Erickson telephoned Qantas in Bangkok and requested non-smoking seats for herself, Mrs Cameron, and Mrs O'Donohue for their return flight to Sydney. Mrs Erickson testified that a female Qantas staff said:

"You can rest assured, and tell your friend [Mrs Cameron] to go back to bed and rest, it '11 be okay,

she won't

have a smoking seat going home."

On 10 July, Mrs Cameron checked-in at Bangkok airport, and was allocated a smoking seat. She protested, and an hour later was re-allocated seat 43J in a non-smoking, economy section of the aircraft.

On the Monday following her return to Sydney, Mrs

Cameron said she saw a doctor and was prescribed antibiotics

for her condition. She subsequently wrote a letter of

complaint to Qantas dated 18 July 1992, and received a reply dated 8 September 1992. She wrote a further letter dated 22 September 1992, and received a reply from the respondent dated

24 November 1992. For present purposes, in the case of Mrs

Cameron (and the other group members) it is not necessary to refer to their terms. No doubt they will be relevant at the next stage of the proceedings.

(b) v a n

HOODer

Mr Hooper was called. In his case, I make the

following findings:

In 1992, Mr Hooper telephoned a travel agent (Gary Fox of Travel Scene), and booked a flight to Hawaii for a holiday. At that time, he asked the travel agent if he could have a non-smoking, economy class seat on the flight. The travel agent stated that "that should be fine". Mr Hooper subsequently went to the travel agent to pay for his ticket. At that time, the following conversation took place:

"To the best of my recollection, I asked [the travel

agent] if the ticket was okay? He said, 'Yes, it's

fine. B He said, 'I've booked you on this flight on

the loth, to return on the 19th December' and he

said 'I've got you a non-smoking seat.'"

[The respondent did not cross examine Mr Hooper on this conversation with the travel agent, but, as has been noted, maintained an objection to the evidence on the ground that it

was an inadmissible hearsay statement made by a person without authority to make admissions on the part of the respondent. However, a statement in a letter in evidence (Ex. A), from the respondent's Customer Relations department to Mr Hooper dated 5 February 1993, appears to corroborate Mr Hooper's testimony:

"Examination of your Reservations Record shows that a 'generic' seating request was notated on your booking for the return sector, which indicated that your preference was for a window seat in the non- smoking zone."]

I find that Mr Hooper made a request for a non-smoking seat.

On 10 December 1992, Mr Hooper flew from Sydney to Hawaii. On 19 December, he attended to check-in at Honolulu airport approximately one hour before his return flight to Sydney. Mr Hooper testified that at that time the respondent's check-in staff stated:

"I'm sorry, we cannot give you the non-smoking seat that you requested. It is fully booked in that area [economy class] and we will have to give you a

smoking

seat. "

[Although Mr Hooper stated in cross-examination that he was not sure whether economy class was mentioned, the context of the conversation would suggest that it probably was mentioned.]

Mr Hooper then told the staff that he could not fly in the smoking section because Itit makes [him suffer from] nauseatt. She stated that Mr Hooper should raise the matter with the flight attendants on board the aircraft to see whether something could be done for him in relation to his

seating.

Mr Hooper boarded the flight and took his allocated

economy class seat in the smoking section. He testified that:

NFrom the time the plane took off everyone was lighting up cigarettes, it was pretty well, the cabin was full of smoke.

Prior to take-off, and several times after take-off, he requested to be moved to a non-smoking seat. He was told by the flight attendant "that the plane [was] totally booked out

[in economy class].

Over the next four to five hours he got up and walked around the aircraft; he said he also went to the toilet several times, in order to vomit. [Again, as noted, these last statements are received as evidence of the symptoms Mr Hooper experienced and not as medical diagnosis or causation in any technical sense.] Approximately an hour and a half outside Sydney, Mr Hooper was moved to a flight attendant's fold-down seat. About 20-30 minutes later, he was moved to a

non-smoking seat in the forward business class section of the aircraft. [Mr Hooper1s evidence is not clear on whether this actually was the business class section of the aircraft; however, the parties now appear to be in agreement that, based on his testimony, he was moved to the business class section. The parties also appear to agree that Mr Hooper1s testimony suggests that there were approximately ten empty seats in the business class section of the aircraft.]

In the business class section of the aircraft, Mr Hooper said that he observed two passengers, whom he recognised from the check-in area at the Honolulu airport. At the time of check-in, he overheard a conversation between those passengers and the respondent's check-in staff, who told them, "I'm sorry we are fully booked, there are no seats available at this stage." The two passengers were seated in the business class section for the entire trip from Honolulu to Sydney.

[However, the evidence at this stage does not

indicate whether these passengers paid an economy fare and

were upgraded to business class by the respondent's check-in staff, or whether they paid for a business class fare. I make no findings in that regard at this stage.]

On 18 January 1993, Mr Hooper wrote a letter of complaint to the respondent. He then received the letter dated 5 February 1993 from the respondent.

(c) -

Lewis

Mr Lewis was called. In his case, I make the

following findings:

In September 1992, Mr Lewis made arrangements with a travel agent (Warren Flower of National Mutual Travel) to travel to Bali on holiday with his wife and two children, booking economy class tickets with the respondent. At that

time, he requested non-smoking seats; the travel agent said "that should be okay.I9 Mr Lewis testified to the following events one week before the flight:

"I made a phone call to Qantas, it was just the

general number in the phone book, I think it's just their general customer inquiry line in relation to flights departing Sydney. I asked 'Was my flight details as I read them out to them?' and they said 'Yes they were' and I also at that time requested non-smoking and they said 'Yes it's been requested.

[In any event, a letter from the respondent dated 17 February

1993 (Ex. C) stated:

Myour reservations record shows that Non-Smoking

seats were, indeed, requested.

" 1

On 19 January 1993, Mr Lewis and his family checked- in at Sydney airport for their flight to Bali. Mr Lewis was allocated seats in the smoking section of the aircraft. He gave this evidence:

"I then asked her [the respondent's check-in staff]

what could be done about it and she said to me that most of the plane had been pre-booked and once on board the plane see what you can sort out and basically [she] left it go at that because [she said] there is nothing more that she could do."

Once on board the aircraft, Mr Lewis requested that

he and his family be moved to non-smoking seats. The flight

attendant stated that nothing could be done about the

situation. Once airborne, he said approximately H25 to 30

peoplew began smoking. Mr Lewis testified that he experienced sinus problems, felt ill, and had irritation of the eyes. [Again, as noted above, these last statements are received as

evidence of the symptoms Mr Lewis experienced and not as

medical diagnosis or causation in any technical sense.] He moved his wife and two children to the galley of the aircraft, putting them on blankets and pillows.

In order to smoke, several passengers from the non- smoking section of the aircraft left their seats and sat in the seats which Mr Lewis and his family had vacated. He asked these passengers if they would switch seats, but they refused. Mr Lewis and his family returned to their allocated seats for landing.

During the flight, Mr Lewis wrote a letter of complaint to the respondent dated 19 January 1993. He gave the letter to the Flight Services Director on board the aircraft, who agreed to pass the letter through to the appropriate department. He received a reply dated 17 February 1993. He wrote a further letter dated 16 April 1993 and received a reply from the respondent dated 22 April 1993.

(d)	Eric Donald Glass

Commander Glass was called. In his case, I make the

following findings:

In 1993, Commander Glass, who is employed by the Royal Australian Navy, phoned the respondent to book a return flight from Melbourne to Frankfurt, via Bangkok, for a business trip. At that time he requested a non-smoking seat in the business class section of the aircraft.

On the Frankfurt-Bangkok leg of his return trip to Sydney, Commander Glass was seated in seat 24A, a non-smoking seat in the business class section of the aircraft. During that flight, he was aware that someone was smoking in the business class section. [These events are now common ground between the parties.]

On the subsequent Bangkok-Melbourne leg of the return trip, the aircraft made a stop-over in Bali. [There was no evidence that Commander Glass flew on the same type of aircraft on both the Frankfurt-Bangkok and the Bangkok- Melbourne legs of the journey, and no finding is made at this stage on that aspect.] From Bali to Melbourne, Commander Glass said that he was seated in a non-smoking seat (seat 27A) in the business class section of the aircraft, and that his boarding pass so indicated. He further stated that the seat directly adjacent to his seat (seat 27B) appeared to be a non- smoking seat. [It should be noted that Ex. G, a Qantas aircraft configuration diagram for a B767-338 aircraft, indicates that seats 27A and 27B are in a "no preference buffer zone8O rather than a "non-smokingIf zone. ] However, the two seats in row 27 located directly across the aisle, in the centre of the aircraft, were designated smoking seats. [This is now common ground between the parties and is corroborated

by Ex. G.] Commander Glass stated that the passengers in

those two seats B1commenced to chain smoke immediately [after] the 'no smoking1 sign was switched off after take off from Bali." As a result, he was unable to sleep for the whole of

the trip to Sydney. [Again, as noted above, these statements are received as evidence of the symptoms Commander Glass experienced and not as medical diagnosis or causation in any technical sense.]

Commander Glass raised the matter with a flight attendant, who produced a diagram indicating that he was seated in a smoking seat. [The parties are now agreed that the attendant showed him an incorrect diagram.) After "[his] complaint persisted", the flight attendant offered to move him to another seat. He stated that he declined the offer because, as he put it:

"the flight attendant agreed that there was smoke throughout the cabin and that was the only option I was given. It was also my impression that the cabin was full and I was unable to see how that move could be done without causing disturbance to other people which I felt was unnecessary as this was 2 or 3 o'clock in the morning.

Commander Glass subsequently wrote a letter of complaint to the respondent dated 5 June 1993, and received a reply dated 16 June 1993. He wrote a follow-up letter dated

27 June 1993, and the respondent replied in a letter dated 6

August 1993.

(e)	Byssell Jean Aroney.

MS Aroney was called. In her case, I make the

following findings:

In September 1993, MS Aroney made arrangements

through a travel agent, Mr Walker of Walkers Travel Centre, for a round-the-world business class airline ticket. The flights which were with the respondent were from Sydney to Harare and from Los Angeles to Sydney. She said that she told the travel agent "that [she] had to have a non-smoking seat", due to the fact that she has asthma. With respect to the sectors of her journey with the respondent, she requested a particular seat, 18A (as she had been told by a friend that it had extra leg room.) She said that:

#in that conversation [with the travel agent] I was told that I could not have the requested seat number from Sydney to Harare because it was too soon a time, but I could have the seat from Los Angeles to Sydney because it was subsequently further on.*

On the trip from Sydney to Harare, MS Aroney sat in a non-smoking seat in business class. She stated that she observed at least one person smoking Itin the same compartment that [she] was in but they were no where near [her]."

On 20 November 1993, MS Aroney checked-in with the respondent at Los Angeles airport for her return flight to Sydney. The respondent's staff told her that he had "no knowledge of [her] booked seat.## He stated that he would give her a different non-smoking seat, 25A, in business class, and her boarding pass so indicated.

Once on board the aircraft and after dinner had been served, MS Aroney said that she:

"was awakened with this sense of a lot of smoke around me and ... I turned around to see a lady with

her light on, smoking, directly behind me and I couldn't understand this so I called the flight attendant and said,'Therets a lady smoking behind me, how can this be?' and he said, 'Yes. ' I said, 'But I'm in a non-smoking seat, what's the situation?' So he asked me to show him my boarding pass which I did and he said, 'You're not in a non- smoking seat, you're in a smoking seat."'

[It is now common ground between the parties that the woman

seated behind MS Aroney was the only person she saw smoking.]

The male flight attendant showed MS Aroney a plan of the aircraft which indicated that seat 25A was a smoking seat. [Ex. J, a Qantas aircraft configuration diagram for a B747-438 aircraft, tends to corroborate this evidence, but I make no finding as to the objective position at this stage.]

He then told her that:

*[the woman smoking behind her] was in a smoking seat and she could not be asked not to smoke, that [MS Aroney] couldn't have another seat because there wasn't one empty on the aircraft, even in first class, and that there was nothing he could do."

MS Aroney stated that she then moved to the flight attendant's jump seat Hbecause the smoke was affecting [her] physicallymm in that her mllip was swollen and trembling, [her] eyes were watering and [she] had a wheeze." She also stated that the

*wheeze was characteristic of her asthma in that mm[she]*	*wasn't*
*able to take in enough oxygen."*

[Again, as noted above, these last statements have been received as evidence of the symptoms MS Aroney experienced and not as medical diagnosis or causation in any

technical sense.]

She remained either in the jump seat or on the floor of the aircraft for eight to ten hours of the flight. She returned to her seat only to eat breakfast and for landing in Sydney.

A few days after she returned to Sydney, she said

she "developed an earachew; she sought medical attention. On

5 December, MS Aroney wrote a letter of complaint to the

respondent. On 13 January 1994 she wrote a follow-up letter,

and received a response dated 3 February 1994.

(f)	Bnita Louise Jacobv

MS Jacoby was called. In her case, I make the

following findings:

In 1993, MS Jacoby, a television producer for the program 60 Minutes produced by 9 Network Australia Ltd, booked a business trip through Show Travel, which books all the travel for Channel 9 employees. Her itinerary was Sydney-Los Angeles-London-Morocco-London-Sydney. MS Jacoby arranged pre- allocated, non-smoking, business class seats in the bulk head of the aircraft from Sydney to Los Angeles (seat 16B) and from London to Sydney (seat 18J). She testified that she prefers a seat with extra leg room, such as the bulk head seat, because she lost part of her right leg in a motor bike accident and I8need[s] to stretch [her] leg out.8'

On 26 May 1993, MS Jacoby flew with the respondent from Sydney to Los Angeles in her pre-allocated seat, 16B. On 11 June 1993, she and three crew members with whom she was travelling decided to return to Sydney a day early. She said that she telephoned a member of the respondent's London office staff and said:

Y I I wish to change the four seats that were booked

on the 13th of June returning London Sydney to the 12th of June.' She [the staff member] said: 'What class?' I said: 'Business class. ' I indicated that we had those four seats booked on the 13th. She said we could have four seats in business class coming back on the 12th. I requested four seats that were in the bulk head and that were non smoking. She said that we should - that we'd get non smoking seats and that she would endeavour to get us seats in the bulk head."

[It appears to be common ground that at this stage MS Jacoby was not assured that she would be allocated a seat in the bulk head. ]

On 12 June, approximately one hour before departure, MS Jacoby and the three crew members attended Qantas check-in at London-Heathrow airport for their return trip to Sydney, via Bangkok. At that time, the respondent's staff said to

her :

"'that [MS Jacoby and the three crew members] would be given four non smoking seats [in business class]

The tickets and the boarding passes were issued at that stage. As not all of the camera equipment was loaded on board the aircraft before departure, one of the crew members stayed behind in London to ensure that it was loaded on a later flight. MS Jacoby boarded the flight and took seat 23G,

a non-smoking seat, as indicated on her boarding pass, in the

lower deck business class section of the aircraft.

[It should be noted that Ex. T, a Qantas aircraft configuration diagram for a B747-438 aircraft, indicates that seat 23G is in a Itno preference buffer zone" rather than a 81non-smokingm1 zone. MS Jacoby testified that when she changed her return flight date, she was not informed that her seat was in a "no preference buffer zone". She said that if she had been so informed, 81[she] would have gone the following day [in her pre-allocated seat]". As indicated, I make no findings on these secondary facts at this stage.] The two crew members travelling with her were seated in the upper deck business class section of the aircraft. She said that:

"after take off or as soon as possible there were chain smokers about two seats in the aisle away from me so the smoke became unbearable."

She further said:

"I just started sneezing; my eyes were running; I

had inflammation; I was just coughing; it was really

unpleasant .

[Again, as noted above, these last statements are received as evidence of the symptoms MS Jacoby experienced and not as medical diagnosis or causation in any technical sense.]

At that time, she spoke with the Flight Services Director, Geoff Hudson. She said that:

"[Mr Hudson] was going to endeavour to find me another seat somewhere else. He - because the plane was full basically in first class and in business class he was unable to find another seat in either of those sections, so he proceeded to have a look in economy for a seat for me and he found one and I

subsequently moved to the back of the plane [in

economy class]

She remained in a non-smoking economy class seat for glalmost the entire trip" from London to Bangkok.

Upon arriving in Bangkok, MS Jacoby was re-allocated seat 12J in the upper deck, non-smoking business class section of the aircraft, and she remained in that seat for the trip from Bangkok to Sydney.

She said that after she returned to Sydney:

*I was really congested. Those symptoms remained

with me for, you know, quite a period; it was almost up to a month that I felt all blocked up. I actually went and saw my local doctor to try and get something to deal with it .

She wrote a letter of complaint to the respondent's Managing Director dated 16 June 1993, and received a reply dated 24 June 1993.

(g)	paula Irene Underwood

MS Underwood was called. In her case, I make the

following findings:

In June 1992, MS Underwood telephoned a travel agent (Geoff Smith of Kelly Travelling, Coffs Harbour) to book a return economy class ticket with the respondent from Brisbane to Bali. At that time she requested a non-smoking seat, and the travel agent said "'1 will make a note of that.l1#

[MS Underwood subsequently telephoned the travel

agent to confirm her flight arrangements and to ensure that her request for a non-smoking seat had been noted. The parties appear to be agreed that she merely confirmed at this stage that her request had been received by the travel agent.]

On 19 August 1992, MS Underwood and her two

travelling companions attended check-in at Denpasar airport in

Bali for their return flight to Brisbane.

She said:

"1 went to the check-in counter to confirm the

seating arrangements and there was a male attendant there and I just confirmed that my seat was a non- smoking. I said, 'Is that a non-smoking seat?' and he said, 'Yes, it is.

MS Underwood and her two companions boarded the

flight and took their seats in the rear section of the

aircraft (seats 59A, 59B, and 59C).

[It should be noted that Ex. P, a Qantas aircraft configuration diagram for a B747SP-38 aircraft, indicates that seats 59A, 59B, and 59C are in a designated non-smoking zone in economy class, approximately three rows behind a designated smoking zone in economy class.]

MS Underwood said that the smoke:

"was coming towards the back on the plane where my seat was and there was no barrier between the two sections [smoking and non-smoking]. So, there was nothing to stop it from coming back into the non- smoking area.

She said that as a result of the smoke drifting into the section where she was sitting:

"My

e y e s

were

wa te r ing

c o n t i n u a l l y .

n o s e

became

b locked and I

found

it q u i t e hard t o b r e a t h .

A t one

s t a g e I

g o t

u p and

went

t o the

to i l e t t o t r y and

g e t

some

smoke

free a i r . "

[Aga in , a s no ted

above ,

these

l a s t s t a t e m e n t s

a r e

received

a s

e v i d e n c e o f the symptoms

M S

Underwood

exper ienced

and

n o t a s

medica l

d i a g n o s i s

o r

c a u s a t i o n

i n

any

t e c h n i c a l

s e n s e . ]

A t

th is

s t a g e ,

M S

Underwood

spoke

t o a

female

f l i g h t

a t t e n d a n t

and

s a i d :

*'I

was

e x p e r i e n c i n g

d i s c o m f o r t

because

o f

the

smoking

the

s i t u a t i o n o f

the

smoking

s e c t i o n

i n

front

o f

the non-smoking

s e c t i o n and

the

smoke

coming through'

and she s a i d ,

' Y e s I know, we have

t a l k e d about it t o them t i m e and

time again. '"

During

the f l i g h t , M S

Underwood

s a i d t h a t the f l i g h t

a t t e n d a n t s :

*handed o u t a market r e s e a r c h s t u d y , a genera l s t u d y

p lace f o r comments, f u r t h e r comments i n which I

on the service o f Qantas and the f l i g h t and it had a

r e p o r t e d

the

d i s s a t i s f a c t i o n I

f e l t

w i t h

the

f l i g h t ,

the

s e a t i n g

arrangements,

the

d i s c o m f o r t

had

through the even ing ,

through the whole f l i g h t and I

asked f o r a r e p l y t o be

sent

t o me."

S h e s a i d t h a t she

d i d n o t receive

r e p l y from the re sponden t .

Upon

a r r i v i n g

i n Br i sbane ,

M S

Underwood

s t a t e d

t h a t

she :

" f e l t too

ill

[ t o t r a v e l

home

b y

b u s

t o Lennox

Head].

A f r i e n d o f [hers] picked

[her] u p and

[she]

s t a y e d

a t her p lace

f o r

the evening."

S h e s a i d

t h a t her

f r i e n d drove her

home

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(h)	Paul LesLie McMah~n

Mr McMahon was called. In his case, I make the

following findings:

In early 1993, Mr McMahon telephoned a travel agent (Westpac Travel) to make flight arrangements for a business trip from Sydney to the United States and Europe. He booked a business class seat with the respondent through the travel agent who asked, "\Do you want non-smoking or smoking?11' and he said H\Non-smoking.llf

[It should be noted that Mr McMahonls itinerary from Westpac Travel, Ex. Q, received, as noted, subject to objection, indicates that his request for a non-smoking seat, in regard to the Sydney-Los Angeles sector of the trip with the respondent, was received. Ex. Q does not refer to his return flight with the respondent from London to Sydney. ] He purchased a ticket where the return flight to Sydney "was an open ended date, an approximate open ended date with the

option to change if [he] didn't

fly that date."

Approximately one week prior to his proposed departure date of 20 February 1993, Mr McMahon telephoned the respondent's London reservations office to schedule his return flight from London to Sydney. At that time, he told the respondent's reservations staff that he llrequire[d] a return trip to Australia [on 20 February], business class, non-

smoking." At that stage, he said, the respondent's staff I1conf irmed availability. Approximately three to four days prior to 19 February 1993, Mr McMahon again telephoned the respondent's reservations staff in London and asked whether his departure date could be changed from 20 February to 19 February; he said that the respondent's reservations staff replied, 81Yesw.

On 19 February, Mr McMahon attended the respondent's

check-in at London-Heathrow airport for his return flight to booked on 20 February," but that "[they] could get [him] on a later flight [that day] via Singapore." Mr McMahon said:

"Again I asked whether it would be business class

and would it be non-smoking? and they said 'Yes.'"

The check-in staff gave Mr McMahon three boarding passes for his flight to Sydney, via Singapore and Brisbane.

[It should be noted that his boarding passes, Ex. Q, indicate that he was allocated non-smoking seats for all three legs of the trip to Sydney.]

Mr McMahon boarded the aircraft and travelled from London to Singapore without incident. After approximately a two hour transit stop, he boarded the aircraft in Singapore and sat in his allocated seat, 27A, in the lower deck of the business class section of the aircraft.

[There is no evidence as to whether this was, in

fact, the same aircraft as from London to Singapore, and therefore I make no finding as to this matter at this stage.

But, according to his boarding passes (Ex. Q), he was seated

in different seats on all three legs of the flight from London

to Sydney.]

Mr McMahon said:

YAfter the flight commenced I noticed people lighting cigarettes near me and I immediately conferred with the person sitting next to me who was equally surprised."

He then had a conversation with a flight attendant and asked:

W'Is this smoking or non-smoking?' and he said HSmoking.'... I showed him my boarding pass and said, 'It indicates that it is non-smoking.' ... He said 'I'm sorry,' he said and I said, 'How could this happen?' and he said, 'It's possibly due to the change in configuration of the plane, it is not compatible with this boarding pass.' Then he [the flight attendant] said, 'I've never seen this sort of thing happen before.'"

[It should be noted that Ex. R, a Qantas aircraft configuration diagram for a B767-338 aircraft, indicates that seat 27A is in a "no preference buffer zone1# rather than a

lfnon-smokingw

zone.]

Mr McMahon said that the smoke was coming from the

passengers sitting in row 27 across the aisle from him, in the

centre seats.

[It should be noted that Ex. R indicates that the centre seats in row 27 are in a smoking zone.]

He said that he was aware of the cigarette smoke in the air, and he that felt Ifimmediate distress and discomfort and unhappines~,~~ but that he did not experience any physical effects on his body at that time.

[Again, as noted above, these last statements are received as evidence of the symptoms Mr McMahon experienced and not as medical diagnosis or causation in any technical sense. ]

Mr McMahon remained in his seat for the duration of

the flight to Brisbane.

[During cross-examination, Mr McMahon agreed that if he had been seriously inconvenienced by the smoking, it wwould've been natural for [him] to ask [the flight attendant to move him to another seat.]" He also said that he did not make such a request.]

On the leg from Brisbane to Sydney, Mr McMahon sat

in his allocated seat, 25B, and said that the trip was without

incident.

Upon arriving at Sydney, Mr McMahon said-

"Within, to the best of my recollection, 24 to 48 hours I had a runny nose, coughing, sore throat, deteriorated day by day to the point of bronchitis, couldn't speak or found difficulty speaking, went to the doctor on at least five occasions and eventually

I started experiencing severe pains in my ribs as if I had a knife in them and I was diagnosed as having

pleurisy.

[Again, as noted above, these last statements are

received as evidence of the symptoms Mr McMahon experienced

and not as medical diagnosis or causation in any technical

sense.]

He said that he was sick "over a three week period."

As indicated, a further directions hearing will be held in December with a view to fixing a date in April 1995 for the final hearing of the remaining issues.

I certify that this and the preceding twenty-seven (27) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont .

Associate: Q&

Q&,&:

28 November 1994

Counsel and Solicitors	Mr. N. Francey instructed by
for Applicant:	Cashman & Partners
Counsel and Solicitors	Mr. P. Hely Q.C. and Mr. A.
Respondent:	Robertson instructed b Y Dunhill Madden Butler
Dates of hearing:	21-23 November 1994
Date judgment delivered:	28 November 1994

[1994] FCA 905

28 Nov 1994