Mary Hanna v Singapore Airlines Ltd

[2007] NSWDC 288

Reported Decision: 6 DCLR (NSW) 214

District Court

CITATION:	Mary Hanna v Singapore Airlines Ltd [2007] NSWDC 288
HEARING DATE(S):	28 September 2007
EX TEMPORE JUDGMENT DATE:	28 September 2007
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Defendant's application granted; Action is dismissed; Plaintiff to pay defendant's costs; Exhibits to be returned
CATCHWORDS:	Plaintiff claimed she developed "deep venous thrombosis" as a result of flying between Sydney and Cairo commencing on 21 June 2005 - Condition was in fact pedal oedema - Plaintiff had booked a seat in a "front row" aisle leading to an emergency exit - At check-in, computer of carrier malfunctioned and this seat not allocated to her but a seat in the very back aisle - Further request for a seat in the desired aisle refused as plaintiff suffering from a disability - Seating allocation alleged to constitute "an unexpected event external to the passenger which occurred ... in the course of the operation of embarking the aircraft" - Proceedings dismissed under UCPR 13.4 - Civil Aviation Carriers Liability Act 1959 (Cth) - Civil Aviation Regulations 1988, reg 254 (Cth) - Warsaw Convention 1929, article 17 - Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 - McCarthy v Northwest Airlines Inc 56F 3d 313 (Int Cir 1995) - Povey v Qantas Airways Ltd (2005) 223 CLR 189 - Re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234 (CA) - Olympic Airways v Husain (2004) 540 US 644
LEGISLATION CITED:	Civil Aviation Carriers Liability Act 1959 (Cth)
CASES CITED:	Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 McCarthy v Northwest Airlines Inc 56F 3d 313 (Int Cir 1995) Povey v Qantas Airways Ltd (2005) 223 CLR 189 Re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234 (CA) Olympic Airways v Husain (2004) 540 US 644
PARTIES:	Mary Hanna (Plaintiff / Respondent) Singapore Airlines Ltd (Defendant / Applicant)
FILE NUMBER(S):	2541/07
COUNSEL:	D Elliott (Plaintiff / Respondent) J Hogan-Doran (Defendant / Applicant)

JUDGMENT

1 HIS HONOUR: This is an application by the defendant that proceedings be dismissed pursuant to r 13.4 on the grounds that the statement of claim discloses no reasonable cause of action.

2 The plaintiff had booked a return economy air ticket to travel from Sydney to Egypt with the defendant Singapore Airlines. At the time of making her booking, the plaintiff specifically requested a seat in the emergency aisle so that she could elevate her feet, as she suffered from a pre-existing medical condition. She was advised by her travel agent that such a seat was available to her. On or about 20 June 2005 the travel agent confirmed that the plaintiff was seated in the front row in an emergency aisle.

3 Paragraph 5 of the statement of claim is in these terms:

“On 21 June 2005 the plaintiff was due to fly out from Sydney. When she arrived at the airport and checked in she was told that there had been a computer failure and that the defendant was unable to allocate her a front row seat. Rather, she was allocated a seat in the very back row of the plane. Throughout the course of the flight to Singapore, and again on to Dubai, the plaintiff was seated in a cramped state and unable to elevate or stretch her legs out. There were only minimal opportunities to walk around. As a consequence, she sustained severe injury, loss and damage, particulars of which are set out in the accompanying statement of particulars.”

4 Paragraph 7 of the statement of claim alleges that the plaintiff’s injury, loss and damage were caused by the negligence of the defendant. The defendant is alleged to have been negligent in failing to allocate a front row seat to her in the emergency aisle; in failing to heed her complaints, both before and during the flight; and in failing to allocate an appropriate seat to her.

5 In connection with this application, the plaintiff has given evidence by way of affidavit. She has not been required for cross-examination. Paragraphs 8, 9 and 10 of her affidavit are in the following terms:

“On 21 June 2005 I arrived at the check-in desk at approximately 1.30pm with my daughter. My sister-in-law was about four people in front of me, checking in with her children. I heard my sister-in-law speaking to the employee behind the desk, saying words to the following effect:

‘I am travelling with five people altogether. My sister-in-law and her daughter are sitting at the front. Can we sit directly behind her?’

The employee behind the desk said words to the following effect:

‘Yes. That’s confirmed. You’ll be sitting behind them.’

I verily believe directly after the Singapore Airlines employee handed my sister-in-law the boarding pass the computer malfunctioned.

I verily believe the computers were down for approximately thirty minutes. There were a few people before my sister-in-law and myself. When it became my turn to check in, I was advised by the lady behind the desk that my seating and my daughter’s seating had changed. I said words to the following effect:

‘Why would you change my seats? My travel agent confirmed my seating details with you when I booked. Further, my sister-in-law just arranged to sit behind me.’

The employee questioned me about my hand luggage. I told her I have medication in there and need to carry the bag on board. The employee then said words to the following effect:

‘You are sick. You are not allowed to sit near the exit door.’

I was handed a boarding pass for myself and daughter, and then proceeded to the gate. Annexed hereto and marked with the letter B is a copy of my boarding pass.”

6 The plaintiff maintains that the conditions of her flight were governed by the Warsaw Convention and the Hague Protocol. The defendant maintains that the plaintiff’s flight was governed by the Warsaw Convention and the Hague Protocol as modified by the Montreal Number 4 Convention. It is not necessary to decide that issue on this application, as it is common ground that in either case Article 17 of the Warsaw Convention applies.

7 Article 17 is in the following terms:

“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.”

The plaintiff maintains that she was in the course of embarking when an accident befell her: namely, the malfunction of the computer, causing the loss of her previously booked seating allocation.

8 The question that arises, therefore, is what is meant by the terms “operations of embarking”, as used in the Convention.

9 The English word “bark” is now used poetically to describe either a large rowing boat or a small sailing ship. The precise meaning of the word “bark” is to refer to a specific type of sailing ship, one in which Captain Cook sailed. The full title of his vessel was, of course, His Majesty’s Bark Endeavour. When the new phenomenon of human flight occurred at the commencement of the 20th century, the aviation industry adopted many terms used in nautical parlance. To embark on a plane means the same as to embark on a ship. It is the process of going on board the ship or the process of going on board the aeroplane.

10 As Meagher AJ pointed out in Kotsambasis v Singapore Airlines Limited (1997) 42 NSWLR 110 at 119D, the Convention is to be construed “parsimoniously”. The American authorities also make the same point. In Kotsambasis, Meagher J approved the decision of the United States Court of Appeals for the First Circuit in McCarthy v Northwest Airlines Inc 56F 3d 313. In that case, the plaintiff and her sister left Boston on Northwest Airlines to go to the far east. They flew to Tokyo and stayed there for two days. They were then required to fly to Osaka, and thence to China. The sisters went to the airport at Tokyo and, as they had not yet obtained boarding passes, joined a queue that had formed at the Northwest ticket counter. When the two ladies reached the desk they expressed uncertainty as to whether there was sufficient time to enable them to board the plane. The plaintiff said that she and her sister told the ticket agent that they were prepared to take a later flight in order to avoid rushing. The ticket agent brushed aside their concerns, tagged their baggage, issued boarding passes, and led them “at a fast trot” in the general direction of the Customs area. The agent, who kept hold of their passports, tickets and boarding passes, led the sisters to an escalator accessible to the general public to go from one level of the terminal building to a lower level. As the plaintiff was following the ticket agent on the escalator, the escalator malfunctioned and the plaintiff fell and was injured.

11 The decision of the court was given by Selya J. Inter alia he said this:

“The single substantive issue presented in this appeal is whether the plaintiff was injured while ‘embarking’, within the meaning of Article 17. The Supreme Court has not yet had occasion to define the words ‘embarking’ or ‘disembarking’ in the context of Article 17. The court has generally read Article 17 parsimoniously. See eg Eastern Airlines Inc v Floyd (holding that Article 17 does not allow recovery for harm unaccompanied by some physical manifestation of injury); Air France v Saks (adopting restrictive definition of ‘accident’ for the purposes of Article 17). This restraint is entirely understandable as Article 17 provides for strict liability, and there are sound policy reasons to confine that liability to the letter of the text, narrowly construed.

...

The terms ‘embarking’ and ‘disembarking’ are not infinitely elastic, and we believe it is quite probable that, when the occasion to interpret those terms arises, the court will prove to be similarly restrained in defining them. cf Chan v Korean Airlines Limited (holding that article 3(2) deprives a carrier of the Warsaw Convention’s Article 3 damages limitation only if the carrier fails to deliver a ticket altogether).

Given the historical record and the signals that the Supreme Court has sent, most courts have interpreted the terms ‘embarking’ and ‘disembarking’ to connote a close, temporal and spatial relationship with the flight itself. In the process, these courts have found a three-pronged inquiry to be useful. The inquiry focuses on (1) the passenger’s activity at the time of the injury, (2) his or her whereabouts when injured, and (3) the extent to which the carrier was exercising control at the moment of injury. [His Honour then provided authority.]

We, too, have noted that such considerations are highly relevant in determining the applicability of Article 17. See Martinez Hernandez. We do not view the three factors, activity, location and control as separate legs of a stool, but, rather, as forming a single, unitary base. In the last analysis, the factors are inextricably intertwined. cf Evangelinos (observing that control ‘is an integral factor in evaluating both location and activity’).

What is more, the language of Article 17, which speaks to accidents that occur ‘in the course of any of the operations of embarking’, strongly suggests that there must be a tight time between an accident and the physical act of entering an aircraft. See Martinez Hernandez (concluding that the drafters of the Warsaw Convention understood embarking ‘as essentially the physical activity of entering’ an airplane); see also Evangelinos. This ‘tying’ concept informs location as well as activity. Consequently, for Article 17 to attach, the passenger must not only do something that, at the particular time, constitutes a necessary step in the boarding process, but also must do it in a place not too remote from the location at which he or she is slated actually to enter the designated aircraft. See Martinez Hernandez.

In applying these principles to the case at hand, we deem it useful to start by considering specific examples of accidents that have been found to come within the encincture of Article 17. Perhaps the most venturesome of the reported appellate decisions are Day and Evangelinos. When passengers had surrendered their tickets, passed through passport control, entered the area reserved exclusively for those about to depart on international flights, and queued up at the departure gate, a prerequisite to boarding, the Second Circuit ruled that they were engaged in performing a necessary step in the boarding process. Thus, Article 17 applied to an ensuing injury. See Day. Similarly, when passengers ‘had completed virtually all the activities required as a prerequisite to boarding, and were standing in line at the departure gate ready to proceed to the aircraft, at the time of the accident, the Third Circuit failing to have been engaged in a necessary step in the boarding process. See Evangelinos. Hence Article 17 applied.

The case at Bar is of significantly different genre. The plaintiff here, unlike the plaintiffs in Day and Evangelinos, had yet to fulfil most of the conditions precedent to boarding; at the time of the accident she had not left the common area of the terminal, located the bus that would transport her to the vicinity of her assigned aircraft, reached an area restricted to travellers nor isolated herself from the throng of other passengers flying to other destinations. In addition, the activity in which the plaintiff was engaged at the time of the injury - proceeding on an escalator from one level of the terminal’s common area to another - cannot in any sense be seen as comprising a necessary step in the boarding process. In both Evangelinos and Day the only way passengers could have entered the designated aircraft was to pass through the departure gate at which the injury occurred. See Evangelinos. In sharp contrast, the record in this case does not contain the slightest hint that the plaintiff could only have reached her assigned aircraft by taking the particular escalator from which she fell.

Last - but far from least - the accident here, unlike Evangelinos and Day, happened at a considerable distance from the departure gate and well before any actual departure was possible. In other words, plaintiff’s fall was far removed from the act of embarkation both temporarily and spaciously. Most importantly, it took place in a part of the terminal not restricted to passengers. We believe it is no mere happenstance that the plaintiff has not cited - and we have been unable to deter rate - a single instance at which Article 17 has been found to cover an accident that occurred within the public area of the terminal facility.”

Assuming the computer malfunction to be an accident, it occurred in the process of what is commonly known as checking in. It did not occur in the process of boarding the aircraft.

12 The argument of the plaintiff would require a very extended meaning to the words “operations of embarking”. A necessary feature to embarking is the purchase of the airline ticket. A necessary step in the process of embarking is to proceed to the airport from, presumably, one’s home or perhaps one’s place of employment.

13 On the same extended meaning of embarkation a necessary step is to either alight from a taxi cab at the airport or to park one’s motorcar in the parking area at the airport. One needs then to enter the terminal and then one needs to “check-in” at the check-in counter and bail one’s baggage to the airline and obtain a boarding pass. However, it is not unknown for people to check in to a flight but fail to board it.

14 Some of us have had the misfortune of embarking on an aeroplane only to be told that some half hour later to disembark as a person who had “checked in” had not boarded the aircraft but had checked in baggage. There was then the tedious and time consuming process of waiting in an airline lounge whilst all the baggage was unloaded from the aircraft, the baggage of the passenger who did not embark being identified and removed and then the plane then being repacked with baggage and the passengers then again invited to embark on the plane.

15 Furthermore, the process of checking in occurs in the area of the airport, and here one is considering Sydney Airport, that is open to all members of the public. Before one can actually board the aircraft, one must go to the barrier between the public area of the airport and the area restricted to passengers. One must then pass through Immigration control. One must then pass through security searches and then one enters an area common to the vast throng of all passengers flying out of the airport at that time on that day.

16 One must then pass through the inevitable shopping mall and find the lounge at the gate through which one will board one’s aircraft. One must often wait in the lounge until called to board the aircraft. On the authorities cited in McCarthy approved as it has been in this State by the Court of Appeal in Kotsambasis, it is only at the very final stage of that lengthy process that Article 17 is enlivened, when one is queued up to go through the gate.

17 Furthermore, as the Court of Appeals for First Circuit pointed out there is no authority with a proposition that the article is enlivened before one enters the area of the airport terminal restricted to passengers actually travelling on an airline on the day in question.

18 As in McCarthy learned counsel for the plaintiff could not cite to me any authority to suggest otherwise.

19 Furthermore, there is, as has been pointed out by learned counsel for the defendant, a fallacy in the argument.

20 It is clear from the affidavit of the plaintiff that she asked the clerk at the check-in counter as to whether she could sit in the aisle seat. When the clerk questioned her she pointed to her need for medication and the clerk then said words to the effect that as she was ill, she was not allowed to sit near the exit door. That would appear to be a deliberate decision of the clerk at the check-in counter.

21 The Civil Aviation Regulations 1988, regulation 254 provides this:

“(1) Unless CASA otherwise approves, this regulation applies to all passageways and exits in an aircraft that are for use by passengers or crew.

(2) When and aircraft is in flight, the pilot in command must ensure that all passageways and exits to which this regulation applies are kept free from obstruction.

Penalty: 10 penalty units.”

22 The plaintiff had, for a number of years before this flight, been under the care of Dr Elham Nashed of Merrylands. According to Dr Nashed the plaintiff had a long history of insulin dependent diabetes, hypertension, discopathy of the lumbar spine and anaemia.

23 The plaintiff was on a wide range of medications for her medical conditions. Because of her condition the plaintiff had been advised to elevate her feet whilst in flight in order to avoid or minimise peripheral oedema, that can be a problem and result in unwarranted complications. That was why the plaintiff wished to sit in the seat that she requested so that she could elevate her legs in order to minimise the risk of peripheral oedema. If she did elevate her legs she would have blocked the aisle to the emergency exit.

24 The actual injury sustained by the plaintiff was pedal oedema. That is a common result for a number of people, especially the overweight, when flying. This is what occurred to the plaintiff.

25 The whole flaw in the plaintiff’s case is that the plaintiff identifies a cause of her injury as being the computer malfunction. However, that is not how the word “accident” is to construed.

26 In the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ in Povey v Qantas Airways Limited (2005) 223 CLR 189, their Honours said, commencing at para 32:

“As was pointed out in SAKS, the Warsaw Convention was drafted in French by Continental Jurists. And as an international treaty, it will be wrong to read Montreal No 4 as if it reflected some particular cause of action or body of learning that is derived from say, the common law. It was said in SAKS that ‘The French legal meaning of the term ‘accident’ differs little from the meaning of the term in Great Britain, Germany, or the United States’. Both in French and in Anglo-American legal discourse (and, we would add, so too in Australian legal discourse) ‘accident’ may be used to refer to the event of a person’s injury or to the cause of injury. By contrast, ‘accidental’ is usually used to describe the cause of an injury rather than the event and is often used as the antonym to ‘intentional’.

In Article 17, ‘accident’ is used to refer to the event rather than the cause of injury. And the event as one which Article 17 requires to be located at a place (on board the aircraft) or otherwise to be fixed by reference to the circumstances of time and place (‘in the course of any of the operations of embarking or disembarking’).

Further, in understanding what is meant by ‘accident’, it is necessary to give proper weight to the way in which Article 17 relates three different concepts. Article 17 refers to ‘damage’, to ‘the death or wounding of a passenger or any other bodily injury suffered by a passenger’, and to ‘the accident which caused the damage so sustained’. The damage sustained is treated as being distinct from the accident which caused the damage, and both the accident and the damage are treated as distinct from the death, wounding or other personal injury. What that reveals is that the ‘accident’, in the sense of ‘an unfortunate event, a disaster, a mishap’, is not to be read as being sufficiently described as an adverse physiological consequence which the passenger has suffered. It may be accepted that its happening was not intended. In that sense, what is alleged to have happened may be described as ‘accidental’. But suffering DVT is not an accident. Rather, as the parties to this appeal accepted, ‘accident’ is a reference to something external to the passenger.”

27 The point I make at this time is that the computer malfunction, whilst it was accidental, did not cause the plaintiff’s medical condition. The medical condition was caused while she was physically on the aircraft in flight.

28 Furthermore, just as in DVT, the condition of pedal oedema is idiopathic, it is due to an internal problem in the human body and is not caused by some external event that is a disaster or mishap. It is a natural human reaction in some people to the effects of flying. That the authorities makes clear does not constitute an accident.

29 Whilst counsel seem to have thought that what the plaintiff had in the current case as DVT, it was not, but the same principles that apply to DVT apply to pedal oedema. Therefore the reasoning process adopted by the High Court of Australia in Povey is applicable, just as it was applicable in the decision of the English Court of Appeal in Re Deep Vein Thrombosis and Air Travel Group Litigation [2004] QB 234.

30 The remaining aspect of the plaintiff’s allegation is the allegation contained in the “Particulars of Negligence”, even though negligence need not be proven, of a complaint made by the plaintiff during the flight.

31 In paragraph 11 of the plaintiff’s affidavit the following material appears:

“When the plane departed Sydney Airport I spoke to one of the cabin crew members and told him I was booked to sit at the front. The man said words to the following effect:

‘I am really sorry but I can’t help you. I will see if I can place you and your daughter at the front of the flight from Singapore to Egypt’.”

32 In paragraph 12 of the plaintiff’s affidavit she said that on the flight from Sydney to Singapore her feet “immediately began to swell, turn red and were very painful”.

33 It is not alleged by the plaintiff that she drew to the cabin attendant’s attention the fact that she was suffering from a medical condition which required her to elevate her feet. In that regard, one can distinguish the case of Olympic Airways v Husain (2004) 540 US 644, a decision of the Supreme Court of the United States of America.

34 While the plaintiff and her husband were travelling overseas the plaintiff requested Olympic Airways to provide seats away from the smoking section of the aeroplane because her husband had asthma and was sensitive to second hand smoke. After boarding the plane, the plaintiff and her husband discovered that their seats were only three rows in front of the smoking section. A flight attendant refused the plaintiff’s three requests to move her husband. As the smoking noticeably increased, the plaintiff’s husband walked toward the front of the aeroplane to get fresher air. He then received medical assistance but he died.

35 The trial court had found that the flight attendant’s refusal to re-seat the plaintiff’s husband was clearly external to him and unexpected and unusual in light of industry standards, Olympic policy and the simple nature of the requested accommodation.

36 The appeal to the Supreme Court was dismissed. It was accepted that the flight attendant’s refusal on three separate occasions to move the plaintiff’s husband was a factual event that the trial court correctly found to be a link in the chain of causes leading to his death.

37 It is significant that in that case the initial failure of the airline to seat the plaintiff’s husband further away from the smoking section than he was actually placed in was not alleged to be a relevant accident. However, the repeated failure of the flight attendant on the flight was held to be a relevant accident. However, in that regard, the trial court had taken into account that the flight attendant’s behaviour was unexpected and unusual in light not only of industry standards but of the airline’s own policy.

38 Here, to have placed the plaintiff in the aisle row so that she could elevate her legs, would have blocked the aisle and would have been contrary to the Civil Aviation Regulation which I have already cited. In those circumstances, the decision of Olympic Airways v Husain can be and ought be distinguished.

39 In my view, the cause of action alleged is not reasonable. The pleading discloses no reasonable cause of action and the cause of action is dismissed.

40 Are you asking for costs, I suppose?

HOGAN-DORAN: We are, your Honour. Just one thing, your Honour has referred to the statement of claim throughout the course of your ex tempore judgment. Of course, there is also an amended statement of claim which it does substantially distinctly clarifies and narrows what’s said in the statement of claim.

HIS HONOUR: Why didn’t somebody tell me?

HOGAN-DORAN: It certainly contains an alternative formulation of the case. I don’t have an amended statement of claim. There’s none on file.

ELLIOTT: I handed it to your Honour very early in the proceedings, sought leave to file it in court. Your Honour’s already touched on it in part by referring to the fact that the plaintiff now describes it as a deep vein thrombosis which is in paragraph 7 and the particulars of accident are set out in paragraph 8 and are substantially a reflection of what your Honour’s already referred to in the affidavit of the plaintiff.

41 HIS HONOUR: It has now been drawn to my attention that earlier this morning the plaintiff sought leave to file in court an amended statement of claim. The amended statement of claim is radically different to the original pleading. In paragraph 7 of the amended statement of claim is alleged that on 21 June 2005 the plaintiff suffered a “deep vein thrombosis”. As I have sought to point out, that is not true. All the evidence discloses is pedal oedema.

42 In paragraph 8 it is alleged that the deep venous thrombosis constituted “a bodily injury [that] arose through an accident”. The particulars of accident alleged are these:

“The plaintiff on booking her flight requested and was informed that she had in fact been allocated, a seat in the front row of the seating block which would allow her to have her feet raised and would allow her to mobilise at will. This was requested because of her pre-existing medical condition. On arrival and check-in she was allocated another seat further back which prevented her from raising her feet and mobilising at will. Such misallocation of seating constituted an unexpected event external to the passenger which occurred on board or in the course of operation of embarking the aircraft.”

43 The allegation of negligence and the particulars of negligence contained in the original pleading have been deleted. However, the amended pleading makes no difference to the ruling which I have already indicated I ought and would make.

44 The “misallocation” is again alleged to have been when the plaintiff checked in at the check-in counter. Furthermore, the allegation of a complaint on board the aircraft with a failure to comply with it by a flight attendant is no longer agitated, so that it was eventually unnecessary for me to distinguish the case of Olympic Airways v Husain.

45 For those reasons, therefore, I find that the amended statement of claim discloses no reasonable cause of action and the action is dismissed.

[SUBMISSION RE COSTS]

46 I order the plaintiff to pay the defendant’s costs.

47 Exhibits to be returned.