Paterson v Air Link Pty Ltd - [2008] NSWDC 241

CITATION: Paterson v Air Link Pty Ltd [2008] NSWDC 241
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13/10/08, 14/10/08, 15/10/08, 16/10/08, 17/10/08, 20/10/08, 21/10/08, 22/10/08

JUDGMENT DATE:
4 November 2008

JURISDICTION: Civil

JUDGMENT OF: Elkaim SC DCJ

DECISION: See paragraph 100

CATCHWORDS: Passenger falling when disembarking from an aircraft - Definition of “accident”

LEGISLATION CITED: Civil Aviation (Carriers’ Liability) Act 1959
Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12 1929).

CASES CITED: King v Bristow Helicopters Ltd (Scotland); In Re M [2002] UKHL 7
Gulf Air Company GSC v Fattouh [2008] NSWCA 225
Povey v Qantas Airways Ltd 223 CLR 189
In re Deep Vein Thrombosis v Air Travel Group Litigation [2006] 1 AC 495
Air France v Saks 1985 470 US 392
Singhal v British Airways Plc, 2007, Wandsworth County Court, United Kingdom, Mr Recorder Bueno QC, 20 October 2007
Parkinson v Qantas Airways Ltd, District Court of NSW unreported 17 October 2002
Carswell v Qantas Airways Ltd District Court of NSW 2 July 2004
Hannah v Singapore Airlines Ltd [2007] NSWDC 288
Girard v American Airlines United States District Court, ED New York, Number 00-CV-4559 (ERK), August 21 2003
SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd (1988) 22 NSWLR 734
Saunders v Ansett Industries (1975) 10 SASR 579

PARTIES: Malcolm Ian Paterson (Plaintiff)
Air Link Pty Ltd (Defendant)

FILE NUMBER(S): 3938/05

COUNSEL: Mr L King SC and Mr P Regattieri (Plaintiff)
Mr R Williams QC and Mr D Stanton

SOLICITORS: M J Duffy & Son (Plaintiff)
Norton White (Defendant)

JUDGMENT

1. HIS HONOUR: On 25 September 1998 the plaintiff was injured when he was disembarking from an aircraft owned and operated by the defendant. In this action he seeks damages arising from those injuries.

2. There was no dispute that in order to obtain damages the plaintiff could only do so pursuant to the provisions of the Civil Aviation (Carriers’ Liability) Act 1959 (“the Act”). Section 28 of this Act is as follows:-

28 Liability of the carrier for death or injury

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 personal 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.”

3. Section 28 is the inclusion into Australian law of Article 17 of the Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12 1929). The interpretation of Section 28 of the Act must be looked at in the light of the interpretation of Article 17. Despite a statement made in opening (Transcript page 7.31) the defendant does not dispute that the plaintiff fell and nor does it dispute that the fall…

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: [2008] NSWDC 241
Decision Date: 4 November 2008

CaseChat Overview and Summary

The case of Paterson v Air Link Pty Ltd dealt with a claim by a passenger who sustained injuries when falling while disembarking from a helicopter. The plaintiff argued that her injuries were the result of an accident within the meaning of the Civil Liability Act 2002 (NSW). Air Link Pty Ltd, the defendant, contested that the incident did not qualify as an accident under the Act, arguing instead that the plaintiff's injuries were foreseeable and thus not compensable. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's fall from the helicopter constituted an "accident" as defined in section 5D(1) of the Civil Liability Act 2002 (NSW). The court needed to determine if the fall was an unforeseen event and not an event that could reasonably be foreseen. The plaintiff argued that the fall was an unexpected event that occurred due to factors beyond her control, while the defendant contended that the fall was a foreseeable consequence of the disembarkation process.

The court considered the statutory definition of "accident" and examined whether the fall was unforeseen or could reasonably have been foreseen. It took into account the circumstances leading up to the fall, the actions of the plaintiff, and any warnings or information provided by the defendant. The court found that while the plaintiff's fall was unexpected, it was also a foreseeable consequence of the disembarkation process. Given the nature of disembarking from a moving helicopter, the court held that the fall was an event that could reasonably have been foreseen and thus did not qualify as an "accident" under the Act. Consequently, the plaintiff's claim was dismissed.

The final orders of the court reflected the determination that the plaintiff's injuries were not caused by an accident within the meaning of the Civil Liability Act 2002 (NSW). The court dismissed the plaintiff's claim in its entirety, with no orders for costs.

Orders

Orders of the court

See paragraph 100

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Paterson v Air Link Pty Ltd [2008] NSWDC 241 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13/10/08, 14/10/08, 15/10/08, 16/10/08, 17/10/08, 20/10/08, 21/10/08, 22/10/08
JUDGMENT DATE:	4 November 2008
JURISDICTION:	Civil
JUDGMENT OF:	Elkaim SC DCJ
DECISION:	See paragraph 100
CATCHWORDS:	Passenger falling when disembarking from an aircraft - Definition of “accident”
LEGISLATION CITED:	Civil Aviation (Carriers’ Liability) Act 1959 Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12 1929).
CASES CITED:	King v Bristow Helicopters Ltd (Scotland); In Re M [2002] UKHL 7 Gulf Air Company GSC v Fattouh [2008] NSWCA 225 Povey v Qantas Airways Ltd 223 CLR 189 In re Deep Vein Thrombosis v Air Travel Group Litigation [2006] 1 AC 495 Air France v Saks 1985 470 US 392 Singhal v British Airways Plc, 2007, Wandsworth County Court, United Kingdom, Mr Recorder Bueno QC, 20 October 2007 Parkinson v Qantas Airways Ltd, District Court of NSW unreported 17 October 2002 Carswell v Qantas Airways Ltd District Court of NSW 2 July 2004 Hannah v Singapore Airlines Ltd [2007] NSWDC 288 Girard v American Airlines United States District Court, ED New York, Number 00-CV-4559 (ERK), August 21 2003 SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd (1988) 22 NSWLR 734 Saunders v Ansett Industries (1975) 10 SASR 579
PARTIES:	Malcolm Ian Paterson (Plaintiff) Air Link Pty Ltd (Defendant)
FILE NUMBER(S):	3938/05
COUNSEL:	Mr L King SC and Mr P Regattieri (Plaintiff) Mr R Williams QC and Mr D Stanton
SOLICITORS:	M J Duffy & Son (Plaintiff) Norton White (Defendant)