Krum v Malaysian Airline System Bhd - [2004] VSC 185

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 8700 of 2001

KRUM	Plaintiff
v
MALAYSIAN AIRLINE SYSTEM BERHAD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28-29 APRIL and 3-6 MAY 2004
DATE OF JUDGMENT:	27 MAY 2004
CASE MAY BE CITED AS:	KRUM v MALAYSIAN AIRLINE SYSTEM BERHAD
MEDIUM NEUTRAL CITATION:	[2004] VSC 185

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Warsaw Convention Article 17 – ‘Accident’ – Unexpected event - External circumstances - Aeroplane flight – Defective seat – Bodily injury – Sciatica

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Collins SC with Mr P. Over	Slater & Gordon
For the Defendant	Mr J. Langmead SC with Mr N. Murdoch	Minter Ellison

HIS HONOUR:

The plaintiff in this matter claims damages for injury to his back which he alleges was sustained while he was a passenger on Flight MH20 from Kuala Lumpur to Paris on 24 February 2001 ("the flight").

The flight was conducted by the defendant as part of a regular service using Boeing 747 jet aircraft.

The plaintiff departed Melbourne at 4.00 p.m. and after then flying to Kuala Lumpur departed on the next leg of his journey at the equivalent of 2.00 a.m. Melbourne time that evening. At the time of embarkation he had been awake for some 17 hours.

The plaintiff's case is that when he entered the first class cabin of the aircraft at Kuala Lumpur, he was not escorted to his seat by cabin staff but proceeded on his own to seat 2H, which was the seat which he had been allocated.

Upon approaching that seat he found it occupied. He then asked a steward what he should do and was invited to sit in one of two vacant seats 2A and 2C adjacent to but across the aisle from seat 2H.

This he did and after approximately one hour during which period he consumed some light refreshments and a small dose of temazapam, he attempted to recline his seat in order to go to sleep.

When he did so the automatic seat control failed to operate. He drew this situation to the attention of a steward who then located a lever upon the side of the seat which allowed the seat to be reclined either by the steward or by the plaintiff personally (the plaintiff is not certain which occurred).

The upper portion of the seat was then lowered to the fully reclined position.

In this position the seat was not completely horizontal but formed a base upon which a passenger could sleep with the upper portion of the seat angled back from the lower portion of the seat at approximately 160 degrees.

The upper portion of the seat contained a lumbar support being a six inch by six inch fibreglass composite square which was located behind one inch of front padding within the seat. This support was in normal circumstances capable of manipulation to either protrude forwards towards the passenger or be retracted back away…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 185
Decision Date: 27 May 2004

CaseChat Overview and Summary

The plaintiff, Krum, commenced proceedings in the Federal Court of Australia against Malaysian Airline System Bhd, the defendant, seeking damages for injuries sustained during a flight. The incident occurred when Krum’s seat reclined unexpectedly, causing her to strike her head on the seat in front, resulting in a serious injury diagnosed as sciatica. The case hinged on whether the incident constituted an 'accident' under Article 17 of the Warsaw Convention, which governs the airline’s liability for passenger injuries.

The central legal issue before the Court was whether the unexpected reclining of the seat constituted an 'accident' within the meaning of Article 17 of the Warsaw Convention. The Court had to determine if the injury was caused by an external circumstance, and whether the defect in the seat could be considered an unforeseen event. The Court also needed to assess the applicability of the Warsaw Convention to the circumstances of the case, specifically whether the airline’s liability was excluded or limited.

The Court found that the unexpected reclining of the seat, due to its defective mechanism, was an external circumstance unforeseen by the passenger. It constituted an accident as it resulted in bodily injury. The Court held that the Warsaw Convention applied, but the airline’s liability was not excluded by the limitations set out in the Convention. The Court emphasised that the term 'accident' should be interpreted broadly to include any unexpected event causing injury, and that the Warsaw Convention’s protections should be available to passengers in such circumstances. The Court concluded that the airline was liable for the injury sustained by the plaintiff and ordered the defendant to pay damages to the plaintiff.

Orders