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
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- Case
- [2019] WADC 89
- Decision Date
CaseChat Overview and Summary
The court examined the principles of negligence, focusing on the foreseeability of the risk and the reasonableness of the response to it. It considered that while uneven surfaces and differences in level might be accepted in some contexts, certain dangers, like the protruding plinth, could constitute a 'trap'. The court found that the risk of tripping on the plinth was foreseeable and not insignificant, particularly considering the plaintiff's distracted state. The court held that Qantas had a duty to warn passengers of the risk, which it failed to do. In assessing Qantas' liability, the court found that the airline was not vicariously liable for the breach, as the employee who was responsible for ensuring the safety of disembarking passengers was not acting within the scope of their employment at the time of the accident.
In conclusion, the court found that Qantas breached its duty of care to the plaintiff by failing to warn her of the risk posed by the plinth. The plaintiff's contributory negligence was taken into account, but it did not absolve Qantas of liability. The court ordered Qantas to pay damages to the plaintiff, reflecting both the severity of her injuries and her contributory fault. The judgment underscores the importance of carriers taking reasonable precautions to ensure passenger safety, particularly in relation to foreseeable risks that could result in significant harm.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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.