Garnett v Qantas Airways Ltd
[2019] WADC 89 (S)
•4 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GARNETT -v- QANTAS AIRWAYS LTD [2019] WADC 89
CORAM: BURROWS DCJ
HEARD: 14 MAY 2018
DELIVERED : 4 JULY 2019
FILE NO/S: CIV 2359 of 2014
BETWEEN: RODNEY JOHN GARNETT
Plaintiff
AND
QANTAS AIRWAYS LTD
First Defendant
CITY OF KARRATHA
Second Defendant and First Third Party
SKYSTAR AIRPORT SERVICES PTY LTD
Third Defendant and Second Third Party
Catchwords:
Personal injury - Negligence - Duty of care - Duty to warn - Obvious risk - Reasonable precautions - Contributory negligence - Plaintiff tripped on plinth when disembarking plane at Karratha
Aviation carriage of passengers by air - Accident - Carriers liability - Agency - Scope of authority - Acting in furtherance of contract of carriage
Breach of contract - Construction of lease - Contribution claim - Public liability insurance - Scope of indemnity clause
Implied terms - Airport agreement - Safe access for passengers disembarking aircraft to terminal
Legislation:
Civil Aviation (Carriers' Liability) Act 1959 (Cth)
Civil Aviation (Carriers' Liability) Act 1961 (WA)
Civil Liability Act 2002 (WA)
Occupiers' Liability Act 1985 (WA)
Result:
The plaintiff's claim against second defendant be allowed with damages to be assessed
The plaintiff's claim against the third defendant is extinguished
The first defendant's claim as against the first third party is allowed with damages to be assessed
The second defendant's claim as against the second third party is dismissed
Representation:
Counsel:
| Plaintiff | : | Mr T Lampropoulos SC & Mr B Bradley |
| First Defendant | : | Mr A Casselden SC & Ms C V Wren |
| Second Defendant and First Third Party | : | Mr D R Clyne |
| Third Defendant and Second Third Party | : | Mr D Lloyd |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal |
| First Defendant | : | HWL Ebsworth Lawyers |
| Second Defendant and First Third Party | : | SRB Legal |
| Third Defendant and Second Third Party | : | GSG Legal |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Air Link Pty Ltd v Paterson [2009] NSWCA 251
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chutter v KLM Royal Dutch Airlines, 132 F. Supp. 611 (S.D.N.Y. 1955)
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1
GIO General Ltd v Centennial Newstan Pty Ltd [2014] NSWCA 13
Girard v American Airlines, United States District Court, 2003 WL 21989978 (E.D.N.Y)
Hawkins v Clayton (1988) 164 CLR 539
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Julius Young Jewelry Manufacturing Co. v. Delta Air Lines, 67 A.D.2d 148 (N.Y. App. Div. 1979)
Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375
Little v Liverpool Corporation [1968] 2 All ER 343
Neindorf v Junkovic [2005] HCA 75
Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14
Povey v Qantas Airways Ltd [2005] HCA 33
Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749
Reed v. Wiser, 555 F.2d 1079 (2d Cir. 1977)
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Vumbaca v Terminal One Grp. Ass'n L.P., 859 F.Supp.2d 343 (E.D.N.Y. 2012
Waxman v. CIS Mexicana De Aviacion, SA De CV, 13 F. Supp. 2d 508 (S.D.N.Y. 1998)
Yeomans v Carbridge Pty Ltd (No 2) [2012] NSWDC 20
BURROWS DCJ:
Introduction
On Sunday 4 November 2012 the plaintiff was a passenger on Qantas flight QF 918 from Perth to Karratha. The flight was scheduled to arrive at Karratha Airport at 6.30 pm. The plaintiff disembarked the Boeing 737[1] aircraft via the rear stairs and followed a path across the tarmac to the terminal. The path was designated on the left side by bunting with flags strung between wheelie bins. At the intersection of the tarmac and a footpath leading to the terminal the bunting was tied between a wheelie bin and around a 30 foot lighting tower designed to light the apron area of the tarmac. As the plaintiff approached the lighting tower his left foot struck the corner of a raised concrete plinth at its base causing him to trip and fall.
[1] Agreed fact ts 166.
The first defendant (Qantas) was the carrier, as defined in the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (CACLA) as incorporated by Civil Aviation (Carriers' Liability) Act 1961 (WA), which operated flight QF 918.
Karratha Airport was owned and occupied by the second defendant, the City of Karratha (Karratha). Karratha had the exclusive responsibility for the erection of and alterations to any structures airside, including placing permanent barriers around the plinth and painting it.
The third defendant (Skystar) contracted with Qantas to provide ground handling services at Karratha Airport and employed a number of staff, including ground handlers, for that purpose. Skystar was responsible for the marshalling of passengers disembarking from QF 918 to the terminal building. Skystar employees positioned the wheelie bins and bunting which formed the pathway from the aircraft to the lighting tower. Skystar leased office premises from Karratha within the terminal building.
The trial took place on 14 to 23 May 2018 on the question of liability only. On 14 May 2018 judgment was entered for the plaintiff against Qantas in the amount of $500,000 (being the limit of Qantas' strict liability under the CACLA) and costs in the amount of $45,000. This resolved all issues as between the plaintiff and Qantas.
On 21 May 2018, judgment was entered for Qantas in its third party action against Skystar for 50% of Qantas' liability to the plaintiff.
The issues
The parties agreed the issues which require determination.[2] I have determined those issues as follows.
[2] Issues between the plaintiff and Karratha and Skystar dated 16 May 2018. Issues in dispute between the parties dated 21 May 2018.
Between the plaintiff and Karratha
(a)Was Karratha negligent within the meaning of s 5 of the Occupiers' Liability Act 1985 (WA) (the OLA) read with s 5B of the Civil Liabilities Act 2002 (WA) (the CLA)? Yes.
(b)Did Karratha owe a duty to warn the plaintiff of the risk presented by the plinth, in circumstances where Karratha contends that the risk that the plaintiff would trip on the plinth was obvious having regard to s 50 and s 5F of the CLA? Yes, the risk was not an obvious risk.
(c)Did that negligence/breach of duty cause or contribute to the plaintiff tripping on the plinth? Yes.
(d)If Karratha was negligent has it proved that the plaintiff was guilty of contributory negligence in tripping on the plinth and if so, to what degree? No.
Between the plaintiff and Skystar
(a)Was Skystar negligent within the meaning of s 5B of the CLA? Yes.
(b)Did Skystar owe a duty to warn the plaintiff of the risk presented by the plinth, in circumstances where Skystar contends that the risk that the plaintiff would trip on the plinth was obvious having regard to s 50 and s 5F of the CLA? Yes, the risk was not an obvious risk.
(c)Did that negligence/breach of duty cause or contribute to the plaintiff tripping on the plinth? Yes.
(d)If Skystar was negligent has it proved that the plaintiff was guilty of contributory negligence in tripping on the plinth and if so, to what degree? No.
(e)Has Skystar proved within the meaning of s 33 of the CACLA that in relation to its disembarkation function at Karratha Airport it:
(i)was an agent of Qantas; and
(ii)acting within the scope of its authority from Qantas? Yes.[3]
[3] It is an agreed fact that the plaintiff's trip and fall was an 'accident' within the meaning of the Carriers Act, and the location where it happened was in the course of disembarkation - Issues in dispute between the plaintiff and Karratha.
Between Karratha and Skystar – contribution claim
(a)On a proper construction of cl 6.2(c) of the lease between Skystar and Karratha (the lease), was Skystar obliged to effect a public liability policy of insurance which extended cover to Karratha with respect to Karratha's liability to the plaintiff? No.
(b)If the answer is yes did Skystar comply with that obligation by effecting a policy in accordance with the contractual promise? N/A.
(c)If both Skystar and Karratha are liable to the plaintiff what is the apportionment of liability between them? Skystar 50% Karratha 50%.
Between Qantas and Karratha
(a)Was a term implied into the agreement between Karratha and Qantas (Airport Agreement) to the effect that Karratha would provide safe access for passengers to disembark aircraft and access the terminal building at Karratha Airport? Yes.
b)In its supplementary outline of submissions filed on 22 May 2018 an alternative implied term was submitted by Qantas to the effect that Karratha promised or warranted that access to the terminal building for disembarking passengers from Qantas aircraft was as safe as reasonable care and skill on the part Karratha or anyone could make it. It is not necessary to consider the alternative implied term.
(c)Is Qantas entitled to damages against Karratha for the breach of either the implied term or the alternative implied term? Yes, in an amount to be assessed.
Factual background
Karratha Airport and the accident
In 2011/2012 approximately 800,000 passengers passed through Karratha Airport. In November 2012 there were approximately 15 flights per day in and out of the airport. The times for flight arrivals and departures ranged from about 7.30 am to 7.30 pm.
The tarmac, terminal and passenger walkways at Karratha Airport prior to June 2012 are best depicted in exhibit 1:
A passenger walkway runs east-west. The terminal is situated to the north of that pathway. There are three paths running north-south from the terminal to the passenger pathway near aircraft bays 1 and 2 on the apron area of the tarmac. Those paths were used by departing passengers to make their way from the terminal to the aircraft. To the west of those paths there is another path running north-south from the terminal to the passenger pathway which is used by arriving passengers to make their way to the terminal.
There is a 30 m high lighting tower which is located between the passenger pathway and the apron near the departure paths and aircraft bays 1 and 2. In exhibit 1 a Qantas plane can be seen parked in bay 2. Bay 1 is to the right of bay 2. There are lights at the top of the lighting tower which were angled to illuminate the apron area of the tarmac where aircraft parked. This enabled passengers and crew to see where they were going as they went up and down the stairs to and from the aircraft and across the apron. Those lights did not point down to the base of the lighting tower or the pathway. There was no ground lighting along or near the pathway.
In June 2012 the grassed area at the base of the lighting tower visible in exhibit 1 was removed and replaced with concrete by Karratha. Those works were scheduled for completion on 15 June 2012.[4] A photograph[5] taken on 14 February 2012 shows the grassed area and star picket bunting arrangement around that area which was in place prior to June 2012. This star picket/bunting arrangement guided passengers along the pathway. It prevented passengers from walking on the grass and kept them away from the concrete plinth at the base of the lighting tower.
[4] Karratha airport working plan, exhibit 17.
[5] Exhibit 2.
After the area was concreted in June 2012 the star pickets were not reinstated. A system of placing bunting and flags secured between wheelie bins was used by Skystar to create a pathway for disembarking passengers from the aircraft to the terminal. The position where the wheelie bins were placed varied.[6]
The accident
[6] ts 132.
The only witness to give evidence in relation to the plaintiff's fall was the plaintiff himself. The factual circumstances of the fall are largely undisputed. The plaintiff was employed as a contract work supervisor by Spotless. His employment was based in Wickham and Cape Lambert. He was engaged on a fly-in/fly-out basis working 12 days on and 9 days off. He commenced his employment in late 2010. The plaintiff was a regular traveller to and from Karratha Airport. He flew to Karratha on a Sunday evening in order to start work on the Monday. He would usually catch the flight that was scheduled to land in Karratha at 6.30 pm. He flew back from Karratha to Perth on a Friday evening. The return flight departed later than 6.30 pm. He always flew with Qantas. Between 15 June 2012 and 4 November 2012, the plaintiff flew between Perth and Karratha on 15 occasions.[7] Between 6 June 2010 and 4 November 2012 the plaintiff had travelled between Perth and Karratha 87 times with Qantas.
[7] Exhibit 8 Qantas frequent flyer records of plaintiff 6/6/2010 - 4/11/2012.
The plaintiff estimated there were 120 to 130 passengers on board QF 918 on 4 November 2012. Approximately 40 to 50 of those passengers were fellow Spotless staff. He was seated at the rear of the aircraft which landed at Karratha Airport at about 6.30 pm. He disembarked the aircraft via the rear stairs at about 6.45 pm.[8] Before disembarking, a series of wheelie bins connected by rope and flags had been set up by ground staff to guide passengers to the terminal. The plaintiff had seen this arrangement on previous occasions.
[8] ts 81.
He described the lighting in this way:
It was a bit on the gloomier side. The sun had gone down, but you still got a little bit of the effect of the rays and the sun. But basically it was sort of on the way to going towards dark.[9]
[9] ts 81.
Sunset was at 6.24 pm on 4 November 2012.[10]
[10] Exhibit 30.2 report of Dr Brad E Tucker 2 March 2017.
As the plaintiff walked to the terminal he was in the middle of the group of passengers. There were passengers to his right. The bunting was to his left and he 'was just sort of following that up to the terminal entrance'.[11] He described the weather as clear but windy with the wind blowing from the north. He described walking towards the terminal and then doing a dogleg to the left at the walkway which ran along the garden bed to the terminal entrance. The plaintiff said the passengers as a group started to move over to the right as he noticed a lighting tower. He did not make it to the lighting tower as he 'had a fall in between'.[12] As he approached the lighting tower his left foot struck something and he fell over. When he looked down he saw a plinth which was hard to distinguish in the light. The plinth was approximately 2 metres 'before' the lighting tower. He said he had never really noticed the plinth before and did not expect anything to be there. He 'just followed the ropes like everyone else'.[13] The wind was blowing the bunting to the left. He estimated the corner of the plinth protruded into the walkway past the bunting by a metre.[14] The plinth was the same colour as the walkway and the concrete surrounding it.
[11] ts 83.
[12] ts 84.
[13] ts 84.
[14] ts 85.
The dimensions of the plinth were an agreed fact in the trial and are shown on the photograph exhibit 19 (this photograph was taken after the plaintiff's accident and after the plinth was painted yellow and star pickets and bunting erected).
It is approximately 3,500 mm long and 1,500 mm wide. The highest point of the plinth is 170 mm. The point at which the plaintiff's foot struck the plinth at the north-east corner was 100 mm high. The plinth was tapered to allow the 30 mm lighting tower to be lowered for maintenance. The distance from the base of the lighting tower to the eastern edge is approximately 2130 mm.
The plaintiff fell onto his hands and landed on his elbow. When he fell to the ground he had his laptop in a backpack on his shoulder which fell to the ground. He fell on his phone and grazed the fingers on his right hand.[15]
[15] ts 86.
He then went into the terminal where he attempted to report the incident. He was told by security people at the scanning area that he would have to report it to Karratha and was given a phone number. He located a Skystar staff member, Ms Tania Davidson (now Leech), and reported the incident to her. Ms Davidson was not called as a witness at trial however a note she made in a Skystar diary was tendered as an exhibit.[16] The plaintiff was told to report the matter to Karratha.
[16] Diary entry exhibit 20.
After the plaintiff reported the matter Mr Milk or Ms Davidson took a photograph of the plinth on the Skystar camera.[17] That photograph shows that the bunting/flags were positioned at an angle across the plinth so that the north-east corner of the plinth protruded past the bunting.[18]
[17] Exhibit 20.
[18] Exhibit 2.
The plaintiff reported the incident to Ms Vicky Connelly, an employee of Karratha, by email at 5.24 pm on 5 November 2012.[19] Ms Connelly responded at 5.29 pm[20] advising that she had requested the concrete plinth be painted in brightly coloured paint to reduce the risk of any other accidents and that had been attended to. The plaintiff observed the plinth to have been painted yellow when he next flew to Karratha three weeks after the incident. He also observed the bunting and bin arrangement to have been set up differently, with the bin being in place near the corner of the plinth. He said prior to the incident the positioning of the blunting and bins varied, and that the same system was not in place on each occasion he landed in Karratha. He said that a star picket had been erected at the corner of the plinth at some point in time after the incident.[21]
[19] Exhibit 3.
[20] Exhibit 4.
[21] ts 91.
The plaintiff accepted in cross-examination he could have been speaking to other people whilst walking towards the terminal.[22] He was shown a photograph of the plinth, the metadata of which records the photograph having been taken at 6.46 pm on 4 November 2012.[23] It seems that it was Ms Davidson, the Skystar employee, who took the photograph was not called to give evidence at the trial. The plaintiff's evidence was that the photograph did not reflect the lighting as it was at the time his foot struck the plinth. He accepted that if the photograph was taken at 6.46 pm then he may well have disembarked from the aircraft earlier as it took him approximately 10 to 15 minutes to report the accident. I am unable to make a finding as to precisely what time the aircraft landed at Karratha Airport and when the passengers disembarked. Despite inquiries made of the parties, no evidence was able to be adduced in this regard. I am satisfied based on the metadata alone that exhibit 7.2 was taken at 6.46 pm however I am not satisfied that the photograph accurately reflects the lighting conditions, absent evidence of the camera used and its aperture/lighting settings.
[22] ts 105.
[23] Exhibit 7.2.
I found the plaintiff to be a credible witness who was not prone to exaggerate his evidence. He readily accepted that he could not be precise as to the time of disembarkation or when the incident happened. I am satisfied to the requisite standard that the plaintiff's account is honest and reliable and I accept his evidence as to the lighting conditions at the time his foot struck the plinth. I am satisfied that by the time the plaintiff disembarked from the aircraft the sun had gone down, it was dusk and the lighting was poor at the base of the lighting tower.
I am also satisfied that the plaintiff did not see the plinth before his foot struck it. This was because the plinth was a similar colour to the surrounding concrete, the lighting was gloomy and he was at the time walking in amongst a group of passengers. The corner of the plinth was protruding into the pathway which had been designated by the wheelie bins and bunting along which the plaintiff and other passengers were effectively channelled. Whilst the lighting tower itself was obvious, the plinth protruding 2130 mm from its base was not.
As a result of his fall, the plaintiff has required a number of surgical procedures including two left knee replacements, and will require further surgery in the future.[24] I am satisfied that he sustained an injury as a result of the fall. The precise nature and extent of the plaintiff's injury is yet to be determined.
Evidence of lighting and placement of wheelie bins, permanent fixtures around the base of lighting tower
Mr Maclagan's evidence
[24] ts 93.
My findings in relation to the lighting at Karratha Airport are supported by the evidence of Mr John Maclagan who was employed by Skystar working at Karratha Airport as a Ramp Support Officer. Mr Maclagan was called to give evidence in the plaintiff's case. He gave evidence that he did not work on Sundays as a rule.[25] He said that in total around 30 people were employed by Skystar at the airport in customer service and on the ramp (airside) to work in relation to a number of airlines including Qantas. Airside is defined as the area outside of the terminal including the baggage bay.[26] The area where the plinth is located is airside.[27]
[25] ts 119.
[26] ts 164.
[27] ts 236.
Mr Maclagan confirmed Skystar employees would push the stairs out to arriving aircraft, and bring out wheelie bins from which bunting was strung from the rear stairs to the corner of the wing and back to the front stairs to stop passengers walking around the engine and under the wing and to guide them to the footpath.[28] Another wheelie bin was situated off the left wing and bunting strung from it to the pathway.[29] The passengers would walk to the right of this bunting across the tarmac to the footpath, take a dogleg left, walk along the footpath then turn right and walk along the path that led to the terminal itself.[30] The placement of the bins depended on where the Skystar employee on duty at the time put them.[31] The bins and bunting were to guide passengers to and from the aircraft. There was no 'specific ruling' that the bins were set up to keep passengers away from the plinth. Mr Maclagan said in cross-examination that the main purpose of the bunting was to stop passengers crossing over into bay 2[32] and to ensure passengers were funnelled towards the concrete pathway.[33]
[28] ts 120.
[29] As marked by Mr Maclagan on exhibit 9.
[30] ts 124.
[31] ts 132.
[32] ts 137.
[33] ts 159.
No witness was called by Skystar to give evidence of the procedure adopted for the placement of wheelie bins and bunting after June 2012 including that adopted on the day of the accident. No document was tendered in the trial which set out a system for where the bins were to be placed when an aircraft landed in bay 1. I accept Mr Maclagan's evidence that the placement of the wheelie bins was dependent on where the Skystar employee on duty put them. No evidence to the contrary or of any defined system was adduced at trial. I am satisfied that if a wheelie bin had been placed at the north‑east corner of the plinth on 4 November 2012, the plinth would not have protruded into the pathway.
Mr Maclagan's evidence was that at dusk, the lighting varied depending on where on the apron you were and where the lights were situated in relation to the aircraft.[34] He said the lights on the lighting towers pointed slightly to the sides and onto the apron area.[35] No lights pointed down to the base of the lighting tower.[36] He described a slight shadowing of the sunset from the west at the base of the lighting tower at dusk. The only other lighting airside were spotlights on the outside of the terminal facing down towards the apron from the arrivals footpath. He described the lighting at dusk at the base of the lighting tower as 'it could be average sometimes … you're on the transition of night and day … the lights themselves weren't illuminating, giving a clear illumination'.[37] He said air reporting officers (ARO) from Karratha were airside a lot doing spot checks on wildlife and anything to do with the apron side including runways and lighting.[38]
[34] ts 125.
[35] ts 125 - 126.
[36] ts 126.
[37] ts 126 - 127.
[38] ts 127.
In relation to changes made to the plinth, Mr Maclagan gave evidence that Karratha installed the star pickets around the plinth. Skystar had no authority to put star pickets or anything 'out there' (on the apron) that was not approved by Karratha.[39] Before the plinth was painted yellow the lighting tower cast a shadow over it at dusk.[40] Permanent railings were installed along the walkway alongside the lighting tower later on[41] which 'made it a lot safer'.[42] Zebra crossing lines were painted on the angle at the front of each aircraft bay on the tarmac.[43] [44]Zebra markings could not be painted from the rear of the aircraft because of line marking on the apron.[45]
[39] ts 122.
[40] ts 134.
[41] Exhibit 29.1 purchase order for fence railing 20/5/16.
[42] ts 127.
[43] Exhibit 29.2 AMS invoice dated 16 June 2016.
[44] Exhibits 29.1 and 29.2 show the railings and zebra marking work was done in May ‑ July 2016 at a total cost of $83,580.
[45] ts 129.
I found Mr Maclagan to be a convincing witness and I have no difficulty accepting his evidence as to the lighting conditions which is consistent with the evidence given by the plaintiff in this regard. I accept his evidence that the manner in which Skystar employees placed the wheelie bins and buntings was dependent on the employee on any particular day.
Witnesses called by Karratha
Three witnesses were called to give evidence by Karratha, Mr Allan Wright, Mr Terrence Swetman and Mr Damien Milk.
Their evidence is relevant to the responsibilities of Karratha and Skystar personnel airside and in particular which entity was permitted to erect permanent structures around the base of the plinth and which entity was responsible for the marshalling of passengers disembarking from the aircraft.
Mr Wright's evidence
Mr Allan Wright had been employed by Karratha for approximately 22 years.[46] He held various positions over the course of his employment including an ARO. At the time of the plaintiff's accident he was the manager of the airport operations at Karratha Airport and responsible for ramp operations.[47] In relation to the lighting on the lighting tower, Mr Wright's evidence was that the lights were not allowed to shine above the horizontal because of civil aviation safety standards.[48] They shone down and were slightly angled out towards the apron to give more effect to the outer reaches of the apron.[49] The purpose of the lights was to illuminate the area where steps were pushed up against the aircraft and where the passengers come down the steps or walk across the apron.[50] Their purpose was not to light the passenger footpath.[51] He confirmed there were no lights along the footpath.[52]
[46] ts 177.
[47] ts 223, ts 236.
[48] ts 180.
[49] ts 192.
[50] ts 192.
[51] ts 234 – 235.
[52] ts 193, ts 195.
His evidence was that the grass surrounding the bottom of the plinth was replaced because of problems with baggage trolleys breaking sprinklers.[53]
[53] ts 181.
He gave evidence that the responsibility for the movement of Qantas passengers rests with Skystar.[54] The AROs had no role in putting out the bunting and wheelie bins.[55]
[54] ts 182.
[55] ts 183.
Mr Wright said he became aware of the plaintiff's fall on 5 November 2012. He arranged for Mr Milk and Mr Swetman to paint the plinth and put star pickets along the edge so the flagging/bunting was not tied to the lighting tower. This contained the plinth so it did not protrude beyond the flagging.[56] He was not aware of anyone having tripped over the plinth prior to the plaintiff.[57] His evidence was that the railing erected along the edge of the pathway in 2016 was for aesthetic purposes to improve the airside arrivals area.[58]
[56] ts 184.
[57] ts 185.
[58] ts 186.
In relation to the lighting tower he gave evidence that at the time of the plaintiff's accident the lights on top of the lighting tower were under the control of air traffic control who could turn the lights on manually at any time during their operational hours. There was also a capacity for ground handling agents to manually switch the lights on. In November 2012 the air traffic control tower ordinarily shut at 7.30 pm. There was also capacity for the pilot of an aircraft approaching Karratha Airport to activate the lights if required.[59] There was no set procedure for when the lights would be turned off or on or by whom.[60]
[59] ts 188.
[60] ts 189.
I am unable to conclude from the evidence of Mr Wright whether the lights on the lighting tower were illuminated on 4 November 2012. If they were, at what time they were turned on, and if when exhibit 7.2 was taken whether the lights on the tower had been turned on.
Mr Wright agreed in cross‑examination that the railings put up in 2016 and the painting of walkways out to the aircraft provided better direction to and control of where passengers walked.[61] He denied that it was part of his duties to keep an eye on safety at the airport in relation to passengers.[62] His role was to manage the safety management systems and chair the safety management meetings that were held in respect of the airport.[63] He denied that concerns had been raised about the quality of lighting at the base of the lighting tower before November 2012.[64] When referred to exhibit 12, being the minutes of a ramp meeting where the issue of lighting for gates 1, 2 and 3 out to departures needing to be replaced, was raised, Mr Wright's evidence was that the minutes referred to the lighting under the eaves in the terminal and he confirmed that there was no lighting on the footpath under the lighting tower. He said Karratha was responsible for the installation of star pickets around the base of the lighting tower and in relation to doing any works on the apron.[65] He could not recall having seen the star pickets which were in place in February 2012 at the base of the lighting tower as is evident from exhibit 2.[66] He confirmed that Mr Swetman was instructed to put star pickets next to the plinth so that flags could be tied to it and the plinth painted to make it more visible.[67] He agreed that once star pickets were erected at the corner of the plinth, there would be no opportunity for a passenger to trip on the corner of the plinth as they made their way from the tarmac to the terminal.[68]
[61] ts 190.
[62] ts 191.
[63] ts 190.
[64] ts 193.
[65] ts 198.
[66] ts 198.
[67] ts 198, ts 199.
[68] ts 201.
Mr Wright also agreed in cross‑examination that Karratha was ultimately responsible for:
(a)the safe operation of Karratha aerodrome;
(b)the provision and maintenance of lighting airside;
(c)fencing along the footpath adjacent to the plinth;
(d)the decision to conduct concreting works at the base of the plinth;
(e)developing the plan and method with respect to the way the concreting works were to be carried out and performed in June 2012;[69]
(f)any issue of safety raised airside;[70]
(g)Karratha staff including AROs that would have been traversing the area between the terminal and bay 1 on a regular basis in 2012.[71]
(h)the marshalling of passengers from the plane to the terminal was not part of his duties, it was the responsibility of Skystar.[72]
Mr Swetman's evidence
[69] ts 224 - 225 and exhibit 17, many method of work plan for the Karratha Airport dated 8 June 2012.
[70] ts 228.
[71] ts 242.
[72] ts 241, ts 244.
Mr Terrence Swetman was employed as an ARO by Karratha at the date of the accident. He had worked at Karratha Airport for 12 years in this position. His evidence was that the AROs would conduct daily inspections of the lighting towers and passenger pathways between the aircraft and the terminal.[73] The AROs played no role in marshalling disembarking passengers or putting out flagging. This was Skystar employees' role.[74] The AROs made sure the pathways were clean and serviceable for people to walk on; they looked out for hazards to passengers, including slipping and tripping hazards.[75] Karratha employees were the only ones who could have erected the star pickets which were in place in May 2012. They were designed to guide passengers from the aircraft to the terminal.[76] After the grassed area between the apron and the pathway was concreted, it all formed part of the one walkway area.[77] After the concreting, the only method that was used to keep passengers away from the base of the lighting tower was the flags, the ropes and the bins put in place by Skystar.[78] Passengers would go past this plinth at different times of the day from 7 am through to about 7 pm in different levels of lighting, walking into the setting sun.[79]
[73] ts 251.
[74] ts 249.
[75] ts 251.
[76] ts 253.
[77] ts 253; ts 254; ts 258.
[78] ts 253 - 254.
[79] ts 255.
The day after the plaintiff's accident, Mr Swetman was directed to paint the plinth yellow and put in the star pickets by Allan Wright.[80] He and Damien Milk painted the plinth yellow and erected star pickets and flagging.[81] There was an improvement in terms of the plinth's visibility after it was painted yellow.[82] It took approximately one and a half to two hours to paint the plinth[83] and around 1 hour to put up the star pickets and flagging.[84] They used star pickets and flagging Karratha had in stock in the workshop;[85] he took it upon himself to put up flags between the star pickets as he felt that would be a little bit safer and make it easier for passengers to see when guiding them around the plinth.[86] He agreed in cross-examination that the concreting of the area around the plinth and removal of star pickets in June 2012 meant that the area had become dangerous.[87]
Damien Milk's evidence
[80] ts 255.
[81] ts 255 - 256.
[82] ts 255.
[83] ts 255.
[84] ts 256.
[85] ts 256 - 257.
[86] ts 257.
[87] ts 260.
Mr Damien Milk was also employed by Karratha as an ARO work safety officer from December 2011 to March 2013. He was on duty on 4 December 2012.[88] He received a call from a ground handling representative 'at around 6.30 pm' advising that the plaintiff had tripped. He met the female ground handling representative who was wearing a Qantas uniform (presumably Ms Davidson) and one of them took a photograph of the plinth. He believed the flagging was tied around the lighting tower at one end and was unable to say what it was tied to at the other end. He agreed that his evidence of the lighting was reconstructed based on viewing exhibit 7.2 as opposed to any independent recollection.[89] He completed an incident report the next morning which stated approximately 300 mm of the plinth was outside the flagging.[90] He thought more than one photo was taken of the plinth.[91] The incident report referred to photographs as opposed to a singular photograph having been taken. No other photographs were adduced in evidence at trial. His evidence was that prior to the grass between the tarmac and the pathway being concreted, there were star pickets on both sides of the grass and leading along the path up past the lighting tower.[92] These star pickets and flagging were in place to try and steer people onto the paved path: 'Basically the problem was people will go in the shortest possible route so they used to traipse across the grass and go either side of the lighting tower'. [93] He said there was also an issue with vehicles being driven across the grass which cut it up causing pot holes that were also a hazard.[94] Karratha put in place these star pickets and flagged the area off.[95] He agreed in cross‑examination this was done to make it safer for embarking or disembarking passengers[96] and because Karratha had concerns in respect of the welfare or the safety of disembarking or embarking passengers.[97]
Mr Smith's evidence
[88] ts 270.
[89] ts 277.
[90] ts 281.
[91] ts 289.
[92] ts 275.
[93] ts 275.
[94] ts 275.
[95] ts 290.
[96] ts 290.
[97] ts 290.
Mr Smith was called to give evidence by Karratha. He confirmed taking a series of photographs of the lighting tower on 4 November 2015 between 6.18 and 6.43 pm from the west facing east on his phone.[98] The purpose of the photographs was as a 'comparator' for the lighting at the approximate time of the plaintiff's accident. Whilst taking the photographs he said the lights atop the tower came on.
[98] Exhibit 21.1 - 7.
I do not regard the photographs to be of any assistance as regard the lighting because of the position they were taken from, the type of camera used, the lack of any evidence that the weather conditions were the same as on 4 December 2012, and the fact that the metadata showed the phone had adjusted to different exposure settings in the series of photographs. The witness was unable to say how the alteration of exposure time changed the colour of the photograph.[99]
[99] ts 309 - 310.
What the photographs do show is the star picket and flagging arrangement erected on 5 November 2012 by Mr Swetman and Mr Milk following the plaintiff's accident.
Changes to area surrounding plinth
1.I am satisfied based on the evidence that prior to June 2012 the area surrounding the plinth between the apron and the pathway was grassed and therefore it was distinguishable from its surrounds; and that star pickets and bunting ran along the northern side of the plinth.[100]
2.The star pickets and bunting that were in place before June 2012 had been installed by Karratha.[101]
3.The grassed area between the apron and the pathway was concreted by Karratha in mid-June 2012.[102] It was Karratha's decision to conduct these concreting works.[103]
4.A photograph taken on 6 July 2012[104] shows that, as at that date, there were no star pickets securing the bunting along the pathway. Instead there was bunting running between wheelie bins and apparently secured to the lighting tower itself.
[100] Exhibit 2 - taken during Qantas audit 13 - 15 February 2017 exhibit 22.3, Mr Milk, ts 275.
[101] Mr Maclagan's evidence at ts 159; Mr Wright's evidence at ts 198; Mr Swetman's evidence at ts 253; Mr Milk's evidence at ts 290.
[102] Exhibit 17; Mr Wright's evidence at ts 181.
[103] Mr Wright's evidence at ts 224; Mr Swetman's evidence at ts 257.
[104] Exhibit 11.
Conclusion
The effect of the concreting work in June 2012 was that the formerly grassed area effectively became part of the pathway. The grassed area was concreted in a similar grey colour to the plinth. The star pickets and bunting, which had previously been positioned so as to keep pedestrians off the grassed area and away from the concrete plinth, were taken down and not replaced after the concreting work had been completed. It does not appear that star pickets were ever positioned in that area between June and November 2012. No star pickets were in position as at 4 November 2012. Karratha had authority to make any changes airside. This included the erection and removal of star pickets, painting of the plinth, or any changes to lighting airside.
After the concreting work was completed in June 2012, Skystar staff occasionally positioned a wheelie bin at the north-east corner of the plinth and tied bunting from the bin to the lighting tower itself. It also seems that on occasions a wheelie bin was not positioned at the corner of the plinth, but rather some distance away. In those circumstances, depending on precisely where the bin was placed, some part of the plinth protruded into the path of disembarking passengers. I am satisfied based on the evidence of the plaintiff and Mr Milk that on 4 November 2012 the north-east corner of the plinth protruded into the pathway for between 300 mm and 1000 mm. Passengers walking from the aircraft to the terminal were channelled into the path of the protruding plinth. Whilst the lighting tower itself was obvious, the corner of the plinth was not because of the lighting, colour of the plinth, its height of 100 mm at the point it protruded and the fact its edge extended 2130 mm to the east from the base of the lighting tower.
Was Karratha negligent within the meaning of s 5 of the OLA read with s 5B of the CLA?
The plaintiff's claim against Karratha is pleaded in negligence and breach of the OLA. It is claimed that Karratha owed a duty of care to passengers crossing the tarmac/pathway pursuant to the OLA and the CLA.
The pleadings
The particulars of negligence are pleaded as:
(a)Failing to properly illuminate the area of the plinth.
(b)Failing to paint the plinth or otherwise mark it so that it was clearly distinguishable from the surrounding pathway.
(c)Failing to erect balustrading, barricades, flagging or other equipment around the plinth so as to warn persons using the pathway of its presence and eliminate the hazard.
(d)Failing to establish and use an alternative route between the aircraft so as to prevent passengers walking close to the plinth.
(e)Failing to provide instructions and directions to Skystar as to the need to keep passengers clear of the plinth during disembarkation.
(f)Failing to warn the plaintiff of the presence of the plinth.
Karratha pleads that:
(a)The area surrounding the plinth was adequately illuminated.
(b)The plinth was clearly distinguishable from the adjacent pathway.
(c)Flagged bunting had been placed along the edge of the plinth by Skystar.
(d)The route utilised for passengers to walk from the aircraft to the terminal was selected by Skystar and was suitable for its purpose.
(e)There was no obligation or requirement to warn the plaintiff of the presence of the plinth which was clearly obvious.
Karratha also pleads that if it was negligent, the plaintiff caused or contributed to any loss or damage sustained by:
(a)Failing to keep a proper or any lookout for where he was walking;
(b)Failed to take reasonable care for his own safety by allowing himself to be distracted at the time of the accident by being engaged in a conversation.
Occupiers' Liability Act 1985
'Occupier of premises' is defined in s 2 of the OLA as meaning 'person occupying or having control of land or other premises'. In this case it is not in dispute that Karratha was the relevant occupier of Karratha Airport at the material time.
Section 5 of the OLA provides as follows:
5.Duty of care of occupier
(1)…the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)…
(3)…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
Karratha accepts it had a duty to passengers to take reasonable care for the safety of the plaintiff 'in respect of dangers which are due to the state of the premises': s 5(1) OLA.
The existence of a duty of care is to be determined according to common law principles; Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [77]. The question whether any duty of care found to exist has been breached is to be determined by reference to the CLA in particular s 5B: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 [27].
Civil Liability Act 2002
Relevant sections of the CLA are set out below:
5B.General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
5C.General principles
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements -
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) -
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault -
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5D.Onus of proof
In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
5E.Terms used
In this Division -
…
obvious risk has the meaning given by section 5F;
…
5F.Term used: obvious risk
(1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2)Obvious risks include risks that are patent or a matter of common knowledge.
(3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
…
5K.Standard of contributory negligence
(1)The principles that are applicable in determining whether a person is liable for harm caused by the fault of the person also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose -
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time.
…
Division 6 — Assumption of risk
5M. Term used: obvious risk
In this Division -
obvious risk has the meaning given by section 5E.
5N.Injured person presumed to be aware of obvious risk
(1)In determining liability for damages for harm caused by the fault of a person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2)For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
As stated by Buss JA (as he then was) in Department of Housing and Works v Smith [85] the criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA.
Foreseeable and not insignificant risk
In relation to s 5B(1)(a) and s 5B(1)(b) the plaintiff argues there was a foreseeable risk that a passenger following the designated pathway would not see the corner of a low plinth protruding into the pathway and trip and fall, thereby suffering injury.
Karratha argues to characterise the risk in this way focuses on the system of wheelie bins and bunting used to marshal passengers from the aircraft for which Karratha was not responsible. I do not agree. It is clear from the evidence of Mr Maclagan, Mr Wright and Mr Swetman that Karratha employees were airside daily and that those employees were well aware of the wheelie bin/flagging system used by Skystar. As part of that system the lighting tower was sometimes used to tie the rope with bunting around. Regular ramp meetings were held to discuss issues such as passenger safety between Karratha and Skystar. Further, Karratha was the only entity permitted to erect or paint any structures airside and was responsible for lighting the area at the base of the lighting tower. I am satisfied that the danger represented by the protruding plinth was, in part, due to the state of the premises in this case.
Karratha argues that the risk posed by the plinth was no more significant than that posed in every street where people are required to traverse stairs, there are differences in the level of paving slabs and in all kinds of weather and lighting conditions. It refers to the authorities involving pedestrians tripping and falling on uneven footpaths in this regard - Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512 where the court said that differences in levels in a pathway are part and parcel of daily life, and ordinarily pedestrians will be expected to exercise sufficient care by looking where they are going and observing and avoiding such hazards.
In Little v Liverpool Corporation [1968] 2 All ER 343, 345 Cumming‑Bruce J said:
Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.
However, as was observed in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council at [163] some allowance must be made for inadvertence. Certain dangers may not be readily perceived because of inadequate lighting or the nature of the danger, or the surrounding area. In such circumstances, there may be a foreseeable risk of harm to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap'.
In this case the presence of the protruding corner of the plinth at ankle height into a pedestrian walkway was not likely to have been expected. Passengers walking along the left side of the pathway were channelled into the path of the plinth. One would not expect such a protrusion into a designated pathway by a permanent structure of the same colour as the pathway.
The circumstances of this case can be contrasted with and distinguished from the situation of an uneven surface of a suburban driveway in Neindorf v Junkovic [2005] HCA 75 [94] (Hayne J), [116] (Callinan & Heydon JJ), or the situation of a pedestrian walking along a suburban street. It was reasonably to have been expected that passengers walking from the aircraft across the tarmac carrying hand luggage and perhaps talking to one another would include those who were distracted or inattentive. The risk of a passenger not seeing the plinth and tripping on it in those circumstances was foreseeable and not an insignificant risk, it was more than far-fetched or fanciful.
What precautions (if any) a reasonable person in Karratha's position would have taken: s 5B(2) CLA ,s 5(4) OLA
This requires consideration of the probability that the risk will materialise, the likely seriousness of the harm, the burden of taking precautions to avoid the risk, and the social utility of the activity that creates the risk of harm.
In Smith his Honour Buss JA referred at [87] to some well‑established propositions under the common law concerning the notion of a reasonable person and the standard of reasonableness which remain relevant in considering cases of an alleged breach of duty by an occupier which are not inconsistent with the criteria in s 5(1) and s 5(4) of the OLA or with s 5B of the CLA. In the determination of what, if anything a reasonable person in the occupier's position would have done involves an assessment of what would have been reasonable and practicable for the occupier to have done. This enquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Reasonableness may require no response to a foreseeable risk that is not insignificant and the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
The mere fact that a change is recommended or made after an accident does not support a conclusion of a breach of duty. It only shows what could have been done, not what should have been done. Whether what was done later should have been done earlier depends, inter alia, on whether 'it was inordinately expensive or in any other way disadvantageous': Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375 [94], [96].
In addressing the issue of reasonableness in the present case the following factors are significant:
(a)Passengers following a designated pathway bordered by flagging/bunting would not ordinarily expect to come across a low plinth protruding into the pathway which provided pedestrian access from the tarmac to the terminal.
(b)Passengers walking across the tarmac having disembarked from aircraft would do so at different times of day between 7.00 am and 7.00 pm in different lighting and weather conditions. Such passengers would be of various ages and levels of physical ability many of whom would either be carrying or pulling hand luggage.
(c)There would be passengers paying varying degrees of attention in walking along the pathway. Depending on their position on the pathway and where in the group of disembarking passengers they were positioned, the ability to see any protrusions would vary.
(d)The plinth and surrounding concrete were the same colour.
(e)There was no lighting at the base of the lighting tower or anywhere along the pathway.
In all the circumstances there was a real probability that if the plinth protruded past the flagging/bunting, a passenger would trip, fall and suffer significant injury. That risk could have been avoided and passengers made aware of the presence of the plinth if it was isolated by a barrier, such as a barrier comprising star pickets on each corner with flagging and bunting strung between or star pickets and bunting placed along the northern edge of the plinth to which a wheelie bin could have been attached by Skystar staff as was in place before June 2012. Alternatively, some form of warning on the north-east corner of the plinth, for example, a brightly coloured cone drilled into the plinth could have been installed at minimum cost and with little difficulty. Painting the plinth a bright colour so that it was more visible and distinguishable from the surrounding concrete was another simple and inexpensive measure that could have been taken. The burden of undertaking such simple measures was minimal.
There was no social utility in having the raised plinth protruding into the pathway: s 5B(2)(d). The purpose of the extended portion of the plinth was to enable the lighting tower to be lowered for servicing. The erection of a barrier on the four corners of the plinth would not interfere with the lighting tower being lowered when necessary.
Following the accident the plinth was painted bright yellow. Star pickets were erected at the northern corners of the plinth with bunting strung between them. This took Mr Milk and Mr Swetman between two to three hours utilising material from the on‑site workshop. These simple measures eliminated the risk of a passenger tripping and falling. The star picket and bunting arrangement in place before June 2012 eliminated the risk. Whilst one cannot look back in hindsight to identify what the reasonable person would have done, in this case Karratha had removed the barrier that eliminated the risk of harm four months prior to the plaintiff's accident. Its actions, in replicating to a degree the system it previously had in place post‑accident, are a factor that I have taken into account when considering what a reasonable person would have done.
The fact that a number of passengers had disembarked from aircraft parked in bay 1 and walked to the terminal between June and the date of the plaintiff's accident is not determinative of the probability of harm occurring (Karratha uses the figure of 330,000 passengers traversing the airport during that time in its submissions). Firstly, bay 1 was only one bay of four used by aircraft landing and departing from Karratha airport. Passengers disembarking from aircraft in bay 1 were the only ones to pass the plinth. I am unable to make a finding as to how many of such passengers there were, however it was not 330,000. Secondly, and more importantly, whether the corner of the plinth was exposed was largely dependent on where the wheelie bin was placed and the bunting tied by Skystar employees. If the bin was placed on the north‑east corner the plinth would not protrude into the pathway. It is therefore not possible based on the evidence to determine how often the plinth was exposed in the four and a half months between the surrounding area being concreted by Karratha and 4 November 2012.
The fact that the plaintiff was mid-way in the bunch of disembarking passengers and that none of those before or after him fell is also not determinative of the probability of harm occurring. The plinth extended only into the left side of the pathway at one particular point. Those passengers walking more than 1 metre from the flagging/bunting at the left would not have come into contact with the plinth. Those passengers in the immediate vicinity and coming behind the plaintiff would no doubt have been warned of the presence of the plinth when the plaintiff fell.
These considerations would, in my view, have lead a reasonable person in the position of Karratha to have taken one or more of those simple precautions outlined at [70]. Instead, it permitted Skystar to position wheelie bins and bunting in a way where, depending on the position of the wheelie bin, the plinth protruded into the path of passengers as they made their way from the aircraft to the terminal.
Section 5O CLA - was the risk of tripping on the plinth an 'obvious risk'?
Sections 5O and 5N are in div 6 (of pt 1A) of the CLA which is headed: 'Assumption of risk'.
Section 5O provides that a defendant does not owe a duty of care to a plaintiff to warn of a risk that is obvious to the plaintiff. An 'obvious risk' is defined in s 5E and s 5F (which is picked up by s 5M) as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person (who suffers harm). Obvious risks include risks that are patent or a matter of common knowledge, s 5F(2); a risk of something occurring can be an obvious risk even though it has a low probability of occurring, s 5F(3); a risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
In the present case, the plaintiff argues that he did not appreciate the risk because he did not see the plinth protruding into his path before he tripped. He saw the lighting tower as he approached it but not the plinth that protruded 2130 mm to the east of the base of the lighting tower. He moved to the right away from the lighting tower as he approached it, however his foot came in contact with the protruding edge of the plinth. He would not have tripped if he had seen the plinth in his path. The risk was not obvious to the plaintiff. He did not detect it at all before he tripped. Accordingly, s 5O has no application: Ratewave Pty Ltd v BJ Illingby [2017] NSWCA 103. That is only relevant to a duty to warn. The plaintiff says in any event the negligence of Karratha extends beyond a failure to warn the plaintiff of the hazard (before he tripped).
Karratha argues that the risk was obvious because of the size and location of the lighting tower. There was no duty to warn.
It is evident from exhibit 19 that the plinth was an unusual shape – extending 2130 mm at the base of the lighting tower to the east, whereas its dimensions were 1370 mm x 1370 mm directly at its base. The tower itself was so obvious so as not to require a warning. However, the extension to the east, when one would have expected a square of equal proportions at the base, was not obvious.
I accept the plaintiff's evidence that he saw the lighting tower but did not see the corner of the plinth. I am satisfied that the risk of tripping on the plinth the same colour as the surrounding pathway would not have been obvious to a reasonable person in the plaintiff's position.
I am satisfied that Karratha breached its duty of care owed to the plaintiff under the OLA and CLA by:
(a)Failing to properly illuminate the area of the plinth.
(b)Failing to paint the plinth or otherwise mark it so that it was clearly distinguishable from the surrounding pathway.
(c)Failing to erect balustrading, barricades, flagging or other equipment around the plinth so as to warn persons using the pathway of its presence and eliminate the hazard.
The plaintiff's claim against Karratha on the question of liability therefore succeeds.
Contributory negligence
Karratha pleads that the plaintiff's fall was caused or contributed to by his own negligence. The plaintiff denies he was negligent. Karratha argues that as the plaintiff had been to the airport approximately 100 times, a reasonable person in his position should have been aware of the plinth and should have 'looked out for where he was going'.
The plaintiff argues that he walked across the tarmac in the company of other passengers. He followed the pathway delineated by the bunting/flagging. The tarmac was level, and he was not expecting any obstacles in his path. In the prevailing conditions, he did not see the low plinth protruding into his path. He was not warned of any obstacle. He walked at a normal pace. He may have been talking to other passengers as passengers do, including the passengers who may have been talking to him. He argues that Karratha cannot point to any inappropriate or unreasonable conduct on his part.
I will determine the issue by applying the principles in s 5k of the CLA and having regard to the statements of principle in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [220].
I am satisfied there was no contributory negligence on the part of the plaintiff. Whilst he had been to the airport on many occasions between 2010 and 2012 in the course of his employment he had only been there eight times (15 arrivals and departures) between mid-June 2012 and 4 November 2012, the period when the area surrounding the plinth had changed. He did nothing that an ordinary reasonable passenger would not have done walking from the plane at dusk in a poorly illuminated area. He did not anticipate the presence of the plinth.
Has Skystar proved, within the meaning of s 33 of the CACLA as adopted as WA legislation by s 6 of the Civil Aviation (Carriers' Liability) Act 1961 (WA), that in relation to its disembarkation function at Karratha Airport it:
was an agent of Qantas; and
acted within the scope of its authority from Qantas
Qantas and Skystar entered into a contract titled Standard Ground Handling Agreement KTA-ASG-2011-014687 (the ground handling agreement) on or about 15 February 2011.[105] Pursuant to that agreement Skystar was responsible for the marshalling of passengers from the aircraft to the terminal. Qantas had no day-to-day presence at the airport and had delegated its ground handling responsibilities to Skystar.
[105] Exhibit 22.14.
Section 2.3.2 of annexure A to the ground handling agreement provided that Skystar was to direct passengers from the aircraft through controls. It was required to pay regard to safety in provision of the service and to have a safety management system in place.[106] In the absence of specific instructions from Qantas, Skystar was to follow its own standard practices and procedures in carrying out the ground handling services.[107] Clause 3.1 of annexure B to the agreement provided that Skystar was responsible for providing all equipment necessary to carry out the services other than some specified carrier owned equipment (which did not include items such as flags and bins for passenger marshalling). It was accepted at trial that the bins used by Skystar were provided by Qantas. The equipment was required to be fit for the purpose for which it was used.[108] The provisions of the agreement required Skystar to put in place training, supervision, procedures and equipment to ensure the safe marshalling of passengers along the path to the terminal building.
[106] Articles 5.6 and 5.12 of the ground handling agreement.
[107] 5.1 and 5.2 main agreement.
[108] Paragraph 16.13 (C of attachment 6).
Clause 21.5 of the ground handling agreement provided as follows:
Relationship of parties: Nothing in the agreement or any associated circumstances give rise to any relationship of joint venture, agency, partnership or employer and employee between the carrier and the handling company or between the carrier and any personnel of the handling company. The handling company has no right to assume or create any obligations of any kind, express or implied, in the name of or on behalf of the carrier.
Pursuant to the ground handling agreement Skystar employees would be airside when an aircraft landed at Karratha Airport and set up a designated pathway which they did by using the wheelie bins and flagging to direct arriving passengers from the tarmac to the terminal. A Skystar employee dressed in a Qantas uniform would come from the terminal, greet the arriving passengers on the tarmac and escort them to the terminal. Skystar employees would also unload passenger baggage from the aircraft and move the bags into the terminal and onto the carousel for collection by passengers. The Skystar employees engaged in removing passenger baggage and setting up the bunting and wheelie bins wore Skystar uniforms.[109]
[109] Maclagan ts 164.
The CACLA (as adopted by the WA Act) creates a statutory liability regime. The Acts apply to intra-state carriage of passengers where the criteria in s 27 CACLA has been met.
The background to the legislation was summarised in the plaintiff's submissions as follows and is not in contention:
In the 1920s there was a concern to provide some liability protection to air carriers in a fledgling airline industry, and to have some common rules regulating liability for international carriage of persons, luggage, and goods by commercial aircraft. That resulted in the Convention for the Unification of certain rules relating to International Carriage by Air which was signed in Warsaw in 1929 and came into force on 13 February 1933 (and is commonly known as the 'Warsaw Convention'). It has been adopted by numerous countries. The Warsaw Convention was written in French. Sometimes issues have been raised about the accuracy the translation of some parts to English. Article 17 provides that the carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 21 provides that if the carrier proves that the damage was caused by or contributed to by the negligence of the injured person, the court may, in accordance with the provisions of its own law, exonerate the carrier wholly or partly from liability. By article 22 the liability of the carrier for each passenger is limited to the sum of Fr.125,000. Article 23 prevents contracting out of that liability. Article 29 imposes a two-year limitation period.
The applicability of the Convention to a flight is determined according to the point of departure and ultimate destination (and whether the countries involved have adopted the Convention). Some injured passengers have attempted to avoid the cap on damages by bringing a negligence action against the pilot, or an employee of the airline. Courts ruled that the Warsaw Convention extended to servants and agents of the carrier, because the carrier would be liable to indemnify its servants and agents, and if the Convention did not extend to them, the carrier would end up being liable for such awards, and the purpose of the Convention would be defeated: e.g. Reed v Wiser (1977) 555 F. 2d 1079.
At a conference at the Hague in September 1955, a Protocol (the 'Hague Protocol') for the amendment of the Warsaw Convention was adopted by the parties to the Protocol as 'amending' the Warsaw Convention (as if it was one document) and is known as the Warsaw Convention as amended at the Hague in 1955. That is not actually an amendment, but rather a new and separate convention that is only binding between the parties to it. That introduced Article 25A which expressly extended the Convention to servants and agents of the carrier (similar to s.33 of the Carriers' Act). The USA did not adopt the Hague Protocol (and therefore the USA cases deal with the original Warsaw Convention, until the Montreal Convention was adopted). The 1999 Montreal Convention recognised the need to recognise and modernise the Warsaw Convention (reflecting no doubt the financial success and safety of modern airlines, and their ability to insure risk). There is an ability under the Montreal Convention to exceed the limits of liability unless the carrier proves that the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or that it was due to the negligence or other wrongful act or omission of a third party: Article 21 para 2. If an action is brought against a servant or agent of the carrier, such servant or agent, if they prove that they acted within the scope of their employment, are entitled to avail themselves of the limits the carrier is entitled to invoke under that Convention. Article 30 para 1.
The provisions of the CACLA, which picks up the various Conventions (which appear as schedules to the Act) is considered against that background.
Section 28 CACLA provides:
Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Section 33 CACLA provides:
Servants and agents of carrier
(1) If an action in respect of any damage is brought against a servant or agent of a carrier, the servant or agent, if he or she proves that he or she acted within the scope of his or her employment or authority, is entitled to avail himself or herself of the limits of liability, if any, which the carrier would be entitled to invoke under section 31 in an action against the carrier in respect of that damage.
(2)The aggregate of the amounts recoverable from the carrier, the carrier's servants and agents shall not exceed the limits referred to in the last preceding subsection.
(3)The right to bring an action against a servant or agent of a carrier in respect of any damage, being damage which gave rise to a cause of action against the carrier under this Part, is extinguished if the action is not brought within the time specified in the next succeeding section.
Section 34 CACL provides:
Limitation of actions
The right of a person to damages under this Part is extinguished if an action is not brought by him or her or for his or her benefit within two years after the date of arrival of the aircraft at the destination, or, where the aircraft did not arrive at the destination;
(a)the date on which the aircraft ought to have arrived at the destination; or
(b)the date on which the carriage stopped;
whichever is the later.
Section 6 of the WA Carriers' Act provides:
6.Application of certain provisions of the Commonwealth Act
The provisions of Parts IV and IVA of the Commonwealth Act (other than sections 27, 40, 41 and 41J(8)) and the provisions of the Commonwealth Regulations apply to and in relation to carriage to which this Act applies and matters connected with the carriage, as if those provisions were incorporated in this Act and as if, in those provisions as so incorporated —
(a)general references to Parts IV and IVA of the Commonwealth Act were references to this Act;
(b)a reference in one of those provisions to another of those provisions were a reference to that other provision as applying by virtue of this Act;
(c)the reference in section 29(5) of the Commonwealth Act to carriage referred to in section 27(4) of the Commonwealth Act were a reference to the carriage of a passenger where -
(i)the carriage of the passenger between 2 places was to be performed by 2 or more carriers in successive stages;
(ii)the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by 2 or more contracts; and
(iii)this Act would have applied to that carriage if it had been performed by a single carrier under a single contract;
and
(d)the references in the Commonwealth Act to the regulations relating to certain matters were references to the provisions of the Commonwealth regulations relating to those matters as applying by virtue of this Act.
Section 5 of the WA Carriers' Act defines the carriage to which the Act applies as follows:
5.Carriage to which Act applies
(1)The carriage to which this Act applies is the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in the State and another place in the State, not being -
(a)carriage to which Part IV of the Commonwealth Act applies;
(b)carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies; or
(c)carriage to which the provisions of another convention, protocol or treaty apply, being provisions that have the force of law under the Commonwealth Act and that are prescribed for the purposes of this paragraph by the regulations under this Act.
(2)A contract for the carriage of a passenger whereby the carriage is to begin and end at the one place in the State shall, irrespective of whether the carriage is to include a landing at any other place in the State, be deemed for the purposes of subsection (1) to be a contract for the carriage of the passenger between a place in the State and another place in the State.
If the CACLA applies to the plaintiff's claim against Skystar, the plaintiff's right to damages is extinguished pursuant to s 33(3) and s 34(b) as no action was brought against Skystar under the WA Carriers' Act within two years of his accident.
It is not in dispute that the plaintiff's trip and fall was an 'accident' within the meaning of s 28 CACLA and that the accident occurred in the course of the plaintiff disembarking from flight QF 918.
The questions for determination are:
1.was Skystar Qantas' agent within s 33 CACLA and, if so,
2.was Skystar acting within the scope of its authority at the time of the accident.
Skystar argues that it was acting within the scope of its authority at the time of the accident. It contracted with Qantas to perform ground handling at Karratha Airport. Part of the ground handling service was to marshal disembarking passengers from the aircraft to the terminal. Skystar was performing the service that it was contracted to do at the time of the accident.
The plaintiff does not argue to the contrary.
I am satisfied that Skystar was acting within the scope of its authority pursuant to the ground handling agreement at the time of the plaintiff's accident.
The real issue between the parties is whether Skystar was Qantas' agent for the purposes of s 33 of the CACLA.
Skystar argues that it was for the following reasons:
(a)Included in Qantas' contractual obligations to the plaintiff pursuant to the contract of carriage was the obligation to have the plaintiff embark the aircraft and disembark the aircraft. These obligations did not end once the plaintiff stepped off the aircraft onto the tarmac. They ended at the earliest when he arrived in the terminal.
(b)Skystar and Qantas contracted in the ground handling agreement for Skystar to perform part of the contract of carriage being one of Qantas' functions as carrier, namely the portion of the contract involving the plaintiff disembarking the aircraft. Once the passengers departed the aircraft and arrived on the tarmac at Karratha, Qantas ceased to have a role in the performance of the remainder of the contract of carriage. Qantas' crew did not play a role in marshalling the disembarking passengers.[110] Qantas had no staff in the terminal.[111] The customer services officer who greeted passengers on the tarmac whilst employed by Skystar, presented as a Qantas employee dressed in a Qantas uniform.[112] Qantas was not performing the disembarking aspect of the contract of carriage, but rather had arranged to have that part of the contract performed by Skystar, such arrangement Skystar argues is a classic example of a relationship of agency.
[110] ts 146.
[111] ts 144.
[112] ts 112, ts 112.9, ts 144.
Karratha also submits that the term was not necessary because it had its own obligations to passengers under the OLA. Karratha can owe separate (and partly overlapping) obligations to entrants under the OLA and to Qantas in contract. I accept Qantas' argument that the co‑existing obligation to entrants is not a reason to deny the implication of a contractual term owed to Qantas by Karratha.
Karratha's obligations to passengers do not detract from the fact that the Airport Agreement would not operate reasonably or effectively without an implied term that Karratha would provide safe access. Qantas could not use the airport for the intended purpose of the contract without assurance of safe access, and only Karratha (with sole control over the airport infrastructure) could provide a safe access route.
I am satisfied that safe access for disembarking passengers is essential to the Airport Agreement.
Karratha submits that a properly advised party would not have agreed to the implied term.
I accept the argument that at the time of contracting, it is difficult to see the basis upon which Karratha could, and would, legitimately have considered or contended that: (i) Karratha would allow Qantas to access and use the airport in exchange for fees and charges; (ii) Karratha would continue to control the airside infrastructure and would not permit Qantas to make permanent or structural changes; (iii) but Karratha would not agree to provide a safe access route for disembarking passengers.
In conclusion I find there was a term implied into the Airport Agreement between Karratha and Qantas to the effect that Karratha would provide safe access for passengers to disembark aircrafts and access the terminal building at Karratha Airport. Karratha breached that term during the period June 2012 to 5 November 2012 by the exposed plinth creating a tripping hazard. Qantas is entitled to damages for the breach of the implied term to be assessed. In light of these findings it is not necessary to imply the alternative implied term into the Airport Agreement.
I will hear the parties as to the appropriate orders and on costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
4 JULY 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GARNETT -v- QANTAS AIRWAYS LTD [2019] WADC 89 (S)
CORAM: BURROWS DCJ
HEARD: 4 JULY 2019
DELIVERED : 29 OCTOBER 2019
FILE NO/S: CIV 2359 of 2014
BETWEEN: RODNEY JOHN GARNETT
Plaintiff
AND
QANTAS AIRWAYS LTD
First Defendant
CITY OF KARRATHA
Second Defendant
SKYSTAR AIRPORT SERVICES PTY LTD
Third Defendant
CITY OF KARRATHA
First Third Party
SKYSTAR AIRPORT SERVICES PTY LTD
Second Third Party
Catchwords:
Practice and procedure - Costs - Application for costs - Special orders - Whether costs should be taxed on an indemnity basis - Whether rejection of Calderbank offer was reasonable
Legislation:
Civil Aviation (Carriers Liability) Act 1959 (Cth)
Civil Aviation (Carriers Liability) Act 1961 (WA)
District Court of Western Australia Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Cost orders made
Representation:
Counsel:
| Plaintiff | : | Mr B Bradley |
| First Defendant | : | Ms C V Wren |
| Second Defendant | : | Mr S A Richards |
| Third Defendant | : | Mr G Pynt |
| First Third Party | : | Mr S A Richards |
| Second Third Party | : | Mr G Pynt |
Solicitors:
| Plaintiff | : | Bradley Bayly Legal |
| First Defendant | : | HWL Ebsworth Lawyers |
| Second Defendant | : | SRB Legal |
| Third Defendant | : | GSG Legal |
| First Third Party | : | SRB Legal |
| Second Third Party | : | GSG Legal |
Case(s) referred to in decision(s):
Bullock v London General Omnibus Co [1904‑7] All ER Rep 44
Coastal Hire Pty Ltd v Ewers [2009] WASCA 36(S)
Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Garnett v Qantas Airways Ltd [2019] WADC 89
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Starshore Pty Ltd v Kellas [2018] WADC 113(S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
Woodley v Woodley [No 2] [2017] WASC 94(S)
BURROWS DCJ:
On 4 July 2019 I published my reasons for decision on the question of liability in relation to this matter: Garnett v Qantas Airways Ltd [2019] WADC 89. The parties requested time to consider the judgment and to confer before moving for orders. The matter was adjourned for further hearing at 9.00 am on 8 August 2019.
On 8 August 2019 a minute of consent orders was filed by the parties programming the filing of minutes of proposed orders and submissions on costs. The parties have now filed those documents. By agreement the determination of the orders to be made in respect to judgment and costs is to be made on the papers without further hearing.
In these reasons I will refer to the parties, other than the plaintiff, by name.
There are four issues requiring determination by me in respect of orders to be made and costs:
1.Should the third party action between Qantas and Karratha be heard separately and following the main action for assessment of damages between the plaintiff and Karratha?
2.Should the parties to the main action and the parties to the third party action be ordered to attend mediation or should the matter be listed before a registrar for directions?
3.Should the plaintiff pay Skystar's costs? If so should they be paid on a reduced rate of 35% or on an indemnity basis?
4.If the plaintiff is ordered to pay the costs of the proceedings between the plaintiff and Skystar, should Karratha be ordered to indemnify the plaintiff in respect of his liability to pay those costs by way of a Bullock order or Sanderson order?
Issues 1 and 2 - background
In the main action the plaintiff claimed against Qantas pursuant to the Civil Aviation (Carriers Liability) Act 1959 (Cth) (CACLA) (as incorporated by Civil Aviation (Carriers Liability) Act 1961 (WA)).
In the third party action Qantas claimed against Karratha and Skystar for its potential liability to the plaintiff. On 14 May 2018 judgment was entered by consent for the plaintiff against Qantas: Garnett v Qantas [5].
On 21 May 2018 judgment was entered by consent for Qantas in its third party action against Skystar for 50% of Qantas' liability to the plaintiff: Garnett v Qantas [6].
Qantas continued its claim against Karratha seeking damages in the amount of $272,500 being 50% of the judgment entered for the plaintiff against Qantas and 50% of the costs ordered for the plaintiff against Qantas.
I found that there was a term implied into the airport agreement between Karratha and Qantas to the effect that Karratha would provide safe access for passengers to disembark aircrafts and access the terminal building at Karratha airport and that Karratha breached the term entitling Qantas to damages to be assessed: Garnett v Qantas [7], [208].
Qantas submits the assessment of damages and costs in the third party action should be heard separately from, and after determination of, quantum in the main action and that the costs as between Qantas and Karratha be reserved. The plaintiff agrees to those orders being made.
Qantas argues that the assessment of the plaintiff's damages in the main action will necessarily involve consideration of the medical and other evidence with respect to his injuries and damages. It is not yet known whether Karratha contends that the quantum of the damages sustained by the plaintiff by reason of his injury is less than the $500,000 paid by Qantas to the plaintiff under the CACLA and if so, that it was unreasonable for Qantas to settle with the plaintiff for $500,000. Issues of this nature, Qantas argues, may fall away once the plaintiff's damages claim has been heard and assessed.
Karratha has filed submissions dated 11 September 2019 in opposition to the plaintiff's application for a Bullock order or Sanderson order against it. It does not make any submissions in respect of the orders sought by Qantas in respect to the third party action.
I interpret from Karratha's silence on the orders sought by Qantas in respect of the third party action that it does not oppose the orders being made.
In any event I will give all parties seven days following receipt of these reasons liberty to apply to be heard in respect of the form of the orders I propose to make.
I am satisfied that it is appropriate that the third party action be heard after the main action for the reasons outlined by Qantas. To require Qantas to participate in the main action will incur unnecessary costs as it will play no active part in those proceedings. The issues on the third party action are discrete and should be heard separately.
Issue 2 - mediation or directions
The plaintiff opposes an order being made that the parties to the main action and the third party action attend a mediation conference on the assessment of damages before a registrar. The plaintiff submits that the preferable course is for an order to be made that the action between the plaintiff and Karratha proceed to a directions hearing before a registrar on a date and time to be fixed by the court.
I am satisfied that this matter would benefit from mediation with a view to resolving the outstanding issues. I reach that view having had the benefit of presiding over the liability trial where a number of issues were resolved between the parties at the commencement of, and in the course of, the trial. The plaintiff has now given evidence which will no doubt assist the parties in the assessment of damages phase in relation to credibility. Accordingly I will order that the parties liaise with listings to arrange a suitable date and time for mediation to take place before a registrar of the court. If the mediation is unsuccessful in resolving the outstanding issues the same registrar can make the appropriate directions for the programming of the main action and third party action for trial.
I now turn to the issue of whether any special orders should be made in respect of costs.
Costs - general principles
The principles regarding the award of costs are well settled. The power to award costs is a statutory power and its exercise is discretionary: s 64(1) of the District Court of Western Australia Act1969 (WA). Where no order as to their payment or apportionment is made the default position is that costs shall abide the event: s 64(1) District Court of Western Australia Act.
That statutory discretion is not unqualified and must be exercised judicially in accordance with established principle and factors directly connected with the litigation. The most important factor which guides the exercise of the costs discretion is the result of the litigation: Woodley v Woodley [No 2] [2017] WASC 94(S) [14] (footnotes omitted) (Pritchard J).
Order 66 r (1) and r (2) of the Rules of the Supreme Court 1971 (WA), which apply by operation of s 87 of the District Court of Western Australia Act, provide that without limiting the discretion, the court will generally order that a successful party recover its costs. Order 66 r (2) provides that a court may deprive a successful party of its costs in whole or in part or order costs be paid in whole or in part by the successful party to the unsuccessful party if the conduct of the successful party has resulted in unnecessary or unreasonably incurred costs.
The expression the 'usual order as to costs' embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in the reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] (McHugh J).
The discretion of the court is to be exercised in accordance with the justice of the case.
A party entitled to costs may apply to the court for an order that costs awarded in their favour be paid other than as between party and party.
To warrant a departure from the ordinary rule that costs should be paid on a party and party basis there should be some special or unusual feature in the case. The question must always be whether the particular facts and circumstances of the case warrants the making of an order for payment of costs other than on a party and party basis: Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, 233 ‑ 234.
Indemnity costs - Should the plaintiff pay Skystar's costs? If so should they be paid on a reduced rate of 35% or on an indemnity basis?
Skystar seeks orders that the plaintiff pay its costs of the main action to be taxed on a party and party basis to 24 September 2015 and thereafter on an indemnity basis (or alternatively on an indemnity basis from 18 May 2018 when Skystar's Calderbank offer was made and rejected). It relies on an affidavit of its solicitor, Mark Andrew Grey Spencer, sworn 29 August 2019 attaching various correspondence between the solicitors for the parties and its submissions in response to in plaintiff's action and defences to the third party actions in the liability trial dated 8 May 2018.
The plaintiff submits there should be no order as to costs of the proceedings between the plaintiff and Skystar. Alternatively Skystar's recovery of costs from the plaintiff should be limited to no more that 35% of the costs of the action brought against it by Skystar. It opposes any order for indemnity costs.
I found that the plaintiff's claim against Skystar was extinguished, the plaintiff having failed to bring an action within the requisite two‑year period provided for by s 34 of the CACLA. This followed upon my finding that Skystar was the agent of Qantas for the purposes of s 33 of the CACLA: Garnett v Qantas [135]. I then went on to consider the issue of the plaintiff's claim in negligence against Skystar and found that Skystar was negligent for the reasons outlined at [149] and, but for my finding that Skystar was the agent of Qantas, would have apportioned liability between Skystar and Karratha as to 50% Skystar and 50% to Karratha.
Skystar argues that it advised the plaintiff's former solicitors Messrs Friedman Laurie Singh & D'Angelo in writing as early as 24 September 2015 that Skystar was the agent of Qantas for the purpose of s 33 of the CACLA and that the plaintiff's claim was extinguished because it had not been brought within the requisite two‑year period.[121]
[121] Annexure MGS-2 to affidavit of Mark Andrew Gray-Spencer, pages 53 – 55.
In this correspondence it put the plaintiff's former solicitors on notice that if he continued with his claim, Skystar would make an application for indemnity costs if successful.
This defence was pleaded in the Skystar defence filed and served on 5 November 2015.
The plaintiff subsequently changed solicitors to his current solicitors Bradley Bailey Legal on 16 November 2015.
On 14 March 2016 Skystar wrote to the plaintiff's current solicitors reiterating that the claim was extinguished and requested that the plaintiff discontinue his claim against Skystar.
On 18 May 2018, being the fifth day of the trial which commenced on 14 May 2018, Skystar's solicitors served the plaintiff's solicitors with a Calderbank offer for judgment in favour of Skystar on a 'each party pay and bear their own costs' basis. Skystar's solicitor advised the plaintiff's solicitors that they would seek indemnity costs if that offer was rejected, which it was.
Skystar argues that the position that it was Qantas' agent and the plaintiff's claim against it was extinguished had not altered from 21 September 2015. That position was repeatedly conveyed to the plaintiff's former and current solicitors who were reminded that Skystar would seek indemnity costs if the claim against Skystar was pressed. They argue the plaintiff's conduct in prosecuting the claim was unreasonable because his claim was always extinguished and he knew or ought to have known that from his solicitors.
The plaintiff submits that it did not bring an action under the CACLA against Skystar. Its action was in negligence, which claim was litigated at the trial. If Skystar had been found not to be an agent of Qantas then the provisions of the CACLA would not have applied and the plaintiff would have succeeded in its action in negligence against Skystar. The plaintiff was successful on the issue of negligence at trial but unsuccessful on the issue as to whether Skystar was the agent of Qantas for the purpose of s 33 of the CACLA.
The plaintiff argues that Skystar denied negligence and pleaded contributory negligence in its defence filed 11 June 2016 and points to the fact that Qantas did not admit or deny in its defence filed 11 July 2016 that Skystar was an independent contractor as pleaded by the plaintiff, nor did it admit that Skystar was its agent in proceedings between Qantas and Skystar.[122] Accordingly, Skystar was put to the cost of proving it was the agent of Qantas by both the pleadings of Qantas and the plaintiff.
[122] Defence lodged on 22 December 2017 – papers for the judge, page 81 at par 15.
The plaintiff argues:
1.That the negligence action was not statute barred.
2.There was merit in his action of negligence which has been confirmed by the court's findings.
3.The claim that Skystar was not the agent of Qantas for the purpose of s 33 of the CACLA had merit and was clearly arguable. It is not a case where the plaintiff had wilful disregard of known facts or the clearly established law or where properly advised he should have known he had no chance of success in his negligence action or where he persisted in what should on a proper consideration be seen to be a hopeless case or there was some ulterior motive because of some wilful disregard or known fact or the clearly established law.
The plaintiff points out that the proceedings between Qantas and Skystar remained on foot until after the commencement of the trial when those parties reached settlement part way through the trial on 21 May 2018. Accordingly, Skystar conducted a defence of the negligence issue pleaded against it by Qantas identical to its defence of negligence pleaded against it by the plaintiff.
The plaintiff argues that where there are multiple issues in a case the court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. In this case it says the difficulty of the agency issue is evidenced by the fact that it remained in dispute between Qantas and Skystar at the commencement of the trial.
The plaintiff submits that there should not be an order as to costs of the proceedings as between the plaintiff and Skystar or alternatively Skystar's recovery of costs from the plaintiff should be limited to no more than 35% of the costs of the action brought against it by the plaintiff. The plaintiff does not elaborate on how it reaches the percentage of 35% in its submissions.
In relation to the Calderbank offer, the plaintiff argues that it was made on the fifth day of the trial and required the plaintiff to capitulate at a time when the plaintiff was committed to the trial, therefore to make the alternative costs order sought by Skystar would not be fair and reasonable in the circumstances of this case.
Indemnity costs - the law
The principles upon which indemnity costs orders should be made are well established. They were set out in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) [10] where the court said:
The principles applicable to the making of indemnity costs orders in litigation may be briefly summarised, as follows:
1.A superior court, in its inherent jurisdiction, may make an indemnity costs order (see also Supreme Court Act 1935 s 37, and Legal Profession Act 2008 s 280).
2.An indemnity costs order departs from the usual costs disposition order, whereby costs are awarded on a party/party basis: EMI Records Ltd v Ian Cameron Wallace Ltd [1938] Ch 59.
3.The court's discretion as to the making of an indemnity costs order is a discretion that must be exercised judicially. In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397, 400 Woodward J said:
Courts in both the United Kingdom and Australia have long accepted that solicitor and client costs can properly be awarded in appropriate cases, where 'there is some special or unusual feature in the case to justify the court exercising its discretion in that way'. (emphasis added)
4.To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) (1993) 46 IR 301 at 303 French J by reference to the observations of Woodward J in Fountain Selected Meats, said:
It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.
5.Furthermore, in Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Unreported, FCA, 3 May 1991) (referred to by Ipp J in Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190, 191), French J observed:
The categories in which the discretion may be exercised are not closed.
6.Competing principles need to be balanced in assessing the making of a potential award of indemnity costs. In Quancorp Pty Ltd v MacDonald [1999] WASCA 101 [7] Wheeler J observed:
On the one hand, a party should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain. Uncertainty is inherent in many areas of law and the law changes with changing circumstances. It is inappropriate that a case be too readily characterised as 'hopeless' so as to justify an award of indemnity costs to the successful party. However, where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear the increased cost. Persisting in a case which can only be characterised as 'hopeless' is an example of the type of conduct which may lead the court to a view that the party whose conduct a rise to the costs should bear them in full.
7.An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233 (Sheppard J), referred to by Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [9].
8.A properly crafted special costs order may obviate the need for an indemnity costs order, where components of cost scale items are allowed above the applicable scale ceiling: see Flotilla [20] ‑ [24].
9.An indemnity costs order may not be appropriate if the claimed costs would be likely to be recovered under the standard order for party and party costs, or under a special order raising or removing a scale ceiling allowance: Flotilla [11]. In Unioil (No 2) (193), Ipp J observed:
However, counsel for the plaintiffs was unable to identify any costs so incurred that would not be covered by an order for party and party costs. An order for indemnity costs on this ground is therefore not warranted.
10.Nonetheless, an indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct: see Brookvista Pty Ltd vMeloni [2009] WASCA 180 [32], Flotilla [25]. In Flotilla Pullin J said [26]:
A solicitor should not, in my view, resort to an application for an indemnity costs order merely to secure the recovery which could be achieved by a properly formulated special costs order, unless the unsuccessful party's conduct is genuinely to be impugned by the successful party.
Pritchard J in Woodley v Woodley [No 2] [18] added the following additional principle:
… an order for costs on an indemnity basis may be made on the grounds that an action was 'hopeless' in the sense that the action was 'commenced or continued in circumstances where the plaintiff, properly advised, should have known that the action had no prospect of success. An action which appears to have been commenced or continued in circumstances where the applicant, properly advised, should have known that he or she had no chance of success, may be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of known facts or the clearly established law.
(footnotes omitted)
The principles in relation to Calderbank offers and indemnity costs were recently summarised by Glancy J in Starshore Pty Ltd v Kellas [2018] WADC 113(S) [29] ‑ [32]:
Rejection of a Calderbank offer may justify an award of indemnity costs if its rejection was unreasonable: Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115 [16]; (2009) 41 WAR 1. The mere fact that the recipient of a Calderbank offer is ultimately worse off than he or she would have been had the offer been accepted, does not mean that its rejection was unreasonable: Ford Motor Co of Australia Ltd v Lo Presti [18].
The party who makes a Calderbank offer that is rejected bears the onus of satisfying the court that it should make an award of indemnity costs in his or her favour.
The exercise of the court's discretion in relation to applications for indemnity costs and other special costs orders draws on the trial judge's knowledge of how the parties approached the litigation, and of the reasonableness of the parties' conduct in all of the circumstances. Deciding whether conduct is 'reasonable' or 'unreasonable' always involves matters of judgement and impression: Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 [24].
Factors which are considered by the court in considering whether to award indemnity costs following the rejection of a Calderbank offer were set out in Ford Motor Co of Australia Ltd v Lo Presti [19] citing Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [25] as follows:
(a)the stage of the proceedings at which the offer was received;
(b)the time allowed for the offeree to consider the offer;
(c)the extent of the compromise offered;
(d)the offerees prospect of success, assessed as at the date of the offer;
(e)the clarity with which the terms of the offer were expressed; and
(f)whether the offer foreshadowed an application for indemnity costs in the event of the offerees rejecting it.
In this case there is no special or unusual feature of the case which would warrant an award of indemnity costs. Nor is there any reason that the plaintiff should not pay the costs of Skystar at all or at a reduced rate of 35% for the following reasons:
1.The agency issue was not straightforward. There was only one single judge decision in Australia on point. The arguments raised at trial by the plaintiff were not without merit. The issue was one of statutory construction and consideration of a number of international authorities: see Qantas v Garnett [90] ‑ [135].
2.Further, the relationship between Qantas and Skystar was defined in the ground handling agreement[123] by the parties as one of principal and subcontractor. This remained an issue as between Qantas and Skystar until the first day of trial.
3.This cannot be said to be a hopeless case nor one where the plaintiff properly advised should have known he had no chance of success. The law in Australia at the time of trial cannot be properly characterised as being clearly established law. An order for indemnity costs from 24 September 2015 is not appropriate.
4.As to whether an indemnity costs order should be made from the date of the Calderbank offer on 18 May 2018, I am not satisfied that such an order is appropriate. The offer was made on 18 May, being the fifth day of trial after the majority of the evidence was heard. It was an offer that the plaintiff abandon his claim with each party to bear its own costs. I accept by that late stage of the trial the plaintiff was committed. The state of the evidence was such that its claim in negligence against Skystar had a sound evidentiary foundation, as is reflected in my findings on that issue. The agency issue remained arguable at that point which is reflected in the lengthy and complex closing submissions (both oral and written) made by the parties. For these reasons I decline to make an order for indemnity costs from 18 May 2018.
5.The plaintiff elected to pursue its argument on the agency issue at trial knowing that its negligence claim was contingent on the success of the argument as to agency. This is not a case where it has been partially successful against Skystar and therefore costs should be apportioned or reduced. I am satisfied that the appropriate order is the plaintiff pay the costs of Skystar to be taxed if not agreed.
[123] Clause 21.5, exhibit 22.14.
The final issue for determination is whether a Sanderson or Bullock order should be made. Such orders may be made where a plaintiff succeeds against one defendant, but fails against another defendant. The effect of such an order is that the costs of the successful defendant are paid directly or indirectly by the unsuccessful defendant. A Sanderson order is an order that the unsuccessful defendant pay the successful defendant's costs of the action: Sanderson v Blyth Theatre Co [1903] 2 KB 533. A Bullock order is an order that the unsuccessful defendant pays for the plaintiff's costs for which the plaintiff is liable to the successful defendant: Bullock v London General Omnibus Co [1904‑7] All ER Rep 44.
In Coastal Hire Pty Ltd v Ewers [2009] WASCA 36(S) the relevant principles were set out by Newnes JA with whom Wheeler and Buss JA agreed at [22] ‑ [34]. They were summarised at [34] as follows:
As I have observed, the court's discretion as to costs exists to enable the court to do justice between the parties in the particular circumstances of the case. In my view, therefore, where a Bullock or Sanderson order is sought ultimately the question must always be whether it is just that, as between the plaintiff and the unsuccessful defendant, the unsuccessful defendant should bear the burden of the successful defendant's costs. The exercise of the relevant discretion is not amenable to hard and fast rules, but, in my opinion, normally a Bullock or Sanderson order will be made only where:
1.the plaintiff's claims against two or more defendants are substantially connected or interdependent;
2.the plaintiff acted reasonably in suing the successful defendant; and
3.there is something in the conduct of the unsuccessful defendant which makes to just to move the burden of the successful defendant's costs from the plaintiff to the unsuccessful defendant.
For the reasons that follow I am not persuaded that a Bullock order or Sanderson order is appropriate in this case.
The plaintiff's claims against Karratha and Skystar were substantially connected. This is apparent from the issues and evidence led at trial.
As to whether the plaintiff acted reasonably in suing Skystar it argues that Qantas denied liability for the plaintiff's claim until the first day of trial under the CACLA. Further it denied Skystar was its agent for the purpose of s 33.
Further, the issue as to who had responsibility for the management and control of the area where the plinth was located was of critical importance to the outcome of the case, Karratha had from the outset denied legal responsibility to see that the plinth did not present a danger and sought to shift the level of responsibility to Qantas and Skystar. It argues that the plaintiff was in the position where he stood to be under compensated if the recovery of damages was limited to the maximum of $500,000 payable under the CACLA. It refers to the ground handling contract which defined the relationship between Qantas and Skystar as principal and subcontractor, it also points out that the argument that Skystar was not an agent had merit in view of the limited case law in Australia on the point. It argues that apart from the discovery of the ground handling agreement which defined the relationship between Skystar and Qantas the precise arrangements between those parties was not within the knowledge of the plaintiff and it would have been remiss of them not to have joined Skystar as a defendant to the action.
The focus of Karratha's submissions in opposition to Sanderson or Bullock orders being made focuses on the issue as to whether the plaintiff acted reasonably in suing Skystar, it argues that its solicitors had alerted the plaintiff's solicitors to the limitation period under the CACLA prior to proceedings being issued against Skystar on 5 October 2015. It refers to correspondence sent on 13 April 2015.[124] In that letter Mr Richards of SRB Legal said:
In relation to any involvement of Skystar Airport Services Pty Ltd, we advise that we are unable to assist with the provision of any documents as their contractual relationship was with Qantas (as the agent of Qantas), and not our client. We would however draw your attention to sections 33 and 34 of the Act as regards to any claim by your client against Skystar Airport Services Pty Ltd.
[124] CJB 14 letter SRB 2FLSD document number 15 of the affidavit of Christopher James Barkley sworn 27 August 2019.
Skystar argues that it warned the plaintiff of the limitation period and the plaintiff proceeded in spite of that warning and therefore no costs order should be made.
In relation to the conduct of Karratha the plaintiff outlines the pleadings and argues that Karratha maintained its denial of liability, occupancy and responsibility for the management and control of the plinth and asserted that liability for the plaintiff's damages claim rested with Qantas and/or Skystar throughout to the conclusion of the trial.
I am satisfied that the plaintiff acted reasonably in suing Skystar for the reasons I have already outlined at [51] – [53] hereof.
As to the unreasonableness of the conduct of Karratha there is nothing contained within the materials to suggest that Karratha did anything more than repeatedly state its client's position. It did nothing to induce the plaintiff to sue Skystar. To the contrary. It warned the plaintiff of the limitation period. I am not satisfied that there was any conduct on the part of Karratha which makes it just to remove the burden of Skystar's cost from the plaintiff to Karratha.
I propose to make the following orders. I will give the parties seven days liberty to apply in respect of the form of the proposed orders.
Proposed orders
I make the following orders:
1.There be judgment be entered for the plaintiff against the second defendant with damages to be assessed.
2.The second defendant pay the plaintiff's costs of the liability trial to be taxed if not agreed.
3.The plaintiff's claim against the third defendant be dismissed.
4.The plaintiff pay the costs of the third defendant to be taxed if not agreed.
5.The second defendant's contribution claim against the third defendant be dismissed.
6.The third defendant's contribution claim against the second defendant be dismissed.
7.The second defendant's counterclaim in the third defendant's contribution proceedings be dismissed.
8.There be judgment entered for the first defendant against the second defendant in the first third party proceedings with the assessment of damages and costs to be heard separately from and after determination of quantum in the main action.
9.Costs between the first defendant and the first third party (in relation to the first defendant's action against the first third party in the third party action) are reserved.
10.The parties to the main action and the third party action attend a mediation conference on the assessment of damages before a registrar on a date to be fixed.
11.The first third party's counterclaim against the first defendant in the third party action be dismissed.
12.The first third party pay the first defendant's costs of the first third party's counterclaim against the first defendant, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
7 NOVEMBER 2019
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