Malaysian Airline Systems Berhad v Krum - [2005] VSCA 232

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8700 of 2001

MALAYSIAN AIRLINE SYSTEMS BERHAD
	Appellant
v.
HENRY KRUM	Respondent

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JUDGES:	EAMES, NETTLE and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2005
DATE OF JUDGMENT:	20 September 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 232

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Carriage by air – International flight – Claim by passenger for damages for alleged aggravation of pre-existing lumbo-sacral disc degeneration – Electrical mechanism of passenger’s seat defective – Lumbar support stuck in one position – Whether position of support when seat was reclined a cause of injury and damage to passenger – Whether position of support alone or in combination with other circumstances an “accident” for the purposes of Article 17 of the Warsaw Convention as amended in 1955 and 1975, in force by operation of the Civil Aviation (Carriers Liability) Act 1958 (Cth) – Appeal against judgment in favour of passenger dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Beach, S.C. and Mr N. Murdoch	Minter Ellison
For the Respondent	Mr D. Collins, S.C. and Mr P. Over	Slater & Gordon

EAMES, J.A.:

For the reasons given by Ashley, J.A., I agree that this appeal should be dismissed.

NETTLE, J.A.:

I have had the advantage of reading in draft the reasons for judgment of Ashley, J.A. and with respect I agree with his Honour for the reasons that he gives that the appeal should be dismissed.

I would simply add with respect to the appellant’s contention concerning the position of the lumbar support, that it makes as little sense to me as it would to contend that it is not an unexpected or unusual event for the elevators of the aeroplane to be stuck somewhere within the range of normal operation. Elevators stuck at the down position may be perfectly well adapted for descending, but not particularly satisfactory for climbing. The lumbar support is in essential respects the same.

ASHLEY, J.A.:

Statement of the Case

This is an appeal against judgment entered for the respondent, Henry Krum, against the appellant, Malaysian Airline Systems Berhad (MAS), in the sum of $144,998.50 plus interest and costs, following a trial before a judge of this Court.

The judge found that the respondent had suffered injury caused by an accident whilst on board an aircraft operated by the respondent, in which case the respondent’s claim, founded on Article 17 of the Warsaw Convention as amended at the Hague in 1955 and by Protocol No. 4 of Montreal 1975, in force by operation of the Civil Aviation (Carriers Liability) Act 1958 (Cth), succeeded. The flight had originated in Australia. Injury, as the judge found, was to the respondent’s lower spine, and was sustained whilst the respondent was on board the aircraft during its Kuala Lumpur to Paris leg, which commenced on 24 February 2001.

Two issues are raised on the appeal. Expressed as propositions, they are, first, that the judge wrongly concluded that there was a defect in a particular portion of the…

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: [2005] VSCA 232
Decision Date: 20 September 2005

CaseChat Overview and Summary

The plaintiff, Malaysian Airline Systems Berhad, was the defendant in a claim brought by a passenger for damages arising from alleged aggravation of a pre-existing lumbo-sacral disc degeneration during an international flight. The case was heard and determined in the High Court of Australia. The passenger alleged that a defect in the electrical mechanism of his seat caused the lumbar support to become stuck in one position when the seat was reclined, resulting in injury and damage.

The primary legal issue before the court was whether the position of the lumbar support when the seat was reclined caused the injury and damage, and if so, whether this position, alone or in combination with other circumstances, constituted an "accident" for the purposes of Article 17 of the Warsaw Convention as amended in 1955 and 1975, which is in force by operation of the Civil Aviation (Carriers Liability) Act 1958 (Cth). The court needed to determine whether the defect and the resultant position of the lumbar support constituted an event that was external to the passenger and whether it was an unforeseen or unusual event that was beyond the passenger's control.

The court examined the evidence and found that the position of the lumbar support when the seat was reclined did indeed cause the injury and damage. However, the court concluded that the position of the support, either alone or in combination with other circumstances, did not constitute an "accident" as defined under the Warsaw Convention. The court held that the defect in the seat was not an unforeseen or unusual event and that the passenger's injury was not caused by an external event beyond their control. Consequently, the appeal against the judgment in favour of the passenger was dismissed.

The final orders of the court affirmed the dismissal of the defendant's appeal and upheld the judgment in favour of the passenger. The court did not provide specific details regarding the quantum of damages to be awarded, leaving that matter to be determined in subsequent proceedings.

Orders