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 occurred “in the course of any of the operations of … disembarking”. The defendant also does not dispute that the plaintiff was injured, although it does strongly dispute the severity and nature of the injuries. The major issue litigated before me was whether the plaintiff’s injury, whatever it was, resulted from an “accident”.

4. If the plaintiff did suffer an accident within the meaning of the Act he does not need to prove negligence on the part of the defendant. Liability is strict, but damages are limited to $500,000. The defendant is however entitled to allege contributory negligence (Section 39). Historically the participants to the Warsaw Convention decided that passengers should be protected in respect of injuries they suffered in the course of air transport but airlines, the industry then being in its infancy, were also entitled to a degree of protection and this is reflected by the limit on damages.

5. The task faced by the plaintiff in order to succeed I think was precisely put in the House of Lords in King v Bristow Helicopters Ltd (Scotland); In Re M [2002] UKHL 7, at paragraph 70, as follows:-

“70. The wording of article 17 indicates that three things must be established in order to demonstrate that the carrier is liable. The first is that the passenger must have sustained death or wounding or other bodily injury. The second is that there must have been an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking. The third is that the passenger’s death, wounding or bodily injury must have been caused by the accident.”

6. The first of these requirements, subject to extent, is conceded. The contest is about the second requirement, in particular was there an “accident”. If an “accident” is established then the third step was conceded, again subject to the extent of the injury.

7. Damages sought here by the plaintiff fall under the following heads:-

(b) Economic loss, again both past and future.

(c) Medical expenses.

8. The defendant says that general damages will be minimal because on its case the plaintiff’s injury was essentially minor and of short duration. In relation to economic loss the defendant says damages will necessarily be limited because of the small size of the injury. Further, if it is wrong on that point, the defendant says that the plaintiff has failed to prove that the economic loss he asserts was caused by the injuries he suffered. It also says that I should not accept the quantum of the economic loss claimed.

9. The plaintiff says that he suffered a significant injury, in particular to his left knee, which led to surgery and which caused a substantial interference, for a period, with his capacity to produce income. The plaintiff’s claim well exceeds $500,000 but he accepts that he can recover no more than this sum under the Act. There is an issue as to whether any interest that may be allowed may be awarded in excess of the $500,000 limit.

The Plaintiff’s Background

10. The plaintiff was born on 21 May 1948. He completed his schooling in Melbourne and then attended Monash University where he studied Mechanical Engineering. He did not complete his degree at this institution but moved to the Swinburne Institute of Technology where he graduated with a qualification in engineering in 1972. He was employed as a cadet engineer and then as a graduate engineer by Conzinc Rio Tinto Australia where he remained for about nine years. During this time he became a member of the Institute of Engineers Australia Professional Engineers (Mechanical). From 1982 until 1988 he was employed in a mechanical engineering capacity by a variety of companies.

11. On 29 April 1988 he incorporated a company called Eng Pac Pty Ltd which became the vehicle for his future financial enterprises. The type of business that he put into effect was as a consultant to various companies for the servicing and repair of their machinery. This was described as an asset maintenance business. The plaintiff’s “break” appears to have occurred in 1992 when he was engaged by BHP to, as I understand it, head a maintenance team involved in various projects. He was required to travel extensively. In 1995 the plaintiff began working as a maintenance manager and consultant for a mining company called Peak Goldmines. In 1996 and 1997 he did work for BHP in Indonesia and after that he was involved in work in Namibia which involved travelling to South Africa. The latter trip is of some significance because of an incident which occurred in March 1997. I will return to it below.

The Fall

12. The plaintiff is a tall man, about 182cm, and over the years has endured a weight problem. In 1998 he seems to have weighed somewhere either side of 125kg. The fall was on 25 September 1998. This was a Friday. For the working week before this Friday the plaintiff had been in Cobar conducting a workshop and seminar on safety procedures. He was then living, as he does now, in Queensland. In order to return home it was necessary for the plaintiff to fly from Cobar to Dubbo, then take a connecting flight to Sydney and then a further connecting flight to Queensland.

13. The flight from Cobar to Dubbo was operated by the defendant using a Piper Navajo Chieftain aircraft (“a Chieftain”). The flight number was ZL648 and the aircraft departed Cobar at 3.55pm. The flight time to Dubbo was a little less than an hour. According to Exhibit 9 there were seven passengers on board. There is some inconsistency between Exhibit 9 and the evidence of Mr Molina about the number of passengers. Without in any way reflecting on Mr Molina’s credit, because I found him to be a very impressive witness, on this aspect I prefer the contemporaneous note prepared by the pilot. The pilot was a Mr Kelly who was not called to give evidence. It emerged that he has left the employ of the defendant and is now a police officer. If that evidence was led as a reason for his not giving evidence I do not accept that it achieves that purpose. The same may be said in respect of the evidence of a Mr Egan who was the ground assistant employed by the defendant at Dubbo Airport. The evidence was that he would now be 71 years old. I do not regard that fact as justifying his failure to attend. Mr Kelly and Mr Egan are clearly in the defendant’s ‘camp’ and I draw an inference that their evidence would not have assisted the defendant. Both of these witnesses were employed by the defendant and both of them were in a position where they may have seen what happened to the plaintiff. The defendant’s approach to the facts was, as stated by the defendant’s senior counsel, to put the plaintiff to proof rather than to lead a contrary version (Transcript at page 132.1).

14. Returning to the events of the day, according to the plaintiff, when the Chieftain touched down at Dubbo the connection to Sydney was “tight”. In fact, he said that the departing aircraft was already on the tarmac. The plaintiff had travelled to and from Dubbo on a number of previous occasions and he said that on this occasion the Chieftain stopped in a different location to that where it had previously parked. He said it was closer to the back of the tarmac and about three or four metres from its usual spot. The plaintiff had been seated at the rear of the aircraft. He said that once the aircraft had stopped, and presumably the propellers had been halted, a ground attendant placed a step below the exit to the aircraft. Rather than describe the set up it is more clearly shown in Exhibit A where the aluminium step can be seen below the internal aircraft steps. The plaintiff said he was first off the plane and he could not remember which was his leading foot as he descended onto the portable step. There was then this passage of evidence:-

Q. Do you recall putting your foot on the portable step?

A. I remember touching the - putting my foot onto the step and next finding myself on the ground.

Q. Do you remember the transfer of your weight, your weight going onto the step? If you don't remember this detail just say so.
A. Not really. I don't remember that part. It happened so quickly.

Q. Do you remember any particular movement of the step? Do you remember it moving?
A. Yes, the step moved.

Q. In what way do you remember it moving?
A. It flipped from underneath me.

Q. What happened to you then?
A. I went down onto the ground and landed on all four trying to protect my back.
Q. Did you feel contact with the tarmac on any parts of your body?
A. I felt it on my knees and on my hands.” (Transcript page 25)

15. The plaintiff initially said that when he descended the aircraft he had a laptop bag slung over his shoulder. It later emerged in evidence he may also have had a bag containing clothing with him. I do not think it matters much exactly what luggage the plaintiff had with him when he descended the stairs other than, perhaps, as an example of his uncertain memory. There is no suggestion that the fall was caused by the plaintiff being laden with luggage.

16. The plaintiff said that he was very embarrassed and accordingly got up very quickly. He was asked if anyone had helped him to get up and said that he did not remember any assistance nor did he remember speaking to anybody on the tarmac. He said he brushed himself off and went into the terminal where he immediately saw an Air Link pilot who he knew as Mr Ned Worthington. He had flown with him previously and also knew his wife. He approached Mr Worthington and said “I went a gutza and I think that it is still unstable”. He was referring there to the step being unstable rather than any condition of his body. According to the plaintiff Mr Worthington referred him to Mr David Miller, the “owner” of the defendant company. Mr Worthington then went out onto the tarmac. The plaintiff said he had the impression that Mr Worthington was busy at the time. The defendant tendered a statement from Mr Worthington which is undated but I gather was made during the course of the hearing. I was informed that Mr Worthington was due to have an operation. The parties agreed on his statement going into evidence. It is behind Guidecard 1.1 in Exhibit 8. According to the statement Mr Worthington says he does not remember the plaintiff nor does he remember any person speaking to him at Dubbo Airport on 25 September 2008, or at any other time, about an incident as described by the plaintiff. Mr Worthington says in his statement that he first heard of the incident when approached in July 2007. Having regard to the fact that nine years had passed since the incident and that it was not a matter of any great moment to Mr Worthington, I am not surprised that he has no recollection of the conversation. I accept the plaintiff’s evidence that he spoke to a person that he identified as an Air Link pilot by the name of Ned Worthington.

17. The plaintiff said that he was shaken and shocked but able to continue his journey which involved the flight to Sydney and then the separate flight to Queensland. He said that the following morning he contacted, by telephone, Mr Miller and “related to him of the fall I had and that I had some abrasions on the hands and watch and a few other things. Basically I was a bit shaken up. But I was concerned about the safety of this stand …” (Transcript 28.37). The plaintiff said he suggested to Mr Miller that he could design a better step and he also told him that he thought his injuries would be OK. Mr Miller responded that he was going to investigate the incident and get back to the plaintiff. He never did so.

18. Mr Miller gave evidence and provided a different version of the conversation, as follows:-

“Q. Could you tell us about that phone call, did someone ring and introduce themselves to you?

A. Yes, a Mr Paterson rang me. I recall I was at home when I received the call. The caller introduced himself as - and said, "You may recall me, I travelled with you to Cobar earlier in the week, I can't recall exactly which day". I did remember the gentleman as he sat only one row behind me on an outbound flight to Cobar and he said, "I'm ringing as a - I'm just ringing as a courtesy call to let you know that I've - I slipped while disembarking your aircraft at Dubbo".

Q. What did you say?
A. I asked him - I said, how did you do that, and he said to me that he slipped.
Q. Did you ask him any other questions?
A. I said to him, "Are you hurt?" and he said no, there may be some bruising but he said, "because I met you I felt that I should let you know as there were other passengers on the aircraft from the goldmine that may be questioning your safety standards".” (Transcript page 272.14).

19. Under cross examination Mr Miller, ultimately, said that he had refreshed his memory from a document dated in 2006. In relation to the presence of mining personnel on the flight, Mr Miller agreed:-

“…that what Mr Paterson was really endeavouring to convey to you was that because the air route from Dubbo to Cobar and back, serviced by your company, was regularly used by mining personnel, he thought it was important that you know he'd had a fall because it would be good for your company to be in a position to make sure that didn't happen involving any mining personal; do you accept that that was what he was driving at?”

I do not think much turns on the issue but I probably prefer the plaintiff’s version of the conversation in particular as other evidence led by the defendant was to the effect that there were no mining company personnel on board. There was no suggestion made by the defendant that the plaintiff’s description of his injuries to Mr Miller amounted to an admission about their lack of severity.

20. Mr Dario Molina is now aged 34. In 1998 he worked for Pricewaterhouse Coopers as a Senior Accountant. He had been working in Cobar and was on the same flight as the plaintiff on 25 September 1998. His recollection was that beside himself, the plaintiff and the pilot there were also two other colleagues from Pricewaterhouse Coopers on the aircraft. He effectively conceded in cross examination that there may have been seven passengers in all on board.

21. Mr Molina said he was also travelling onto Sydney and didn’t think there was much time between flights. I note here that there was no evidence to suggest that the flight to Dubbo from Cobar was behind schedule nor was there any suggestion that passengers would miss their connection to Sydney. Mr Molina said that the aircraft parked about 200 metres from the terminal, which seems a considerable distance, but I was not given any measurements or general description of the apron at Dubbo Airport. He was asked what happened when the aircraft came to a stop at Dubbo. He answered:-

“A. We came to a halt, parked, he got out of the plane, the pilot, he told us to wait for a little while, while he got a step because when you actually pull the door down I recall that there was quite a large step down onto the tarmac so as it happened Mr Paterson got off the plane, I was actually in the seat but you could see out and I could see that there was a chap coming with a metal step with I guess some cross markings, an aluminium step, quite a shiny one, came over, gave it to the pilot, and the pilot placed it down, so I can see it as he is placing it down, placed it down there and we started or were allowed to start to disembark. Mr Paterson was hop off the plane first, I was then behind him, at the doorway, I could see that his stepping down and he then all of a sudden tumbled forward or fell forward and landed on his knees and hands, he was basically on all fours.”

22. In relation to the step the witness gave this evidence:-

“Q. As you watched him go down, did you see this step at the foot of the stairs which were part of the doorway of the plane?

A. Yes, when he actually had the step down and when he fell over, the step was like rolling forward, so there was movement in that step.

Q. What I am asking you to say whether you saw it or not is did you see the step as he was going down and as he stepped off, or are you saying that you saw him step off, you saw him fall, and you saw the portable aluminium step rolling thereafter?
A. Exactly, I guess, I saw the after events of the step rolling, I didn't actually physically see his foot hit, step onto that step.

Q. Did you see that he had got to the last step of the stairs inside the door and was stepping off?
A. Yes.

Q. And as he stepped off, there after you saw him go into this fall which saw him wind up on all fours, is that it?
A. Yes, that is right, yep.

Q. Can you recall how far the portable step moved when you saw it roll?
A. It would have probably rolled a bit less than a metre, it rolled, it basically rolled maybe twice, so I would say.
Q. Was it turning over?

A. Basically it turned over.” (Transcript 116.25)

23. Mr Molina went on to say that the pilot, and perhaps another person, asked the plaintiff if he needed assistance and some conversation occurred between them. He said the pilot then asked Mr Molina to wait while he replaced the step. Mr Molina said he overheard some conversation between the plaintiff and the pilot during which the plaintiff said “that’s not safe” or something like that. He did not recall what, if anything, the pilot said in reply. I note here that I allowed evidence of this conversation over objection because it had not been part of the plaintiff’s evidence that he had said anything to the pilot. The plaintiff’s evidence was that he was very embarrassed and got up quickly and went into the terminal without speaking to, or being assisted by, any person. Although I could not use the conversation with the pilot to found a conclusion that the step was not safe I do note the following:-

(b) The pilot was not called to contradict Mr Molina’s assertion.

24. Mr Molina said he spoke to the plaintiff in the terminal but I upheld the objection to the content of the conversation.

25. Mr Molina was asked for his general description of the step and some distances. He said that “it was quite a large step down” and the aluminium step was “a little narrower than the steps on the plane” (Transcript page 121).

26. Under cross examination Mr Molina said he could not recall the extra passengers on the plane but certainly did not deny that they were present. He said that the distance between the aluminium step and the aircraft’s steps was different to the distance between the steps of the aircraft. He said that he saw the step rolling at a “fast roll” but he did not know what caused it to roll in the first place. As to the 200 metres distance to the terminal he conceded it might have been 100 metres. Mr Molina said his impression was that the pilot came through the cabin and opened the door, as opposed to exiting through a separate door, but he was not sure. He said that after the pilot had alighted from the plane he had asked another person to obtain the step and there was a short wait until it was brought to the pilot who placed it in position.

27. As I have already noted I was very impressed with Mr Molina. Putting aside the number of passengers he seemed to have a clear recollection of what he saw and gave an equally clear description. He made concessions where appropriate. I accept him as a reliable witness.

28. The plaintiff tendered an expert report from Dr Johnn Olsen. The report, dated 6 December 2007, is Exhibit C. It is essentially an analysis and commentary on the suitability of the aluminium step both in regard to its own make up and its use in conjunction with the aircraft’s internal steps. Dr Olsen concluded that both the aircraft stairs and the metal step contributed to the fall. He said that the metal step overturned because of its defective design (page 13). The tender of the report was subject to objection on the basis of its relevance. I allowed the report in because at that stage the liability issue had not become fully apparent and I effectively deferred an examination of the relevance of the report. A photograph of a step which had some modifications made to its legs after the plaintiff’s fall was also tendered (Exhibit F) and is in the same category as Dr Olsen’s report. I will return to my views on relevance of these exhibits when discussing whether or not an “accident” took place.

29. The question of precisely how the plaintiff came to fall is I think important in the light of the defendant’s submitted interpretation of an “accident”. Although the plaintiff agreed in cross examination that he could not see the ground immediately beneath the aircraft it is nevertheless his case that the area was uneven and perhaps sloping. Mr Miller, the Managing Director of the defendant, gave evidence about the surface of the apron where the aircraft would normally stop. He said that the area was smooth and he described it as being of a hot seal tarmac in nature. He described this term to mean a pre-mixed asphalt in which, unlike for example some roadways, there are no loose stones. I asked him some questions about this evidence because, in my view, it is clear from the photographs in Exhibit A, in particular numbers one and two, that the aircraft in these photographs is not sitting on a hot seal surface as described by Mr Miller. In fact, such a surface is clearly visible in the photographs, but not beneath the aircraft. I thought Mr Miller’s evidence that it was difficult to observe this distinction because of shadows in the photograph was somewhat evasive. In my view the aircraft in Exhibit A is clearly sitting on tarmac which is not of a hot seal nature and which contains an uneven surface. I do not know, however, if the aircraft on the day of the plaintiff’s fall was standing in the same spot as in Exhibit A so that all I can take from the Exhibit, in this regard, is that contrary to the evidence of Mr Miller there are parts of the apron which are uneven and not made of hot seal tarmac.

30. Returning to the plaintiff’s evidence. He said that when he fell there was contact with his hands and both knees but that the greater impact was with the left knee.

March 1997 and July 1998

31. The plaintiff had earlier given evidence that in March of 1997 he had travelled to South Africa on a business trip. He said that prior to that trip he had no problems with his knees. He said that on the trip to South Africa he noticed, on arrival in Johannesburg, that he had an ache which “appeared to be in my calf and lower leg”. His leg remained painful throughout his stay and continued to be troublesome on the return trip to Australia. He said that the pain seemed to have moved up his leg more towards his left knee. Shortly after returning home he attended the Pindarra Private Hospital. It was on a weekend and the emergency department of this Hospital was the only place where he could obtain treatment. He said that when he attended the Hospital he had swollen ankles and was feeling run down. He had an x-ray and thought “they couldn’t identify any particular issue”. In cross examination he said he remembered being told something about arthritis (Transcript 68.8).

32. The notes produced under subpoena by the Pindarra Hospital are important and heavily relied upon by the defendant. These notes are to be found in Exhibit 8 behind Tab 2.1.4. Without setting out every part of the records I note the following:-

(b) The diagnosis included left “medial meniscal injury”.

(c) The history given included a complaint of a swollen and painful left knee, “now improving … both ankles swollen”.

(d) The pain and swelling in the left knee was said to have started “2/52 ago”.

(e) On examination, the knee was found to have a full range of movement but with pain. A McMurrays and a grind test were said to be both “slightly” positive.

(f) The plaintiff’s visit to the Hospital was on 15 March. He returned the following day when it was noted he was “improved”.

33. When the plaintiff attended the Pindarra Medical Centre in March 1997 he was sent for an x-ray. The report of 15 March 1997 states:-

“

There is a small volume knee joint effusion present. There is marginal looping at the articular surface of the patella no other abnormality detected.”

The various doctors in the case all agreed that this report indicated signs of minor degenerative change.

34. Another pre-incident medical record relied on by the defendant is contained in the notes of Dr Yelland. The note, made on 22 July 1998, reads:-

“Lipids elevated but did have high fat diet prior to test. Can’t exercise due to bad left knee. Keen to lose weight can see problems ahead especially left knee. For dietician. Increase Lipitor to 20mg daily.”

35. This is the only entry referring to the plaintiff’s left knee between his visit to Pindarra Private Hospital in March 1997 and the fall at Dubbo Airport in September 1998. The defendant says that the note indicates continuing problems with the left knee. The plaintiff submits that the note must be read in the context of the plaintiff not needing to adjust his work habits and indicating no more than a mild inconvenience in the knee.

36. The plaintiff said that on the day after his fall his left knee began to swell and progressively got worse until he was hobbling and could not bend the joint. After some weeks he decided he should seek medical attention but could not get an appointment with his ‘usual’ GP, Dr Yelland. Instead, on 5 November 1998, he consulted Dr Ohmsen, a Sports Physician who recorded this history:-

“Mr Paterson gave a history that he injured his left knee six weeks prior to seeing me getting off a light aircraft. He tripped and fell on to his anterior knee. Subsequent to this he developed increasing medial joint and anterior knee pain.”

On examination, the doctor found mild effusion in the left knee and also “medial joint line tenderness consistent with an acute medial meniscal tear”. Dr Ohmsen prescribed anti-inflammatory medication and suggested a trial of rehabilitation. He also referred the plaintiff for an x-ray of his left knee which was carried out on 6 November 1998. The report, of Dr Rafferty, reads as follows:-

“Early osteoarthritis is present in both compartments of the knee joint and in the patellofemoral joint. There is slight narrowing of the medial compartments. The patellar is small and superiorly located. It shows slight lateral tilting in the skyline view which also reveals the lateral femoral epicondyle is poorly developed.”

37. The plaintiff went back to Dr Ohmsen on 19 November 1998 when, despite a history of some improvement, the doctor was of the view that the plaintiff needed an arthroscopy of his left knee to assess his medial meniscus. I think this point is important because, to me, it indicates an increase in the plaintiff’s symptoms consistent with extra pain since the fall but over and above the level of pain which seems to flow from the single note of Dr Yelland on 22 July 1998. In this regard I note that the plaintiff saw Dr Yelland on a number of occasions between March 1997 and the fall and it is only on the one visit, 22 July 1998, that the left knee is mentioned.

38. Dr Ohmsen referred the plaintiff to an orthopaedic surgeon, Dr Rackemann apparently for the purpose of carrying out an arthroscopy. There is some doubt as to whether the plaintiff saw Dr Rackemann because there is no note from the surgeon indicating any consultation. The plaintiff’s memory is that he thought he had seen Dr Rackemann but was not positive. However, there is a note in Dr Yelland’s records on 22 December 1998 which says:-

“At Dubbo Airport last week had an accident and fell on to knees – has seen Dr Rackemann diagnosed torn meniscus and suggesting arthroscopy.”

39. Whether or not the plaintiff saw Dr Rackemann the fact is he did not have an arthroscopy until 2007. His evidence was that as a result of a series of operations as a child he developed a strong aversion to being put under an anaesthetic. This was only overcome some years later when following successful surgery for impacted wisdom teeth he changed his mind and came to the view that he should not fear surgery.

40. On Dr Ohmsen’s recommendation the plaintiff had some physiotherapy. At that time he was involved in a project in Brisbane and was not required to travel. Some time later, however, he needed to start travelling again and he said he found it “very challenging”. As a result of the difficulties the plaintiff was having with his work, which included the travelling and onsite visits, he decided to change the emphasis of his business from asset management and maintenance to project management which was more sedentary. He said that but for his knee problems he would have continued to expand the business to a degree where he would be employing eight consultants and he personally would be able to concentrate on “more planning, better cost control, spend more time on business development, client liaison”. The plaintiff said that in, roughly, the years 1999, 2000 and 2001 he endeavoured to change the nature of his business and during this period accordingly suffered a down turn and consequent decrease in income.

41. As I understood the plaintiff’s evidence he put up with his knee problems because he knew that he would be referred for an arthroscopy which he was not prepared to have. On 2 February 2007 the plaintiff saw Dr Ohmsen complaining of persistent symptoms in his left knee. He was referred for an x-ray of both knees which revealed “Degenerative changes involving both knees moderately severe in the right patellofemoral compartment” (Dr Mason’s report dated 7 February 2007). Dr Ohmsen referred the plaintiff to Dr Rackemann who performed an arthroscopy on the plaintiff’s left knee on 1 March 2007. Following the procedure Dr Rackemann reported back to Dr Ohmsen as follows:-

“The findings were that there was eburnated bone at the patellar and trochlea.

In the medial joint compartment there was moderate wear changes and a probable symptomatic complex fear of the posteromedial portion of the medial meniscus. The tear has been resected and the meniscotibial ligament debrided to decompress any associate cyst. The peripheral fibres were left intact.

There was preservation of the lateral joint compartment and intact lateral meniscus.

Lateral release was performed; bleeding vessels were diathermied. The patellar was everted through 90 degrees.

Postoperatively, a compressive dressing has been applied. He will be placed in a knee immobiliser to be worn for five days only. He may weight bear as comfortable.

He is to attend physiotherapy to assist with rehabilitation. I will check his progress in three weeks or earlier if there is a problem.”

42. Although it was for medico legal purposes the plaintiff had also seen Dr Ohmsen in September 2005 and the doctor arranged an MRI of the left knee. The MRI report concluded:-

“Moderate degenerative disease involving all three compartments of the knee. Horizontal under surface tear involving the body and posterior horn of the medial meniscus.”

43. In his report dated 26 September 2005 Dr Ohmsen said that the plaintiff needed an arthroscopy of his left knee “to address his medial meniscal tear”. The doctor was clearly of the opinion that the tear had been caused by the fall. The report does confirm the plaintiff’s evidence that the treatment he needed was an arthroscopy and that if he wasn’t prepared to undergo this procedure there was not much more that could be done for him. It is also consistent with the plaintiff’s evidence that between 1998 and 2007 his problems with his knee continued.

44. As stated, the plaintiff came to surgery on 1 March 2007 when Dr Rackemann performed an arthroscopy. He said that he “got significant benefit from it.”; however, very soon afterwards he began to have problems with his right knee. The plaintiff had said that he had fallen on both knees at Dubbo in September 1998 but that after about two weeks he no longer had any problem in his right knee. The plaintiff does not allege that his right knee was injured, other than some minor bruising, in the fall. He does say, however, that as a result of favouring his left knee extra pressure was put on the right knee which caused the problems that he started having after March 1997. He said that the pain in his right knee became excruciating and he tried to go back to Dr Rackemann but was unable to see him. Instead he saw a Dr Vertullo but “didn’t hit it off” with him. He then got a referral to a Dr Hayes who, on 3 September 2007, performed an arthroscopy on his right knee. The arthroscopy report was put to a number of doctors so I think I should set it out here:-

“Findings patellar lateral facet grade 4 osteoarthritis.

Femoral trochlear – lateral facet grade 4 osteoarthritis.

Medial femoral condyle – superficial chondromalacia and fibrillation.

Medial meniscus – posterior one third degenerative tear divided to red red zone.

Medial tibial plateau – mild fibrillation. ACL intact PCL intact. Left femoral condyle normal. Lateral meniscus normal. Popliteus normal. Lateral tibial plateau – normal. I then performed a lateral release to correct the patellar tilt. A drain was placed in situ.”

45. The defendant’s approach to the right knee is that its problems have nothing at all to do with the 1998 fall. Rather it relies on it as support for its contentions in respect of the left knee, namely that because knees tend to degenerate bilaterally that the right knee problems indicate the natural degenerative course that the left knee took since the slight degeneration was identified in the x-ray in March 1997. The defendant, in plain terms, puts a case that the meniscal tear is of a type that is usually degenerative in origin and that this tear was present in March 1997 when the plaintiff attended the Pindarra Medical Centre. The defendant says that at most there was an aggravation of the plaintiff’s left knee condition in the fall but this aggravation extended for no more than about three months. The defendant relies primarily on Dr Coolican in support of this approach but also draws comfort from different parts of the evidence of other medical practitioners in particular arising from their cross examination.

46. A number of the plaintiff’s doctors were cross examined, including Drs Ohmsen, Wallace and Pentis. The only doctor cross examined from the defendant’s camp was Dr Coolican. The latter was, in fact, the only medico legal expert relied upon by the defendant. The plaintiff had seen Dr Millons for the defendant. His report was tendered by the plaintiff. There was also common ground that the plaintiff had seen a Dr Oates, an Occupational Physician, for the defendant on 25 October 2005. No report was tendered and I draw the usual inference to the effect that the doctor’s opinion would not have assisted the defendant’s case.

47. The view generally expressed by the plaintiff’s doctors was that the meniscal tear was caused by the fall. There was agreement amongst all the doctors that the plaintiff had degenerative signs in his left knee in March 1997 and that there would have been a continuation of this degeneration over time. There was much debate in the cross examination of the doctors as to whether the meniscal tear, ultimately identified in the arthroscopy in 2007, was of a type produced by degeneration, whether the McMurrays test performed in March 1997 was of any value and what the likely course of degeneration would have been. It seemed to me that there are four available conclusions:-

(b) The meniscal tear was caused by the fall.

(c) There was a meniscal tear present before the fall but made worse by the fall.

(d) The meniscal tear occurred, as a result of degeneration, sometime after the fall.

48. The various doctors, in their evidence, effectively conceded the possibility of all of the above options but, of course, preferred some to others. In addition to all being of the view that there was some degeneration present in 1997 they were also unanimous in stating that the “gold standard” for identifying a meniscal tear was an arthroscopy. As already stated, the arthroscopy in this case did not occur until 2007 so that the course of degeneration and the time of the tear are matters of speculation flowing with the doctors’ interpretation of the Pindarra medical notes, the nature of the fall and the pattern of complaints by the plaintiff both before and after the fall.

49. I thought all of the doctors that gave evidence were compelling despite the fact that they did not agree on the aetiology of the tear. I do not think I am in a position, no matter how detailed an analysis of the medical evidence I conducted, to reach a conclusion as to when the tear occurred. On the one hand the tests conducted at the Pindarra Medical Centre (McMurrays, Grind and Medial Joint Line tests) are suggestive of a tear but yet between March 1997 and the fall, amongst nine consultations to Dr Yelland, there is only one reference to left knee difficulties on 22 July 1998. In addition, there is the description of the plaintiff of his fall which involves a heavy man falling at least some distance onto a very hard surface on his knees and the descriptions of his complaints thereafter. In my view, the best I can do in relation to the plaintiff’s left knee is to make a finding as to whether or not I accept that following the fall his knee became worse and for how long that aggravation continued. It is clearly open to me on the medical evidence to find that the degenerative process, and the pain and restriction in the knee, could have been aggravated by the fall and that that aggravation could have continued for some time.

50. Dr Wallace, in his examination in chief said this:-

“A. Yes. At the time of my report one of my diagnoses was that Mr Paterson had suffered an aggravation of pre-existing tricompartmental osteoarthritis and indeed in his X-ray of November 98 he had some early changes of arthritis at that time. But in his X-ray of March 97 at the time at Pindarra he didn't have much to see. So I think he has gone on to develop some early degenerative change of the knee over that 18 month period. I think his symptoms at July 98 are - I don't think they're due to that inflammatory synovitis if that's what it was in March 97. I think that would have settled. I think at July 98 he's most likely, particularly if he's exercising vigorously, to be suffering from some early wear and tear in that left knee which was then seen in his X-ray of November of that year. So I think prior to his fall in September 98 I think he did have some early osteoarthritis of the left knee. I think that's what caused that - his mention of that symptom in July 98 and I think that condition was aggravated by his fall of September 98, which is the diagnosis I made at the time.”

51. In relation to the origin of the tear, Dr Wallace, in cross examination said the following:-

“A. Well I think it's very difficult at the time to decide you know what happened originally. I mean, somebody could have a traumatic meniscal tear and have nothing done about it and then the meniscus goes on to degenerate. So I think it's difficult at the time seeing the scope - seeing the tear at the scope to know what the exact history was, particularly if you've got somebody who is older who has got a degenerate meniscus then they've got a big tear. They could have had an episode of trauma originally and it's gone on to degeneration. They could have had a meniscus that was degenerate and gone soft and just torn fairly easily. So I don't think you can sort of give an exact mechanism of injury at the time of scope considering if the - if the history has gone back some years.

Q. Yes. But let me suggest to you that many tears - a surgeon can determine whether by having regard to where the tear and the way the tear is described whether or not it's likely to be degenerative or traumatic in origin?
A. I think you could have an opinion about it.

Q. The surgeon looking at this man before the arthroscopy which repairs the meniscus tear is going to be in a better position than another surgeon to make that - express a view, is he not?
A. Based on the arthroscopy or--

Q. Based on the examination and/or the arthroscopy?
A. I don't think - I don't see how he could tell prior to the surgery whether it was degenerative or traumatic.

Q. Yes. Isn't the fact that the tear in this case was ultimately demonstrated I think in 2005 to be a horizontal tear and having regard to where it was in the posterior aspect?
A. Yep.

Q. An indication that it's a degenerative tear?

A. I don't agree with that.”

A little later Dr Wallace said this:-

“A. Well my opinion on that is that they don't occur spontaneously, that there always is some trauma involved, but just that in a degenerate meniscus it takes much less trauma to cause the tear and certainly degenerate meniscuses can tear in a orientation which is common to other degenerate meniscuses just because that is the way the cartilage softens and that is the way the collagen is aligned but when you are not saying that the tear has just occurred spontaneously, the tear has occurred because the meniscus, the tear is more likely to occur because the meniscus is a bit soft and therefore lesser trauma will cause the tear whereas a younger person its more major trauma and that is why the younger population always remember the incident but the older population don't because it is minor trauma involved.”

52. Dr Pentis, under cross examination, gave the following evidence:-

“Q. It's just not possible to say, I suggest, whether or not a bang on the knee, on a symptomatic arthritic knee is going to have any particular impact on the process of degeneration of that knee, is it?
A. Well I'd assume that it would make it worse and the heavier the weight that falls on it the greater the force so the worse it will be.

Q. When you say worse what do you mean by that doctor?

A. Make the condition worse. It does damage to the cartilage or whatever cartilage is there at the time. It can be damaged by a fall, if you fissure it or whatever, it then wears at a quicker rate. It doesn't recover, we don't recover otherwise we'd be like some of these people saying we can fix you in six weeks and you'll be able to go out there and play football and whatever. You can't because you don't fully recover even if you have an operation.”

And then a little later he added the following:-

“Q. Yeah. Isn't this the position, doctor, it's possible in a arthritic knee that's symptomatic, that a fall upon it might produce a flare up of pain, but otherwise not impact upon the natural progression of that knee into it's severe degenerative state?
A. No, it will add to it. It depends on how much the force is. The greater the force, the more likely there is that you'll have further problems, that it will be definitely ongoing.
Q. Well, when you say ongoing, do you mean accelerating the degenerative process or do you mean--
A. Yeah, that's true. It will make it worse. You don't recover. As I said, if you recovered, you'd live to be five hundred. Well, you don't, every insult adds to what's there.” (Transcript 256.46).

53. In my view, the essence of the plaintiff’s case on the effect of the fall on his left knee must be measured by my degree of acceptance of his evidence as to the effects on him following the incident. As unscientific as this approach may be I am firmly of the view that a scientific answer is not possible having regard to the range of plausible options identified by the doctors and favoured by them on an individual basis. I was frankly impressed with the evidence of every medical expert who gave oral evidence. True it is that two of the doctors gave evidence over the telephone but I do not think that affected my ability to understand and appreciate their views. Even if I confine the argument to the doctors that appeared in person, Drs Wallace and Coolican, I would still be met with deciding between their opposed views. In my view, every one of the doctors could be right and none of the views are such that they could be accepted as a probability over the others. If I approached it on a numerical basis then the plaintiff would win (three to one) but I specifically do not do so. I thought Dr Coolican was as persuasive as Dr Wallace, Dr Pentis and Dr Ohmsen.

54. I think it also worth mentioning the report of Dr Millons which was commissioned by the defendant but tendered by the plaintiff. Learned senior counsel for the defendant submitted that it was striking that this report should have been tendered by the plaintiff because it contains a flaw, created by the plaintiff, which must materially affect the weight of the report. This flaw is contained in this sentence under the doctor’s background to the fall:-

“He denies any other injuries of note or problems with his knees prior to 25 September 1998”.

The defendant submits that because this history is so obviously wrong the doctor’s conclusions about the plaintiff’s left knee must be unreliable. Interestingly, however, the doctor despite not having any history of previous problems said this:-

“There is evidence of some general arthritic change through the knee joint. That may in part be constitutional and reflect his age and weight. Degenerate change can be accelerated in the presence of a torn meniscus which has not been dealt with surgically”.

55. It seems to me that the doctor clearly recognised the presence of degenerative change in the knee and although his conclusion that the fall caused the tear must be subject to his not having a full history he also said:-

“He appears to have sustained a substantial aggravation of some constitutionally based attritional changes within the knee joint.”

I note that the defendant did not produce any report from Dr Millons reflecting his views with a complete history.

56. Turning to the right knee the opinions are again divided on the cause of its problems. These seem to be the options:-

(b) The right knee became symptomatic because of the extra pressure flowing from the plaintiff favouring his left knee.

(c) The favouring of the left knee caused some problems in the right knee but these would have passed with the fixing of the left knee.

57. Again, on the medical evidence, I cannot come down in favour of any one of the above options; however, the arthroscopy to the right knee, as with the left knee, does seem to have led to a substantial improvement in the pain and suffering felt by the plaintiff. The improvement seems to be more prevalent in the right knee (transcript at page 36). Having regard to the findings on arthroscopy and the opinions of the doctors, although I could confidently find that there had been an aggravation of the plaintiff’s arthritic condition by the fall in the left knee I think I could equally confidently conclude that with time the plaintiff’s right knee would have degenerated to an extent that an arthroscopy became inevitable. I think the appropriate way to deal with the right knee is to include it as a factor in the plaintiff’s history which I shall take into account in assessing general damages as making a possible contribution over a relatively short period of time.

58. This brings me to my assessment of the plaintiff’s credit in particular, at this stage, in the light of the approach I have decided to take as to the nature of his left knee condition. His credit is also important to the economic loss issue because the plaintiff asserts a very substantial financial loss resulting from his incapacity to conduct his business in the manner in which it operated prior to the fall. Credit is, of course, also important to the liability issue because whether or not he had an “accident” will depend on my finding as to what happened in the incident. I note here that my assessment of the incident will not depend entirely on the plaintiff’s evidence because I have had the assistance of an eye witness, Mr Molina, who was the next passenger off the plane following the plaintiff.

59. Before stating my findings on the plaintiff’s credit I should make the following points about the defendant’s submissions on this issue. I regard these points as a clear indication of the fair and proper way in which the matter was approached by one of Her Majesty’s counsel and an experienced junior acting on behalf of the defendant. The points are these:-

(b) It was submitted on behalf of the defendant that I should treat the histories given to the various doctors over the years with caution. It was accepted that a person giving a history to a doctor does not do so with litigation in mind or with a view to emphasising facts not relevant to the medical issues being examined by the doctor.

I accept the accuracy of these points and would add the following. The history of this matter, including its travels to and from the High Court, has meant that it is 10 or more years since some of the events about which evidence has been given have occurred. Memories must fade over this period of time and inconsistencies must be measured in the light of the natural dimming of recollections.

60. As a general statement I accept the plaintiff. He made concessions in his evidence where he felt his memory may have not been reliable, he certainly did not overstate his complaints of pain and suffering and he plainly said his economic loss was for a closed period and, despite continuing pain, his work was no longer restricted. There are issues on which I think he may be mistaken. For example, his best memory was that no-one assisted him to get up after he had fallen. Mr Molina said the plaintiff was assisted to his feet by the pilot. On this point I think Mr Molina is more likely to be correct because he wasn’t affected by the shock of the fall, he was standing in a position where his view was clear and he is absolutely independent. By the same token he also clearly made some mistakes in his evidence. For example, he had the wrong number of passengers on board. This mistake I do not think in any way affects the reliability of his observations of the plaintiff’s fall but demonstrates the effect I mentioned above flowing from the passage of time.

61. Returning to the plaintiff, I accept his evidence that prior to the fall he continued to work and develop his business without any interference from his left knee. I accept that following the fall his left knee progressively became worse and that although it fluctuated in time the problems were such that as a result of them, he made a deliberate change to the manner of conducting his business. I will return to the detail of the economic loss claim below.

Was There An “Accident”?

62. As stated above, the primary liability issue is whether or not an “accident” took place. On first impressions the plaintiff’s fall would seem to logically be described as an accident. However, it is not necessarily the natural meaning of the word that is to be applied. I noted above that Section 28 of the Act is the adoption into Australian law of Article 17 of the Warsaw Convention. The task before me is to ascertain what the word “accident” means in Article 17. This involves, to some degree, the interpretation of an international instrument and for that purpose consideration may be given to the decisions of courts in other countries (Gulf Air Company GSC v Fattouh [2008] NSWCA at paragraphs 26 and 27). I have had the assistance of the parties in taking me to both foreign and local decisions which have examined Article 17. The Article has, in fact, received attention from the High Court of Australia in Povey v Qantas Airways Ltd 223 CLR 189. In Povey the Court was concerned with a passenger who had contracted a deep veinous thrombosis in the course of an international flight. This subject, namely the suffering of a DVT condition during a flight, has received considerable attention through a number of courts, including the House of Lords (In re Deep Vein Thrombosis v Air Travel Group Litigation [2006] 1 AC 495). There is obviously a distinguishable difference between a fall from aircraft steps and the suffering of a DVT condition but the interpretation of “accident” in the highest courts of Australia and England remains very relevant. In fact, it is clear that both these courts have proceeded on the basis that the interpretation of “accident” made in the United States of America, in its highest court, the Supreme Court, in Air France v Saks 1985 470 US 392 remains the appropriate test. I was also referred to some decisions of this Court which I will return to below.

63. In Saks a passenger on an international flight from Paris to Los Angeles suffered severe pain in her left ear from the pressure in the aircraft cabin as it descended to land. The unanimous decision of the court was delivered by Justice O’Connor. I think I should set out the following portions of her Honour’s judgment:-

“We conclude that liability under Article 17 of the Warsaw Convention arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding a passenger's injuries.

…

But when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident

…

Any injury is the product of a chain of causes, and we require only that the passenger be able to prove that some link in the chain was an unusual or unexpected event external to the passenger.

…

The “accident” requirement of Article 17 is distinct from the defenses in Article 20(1), both because it is located in a separate article and because it involves an inquiry into the nature of the event which caused the injury rather than the care taken by the airline to avert the injury.”

64. In the DVT case in the House of Lords the appellants did not suggest that the Saks decision was in error, but sought to bring their facts within the flexible approach suggested by Justice O’Connor. Lord Steyn put the matter succinctly in this way:-

“33. Let it be assumed that it can be shown that an event affecting a passenger adversely on an aircraft was unexpected and unusual. That is generally, however, not enough to make it an accident. It is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger. In the case of DVT this factor is absent. The component parts of the event cannot therefore amount to an accident.”

In the same paragraph Lord Steyn refers to, in my understanding, the leading text in air law (in fact a loose leaf service), namely Air Law, Shawcross and Beaumont. In relation to the definition of an accident the learned authors (Volume II paragraph 693.3), commenting on Povey, said the following:-

“The meaning of ‘accident’ in art 17 was closely examined by the High Court of Australia in

Following

the leading judgment said of

‘accident’

that it was a concept which invited two questions: first, what happened on board (or during embarking or disembarking) that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected? Showing only that while on board or in the course of embarking or disembarking a passenger sustained some adverse physiological change did not identify the occurrence of an accident.”

65. Returning to the House of Lords decision the plaintiff took me, in support of his case, to the following passages:-

“Second, it is important to bear in mind that the "unintended and unexpected" quality of the happening in question must mean "unintended and unexpected" from the viewpoint of the victim of the accident. It cannot be to the point that the happening was not unintended or unexpected by the perpetrator of it or by the person sought to be made responsible for its consequences. It is the injured passenger who must suffer the "accident

"”

“If I fall over during a flight to New York, and break an arm, I suspect that we would all agree that my broken arm was caused by the accident of my fall; and we would do so irrespective of the reason for my fall; if it was my own silly fault, article 21 may relieve the airline of some or all the liability imposed by article 17, but that is another matter. In reaching those conclusions, we should not be agonising too much over whether my fall was an event "external" to me. We should simply be asking whether it was an "accident" which led to my injury. My own synonym for "accident" would be "untoward event" but that is by the way” (Baroness Hale of Richmond at paragraph 49).

66. The defendant submitted that Baroness Hale’s comments go somewhat further than the Saks formula and cautioned me against adopting it. In this regard I was referred to the strident description of comments made by counsel for the airline in Singhal v British Airways Plc, an appeal heard by Mr Recorder Bueno QC in the Wandsworth County Court on 23 October 2007. At paragraph 32 onwards the Recorder sets out the criticism of Baroness Hale’s judgment and rejects it. He sets out, at paragraph 54, his interpretation of what Baroness Hale said:-

“54. She appears to me to be saying, simply and in summary form, what other members of the House of Lords were saying, namely, that for the purposes of Article 17 an injury must be the result of an unexpected or unusual event which was external to the passenger. Once established, such event must be regarded as “untoward”, whereupon the article imposes absolute liability on the carrier, irrespective of the passenger’s own fault in the matter. At that point, relief from liability can be considered in the context of Article 20. I am convinced that Baroness Hale was simply intending to say that, and no more, and that her reference to “own silly fault” was to emphasise that liability under Article 17 is not fault based. She supported the reasoning of the other members of the panel and did not in any way eschew the proper investigative requirements and the need to establish externality as a causative feature.”

I was informed that Singhal is currently under appeal to the English Court of Appeal.

67. Without in any way seeking to place any further interpretation on Article 17 or on the judgments in the Supreme Court (USA), the House of Lords or the High Court of Australia I think that for purposes of the present case, in order for the plaintiff to succeed he must establish the following:-

(b) That unexpected or unusual event or happening must have been external to the plaintiff. Thus the injury must not have been the plaintiff’s “own internal reaction to the usual, normal, and expected operation of the aircraft”.

(c) There must be a causal link between the injury and the unusual or unexpected event.

68. I was referred to three cases in this Court which involved the question of whether there was an unusual event or happening. In Parkinson v Qantas Airways Ltd District Court of NSW unreported 17 October 2002, the plaintiff was a passenger on a flight from Sydney to Auckland. Upon arrival in Auckland, in order to avoid an apparent delay along one aisle of a two aisle cabin, the plaintiff, in disembarking from the aircraft, moved across a line of seats in order to access the right aisle. In moving between the rows of seats she caught her foot on what was a normal part of a seat’s structure. The issue before his Honour Justice R O Blanch, Chief Judge of the District Court, was whether there had been an unusual and unexpected event within the definition of accident in Saks. He found there had not been. He said:-

“The queue of people in the left aisle may, on the evidence, have been caused by an elderly man having trouble opening his overhead locker to get his luggage. That, however, is a perfectly normal incident in disembarking from an aircraft. Moving sideways through centre seats is also a usual aspect of the ordinary operations of a plane.”

69. In Carswell v Qantas Airways Ltd District Court of NSW 2 July 2004, Judge P R Bell also found for the defendant. In this case the plaintiff slipped or tripped when leaving her seat. She alleged that she had tripped over an armrest cover which had fallen to the floor. She said that happening, namely the armrest cover being on the floor, was an unexpected or unusual event. His Honour did not believe the plaintiff in her description of what happened and accordingly found against her. His Honour did, however, in case he was wrong on the credit issue, go onto say that an object, like a seat cover being dislodged during the flight, was not an unexpected or unusual event.

70. The third is the decision of Neilson DCJ in Hannah v Singapore Airlines Ltd [2007] NSWDC 288. In this matter the plaintiff had a pre-existing medical condition which caused her to request a seat in the emergency aisle of an aircraft so that she could elevate her feet. She alleged that a computer malfunction, during the process of checking in, resulted in her not being allocated the requested seat. His Honour found that a malfunction in the computer at the check in stage was not an occurrence in the course of embarking and accordingly the accident, if there was one, did not occur in the course of the plaintiff embarking on the flight. In addition, his Honour found that the computer malfunction was not an “accident” because it did not cause the plaintiff’s medical condition. The plaintiff had suffered a pedal oedema when she was on board. Applying the same reasoning as in the DVT cases his Honour found that the condition was due to an internal problem in the plaintiff’s body and not caused by some external event. Accordingly there had not been an “accident”.

71. There are many hundreds of cases involving the question of an “accident” in different courts around the world. The closest case that I could identify, on a factual basis, to the present matter is Girard v American Airlines United States District Court, ED New York, Number 00-CV-4559 (ERK), August 21 2003. This is a decision of Chief Judge Korman dealing with a motion to strike out a claim because, inter alia, there was not sufficient evidence of a defect. There was a cross motion by the plaintiff alleging that the Warsaw Convention imposed strict liability on the defendant. The plaintiff was a passenger on a flight travelling from New York to Puerto Rico. There was a stopover in San Juan. When boarding the ongoing flight the plaintiff was taken on a bus from the airport terminal to the aircraft. As she was leaving the bus “she suddenly flipped forward on the stairs, landed on the ground on her right knee and then rolled to her right side”. The plaintiff did not know what had caused her to fall but had felt something move under her feet just before she fell. It was this part of the case history that I thought drew a similarity to the present matter. There was one extra piece of evidence, however, which is missing in the present case. The plaintiff’s daughter, by affidavit, gave evidence that she observed that the step was defective. His Honour found that the bus trip was in the course of embarkation and in relation to whether there had been an unusual or unexpected external event his Honour said the following:-

“The sole remaining question is whether the incident giving rise to Ms. Girard's injuries was indeed an unusual or unexpected external event. Ms. Girard testified in her deposition that as she was disembarking from the terminal bus, something moved underneath her feet and she flipped over (Girard Dep. at 10, 14). Although Ms. Girard was unable to determine exactly why she fell, her daughter Ursula St. Prix, stated that she could “see the step shift forward and it forced my mother to tumble forward off the bus and onto the ground below.” (St. Prix. Aff. at ¶ 3). Ms. St. Prix also attested that the same step felt loose and moved when she put her foot on it subsequent to her mother's fall. ( Id.). Taking this evidence at face value, and applying the liberal construction of “accident” encouraged by the Supreme Court in Saks, Ms. Girard's injury was not a result of her own “internal reaction to the usual, normal, and expected operation of the aircraft.” Saks, 470 U.S. at 406. It is not usual or expected that the stairs of a terminal bus would abruptly give way, nor would an injury incurred by such a defect be within the normal operation of an aircraft or airline. Thus, plaintiff's injury can be attributed to an event both external and unexpected, placing it within the purview of the Warsaw Convention.”

72. I drew Girard to the attention of the parties to give them the opportunity to make any submissions which might assist their respective arguments. Both sides drew support from the case. The defendant made the point that the clear distinction between Girard and the present case is the evidence of the plaintiff’s daughter that there was defective step. Firstly it was said that there was no evidence that the step upon which Mr Paterson fell was defective and secondly, and accordingly, it was submitted that in the present matter there was no evidence of an external event. The plaintiff said that I should adopt a liberal construction of “accident” as done by Korman J and said that it was not usual or expected that the aluminium stair would give way even if a specific defect could not be identified.

73. I should say at this stage that the plaintiff, as its primary submission, went even further than the approach taken in Girard in that it submitted that on the simple evidence of the plaintiff that he fell, he should succeed on the basis of the above statement of Baroness Hale in the DVT case.

74. In discussion I put the question to learned senior counsel for the defendant as to what his position would be if there was a clear defect identified in the step. He responded in this way:-

“WILLIAMS: I think so. I think if the step on which the plaintiff in this case gave way, and sooner or later we will get to more discrete and close matters, but to take an extreme example if the step broke as the plaintiff put his foot on it then, on our case, given that the step is part of the usual operation of the aircraft, that would be an accident.”

“WILLIAMS: I now have to address your Honour's questions that you were putting to me before the morning tea adjournment. Yes, if as he stepped on one of the legs of the platform gave way, that would bring the plaintiff within the orbit of the convention, we would say.” (Transcript page 328.20).

75. In my view the concession made by Mr Williams is not only fair but brings the matter down to the most important issue on which I have to find, namely whether or not anything “external” happened to the stair so that the plaintiff fell over. The defendant says that on the evidence before me I could not make a finding about any external event. In this regard the defendant submits that the differing histories given by the plaintiff to the doctors do have a relevance in that their inconsistency (eg slipping, tripping, etc) do not enable me to reach any firm conclusion arising from the plaintiff’s evidence. Further, it is said that the plaintiff could not identify the nature of the ground where the step was placed because even if there was an uneven or sloping surface observed by the plaintiff as the aircraft drew to a halt, his observation would have been of an area of ground some distance from the aircraft and not, as he conceded, immediately below the door where the step was placed. In addition, Mr Molina could not give any evidence about what caused the step to “flip” as he did not actually see anything happen to the step and, moreover, the same step was used for the remainder of the passengers to disembark so that there was obviously nothing wrong with it. Further, the defendant submitted, the history of the use of the step was such that there had been, according to Mr Miller, no other incidents either with his airline or of which he had heard involving a step giving way.

76. The contrary argument put by the plaintiff is that if the accident cannot be attributed to any fault of the plaintiff himself, or by reason of any internal failure (eg a knee giving way) then there must have been some “misbehaviour” on the part of the step. To this end it says the report of Dr Olsen is at least indicative of a problem in the step, and further adds that the history of the step is in fact supportive of its position because, on this occasion, something must have happened to cause it to give way. In relation to the assorted histories to doctors the plaintiff submits that no reliance should be placed on the histories, for the reasons I have set out above. The plaintiff says there is one independent contemporaneous note which is significant because firstly it is close in time to the accident and secondly it is in a setting in which care would have been taken to provide an accurate description of the event. This is the letter from the plaintiff’s then solicitors (McCowans) to the defendant. The letter is dated 11 November 1998. It includes the following:-

“The stairs in question were inherently unsafe, yet alone when, according to our instructions the stairs were placed on uneven ground thus resulting in one of the legs (of which there were four) not resting on the ground. As our client stepped on to the staircase, it gave way from underneath him thereby causing our client to fall to the ground”

77. I think the plaintiff’s point in relation to the solicitor’s letter is well made. The history was obviously given at a time when the events would have been considerably more fresh in the plaintiff’s mind and his recollection more clear, and secondly, a solicitor writing a letter of this type could be expected to take some care to put forward the facts which might ultimately need to be proved in litigation.

78. The plaintiff also draws some support from the failure of the defendant to plead contributory negligence which it is entitled to do under Section 39 of the Act. The argument is that even though the defendant’s primary case is that there was no accident the fact that contributory negligence is not pleaded confirms the absence of any allegation on the part of the defendant, that any element in the manner in which the plaintiff descended the stairs contributed to his fall.

79. I also think support for the plaintiff’s position can be drawn from the evidence of Mr Molina. He did not see what caused the step to flip. However, he did see it rolling over a distance of up to a metre and he said “I saw it actually rolling at a fast roll” (Transcript 126.8). Something obviously caused the step to behave as it did. I also think Mr Molina’s recollection of the plaintiff stating immediately that the step was unsafe is important and consistent with the letter from his solicitors which I have referred to above. Something obviously caused the step to move. I cannot, on the evidence, conclude what that cause was. I think I can conclude, however, that whatever it was constituted an usual or unexpected event. As stated by Korman J in Girard: “It is not usual or expected that the stairs of a terminal bus would abruptly give way, nor would an injury incurred by such a defect be within the normal operation of an aircraft or airline”. True it is that there is no direct evidence of a defect in the step (as given by the plaintiff’s daughter in Girard) but there is also no evidence that the step gave way because of some act on the part of the plaintiff. Adopting the words in Saks at 406 the plaintiff’s injury was not a result of his own “internal reaction to the usual, normal, and expected operation of the aircraft".

80. Taken with the plaintiff’s statement to the pilot (Mr Kelly), the contents of the letter from his solicitors in November 1998, his own description of the step giving way and the effect of it giving way as described by Mr Molina, in my view I can conclude that the step gave way as a result of an external factor. I think this conclusion can be reached without even adopting a “liberal” approach and even though I could not say the step gave way because of an uneven surface or an incline on the ground. As to Dr Olsen’s report I make no more use of it than to say that my conclusion is consistent with his opinion.

81. Accordingly, I am satisfied that the plaintiff has established that he was injured as a result of an “accident” as required by the Act (and under Article 17 of the Warsaw Convention) and therefore the plaintiff is entitled to a verdict against the defendant.

82. In case it should be thought that my interpretation of an “accident” is different to that of the Chief Judge of this Court and a fellow judge, I would reject that suggestion and refer to the clear distinction in the facts in the respective cases. In Parkinson there was nothing about the part of the seat on which the plaintiff tripped that had given way or was otherwise unusual and there was nothing unusual about a plaintiff making her way between seats from one aisle to another. In Carswell there was nothing unusual about detachable armrests falling onto the floor of an aircraft. In other words in both cases there was no element of an unusual event occurring in the normal course of an aircraft’s operation (or in embarkation or disembarkation). It could never be said that a step used for passengers to reach the tarmac from an aircraft could be seen as behaving normally if it gave way.

Damages

83. It is common ground between the parties that the Civil Liability Act 2002 does not apply. Accordingly the assessment of the damages is to be made under the Common Law.

84. The amount sought by the plaintiff for general damages is in the range of $60,000 to $80,000. I have already expressed the view that I accept that the plaintiff’s left knee already had degenerative changes present when he fell in September 1998 but that there was an aggravation caused by the fall. I further accept that this aggravation was significant, even though I cannot say that the meniscal tear occurred during or as a result of the fall. I do, however, accept that there was a significant increase in pain and restriction of movement which progressively became worse following the fall and that this extra pain and limitation continued, as far as the left knee is concerned, for some years and probably up to the arthroscopy in 2007. At the same time I am of the view that the condition of the plaintiff’s knees was such that the degeneration would ultimately have brought about a need for treatment and perhaps an arthroscopy but this would have been some time later. As far as the right knee is concerned, as I have said, I will take it into account as a factor in the assessment of general damages on the basis that it may, to some degree, have been caused by the left knee problems or at least its condition accelerated by the favouring of the left leg.

85. I am also of the view, however, that in respect of both knees they have now reached a stage where they cause the plaintiff, following the arthroscopies, significantly less problems and in any event that the degenerative process has caught up with the aggravation. On this basis I think the appropriate figure for general damages is $50,000.

86. Economic loss is difficult to assess because the claim is founded on assumptions which have been made almost entirely by the plaintiff as an estimate of how his business would have gone had he not had left knee problems and so would have been able to continue it as an asset maintenance and management enterprise, rather than a project management firm. Essentially he says that but for the fall he would have employed eight consultants and the business would have produced a fee income of about $1.557m. When I expressed my reservations to senior counsel for the plaintiff about the basis for the assumptions he made the following points:-

(b) The benchmark CCH statistics used by Mr Ivey, who reported to the defendant, are applicable to engineers generally, but not to mining engineers and certainly not to engineers operating in the plaintiff’s field.

(c) The plaintiff himself is experienced in the industry, is a successful businessman in his own right and therefore able to make predictions about business activity. He is, it was submitted, an expert in his own field.

(d) The plaintiff’s expert, Mr Watt, although conceding that the figures were derived entirely from the plaintiff, said there was some documentary and independent support for them:-

“Q. You had no documentary evidence, I suggest, to support the proposition that the plaintiff's business would reach that level of income, or any level of income, in 2006?

A. That's not quite correct.

Q. Right. What do you point to?
A. What I had, your Honour, was the actual financial results of the business that was being conducted in respect of, at the time at 2006 which, on the information provided to me, indicated that it had generated income of $900,000 in 2006. And that was under circumstances which, according to Mr Paterson's allegations, were affected by the injuries that he had suffered. I also--
Q. Well, Mr Watt, just before you go on. All right, Mr King wants you to finish your answer, so if you want to add something else.
A. I also, your Honour, had the knowledge that the mining industry had experienced a very significant real growth over the period that coincides with the projection, or the calculations that I have done, to 2006. So I had some measure of industry activity that may well have supported those sorts of numbers that were being put to me.” (Transcript 161.35).

87. The economic loss, on the basis of the assumptions of income provided by the plaintiff to Mr Watt, according to Mr Watt’s final report (Exhibit B2), was $945,000. This is for the closed period up to 1 July 2007. No claim is made for future economic loss.

88. The defendant served on the plaintiff a report of a Mr Ivey but did not tender it. This report is dealt with by Mr Watt in Exhibit B1 and cross-examination of the plaintiff was obviously partly based on the contents of Mr Ivey’s report.

89. The defendant did tender an earlier draft report of Mr Watt (Exhibit 1) in which the economic loss was somewhat smaller ($433,000) as well as an some e-mails from the plaintiff complaining about errors in the draft report (Exhibit 2).

90. The economic loss calculations are best viewed through the schedules to the reports, in particular Exhibits B1 and 2. Schedule 2 (of Exhibit B1) shows the plaintiff’s actual income (as placed through the Mal Paterson Family Trust). The “fees received” start to diminish in 1999 and do not return to the their pre-accident level until 2005 when there is a substantial jump. Schedule 3, as I understood Mr Watt, assumes the 2006 fees received of $1,557,130 and then applies an increase of 19.45% per annum from 1999 to reach this figure. The $1,557,130 is the assumption provided by the plaintiff so that the figures from 1999 to 2006 are simply a mathematical calculation showing an even increase; a type of ‘top down’ reasoning.

91. It is clear from Exhibit B2 that Mr Ivey, whose report apparently produced an economic loss of $227,000, disputed the plaintiff’s assumption and put forward a number a reasons why the assumed fees received of $1,557,130 would not have been reached but for the accident. These are dealt with in Section 8 of Exhibit B1. Other matters, such as the downturn in the mining industry, were also put to the plaintiff.

92. While I accept the validity of the points made by the plaintiff (paragraph 86, above) I nevertheless cannot accept as proved, on the balance of probabilities, that the assumed level of fees ($1.57m) would have been reached by 2006 absent some corroborative material. True it is that Mr Watt thought the figures were reasonable, but I do not think that is enough to accept that they would probably have been achieved.

93. There has however definitely been an economic loss. I have tried, on the schedules to see a pattern, which might otherwise have allowed me to form a conclusion on economic loss based on the actual figures. I have not been able to do so and refer, for example, to Schedule 7 of Exhibit B2, where it can be seen that the plaintiff’s actual net income has fluctuated whereas his “but for” income has followed a steady upward increase. At first I thought the approach taken by Mr Ivey, as described in paragraph 8.1 to 8.4 of Exhibit B1, was what I had in mind, but absent the tender of the report I am reluctant to adopt what it apparently says.

94. I have decided to follow this approach: I will allow economic loss of $250,000 as being my estimate, to the extent that I am able to make an estimate, of the reasonable loss flowing from the accident. To the extent that my figure requires justification I can only say that it is at least consistent with Mr Ivey’s approach which produced a loss of $227,000.

95. Out of pocket expenses were agreed on this basis: $174 if I found the effects of the fall were confined to 1998 and $6,277.45 if I found the whole of the plaintiff’s medical expenses after the fall were attributable to the fall. My conclusion has fallen between these two scenarios because I have essentially found for the plaintiff on the left knee but not on the right knee. I do not know how much of the $6,277.45 is attributable to the right knee but logic would dictate that the majority of this figure is for the left knee because the latter has been problematic over a longer period of time. I will allow $4,500 as being my best estimate of a fair amount attributable to the left knee. Because of my conclusion that the degenerative changes have effectively “caught up”, I do not allow any future medical expenses.

96. The next issue to be decided is whether interest should be included. There are two elements to this matter. Firstly, whether interest on the particular heads of damages is appropriate and secondly if the damages otherwise exceed the limit of $500,000, whether this limit can be exceeded by an interest component. On the latter point the authorities are divided. In New South Wales Rogers CJ Comm Div in SS Pharmaceutical Co Ltd & Anor v Qantas Airways Ltd (1988) 22 NSWLR 734 says interest cannot exceed the limit of damages. On the other hand, in South Australia, in Saunders v Ansett Industries (1975) 10 SASR 579, Wells J said interest could be added to the limit. Because of my findings on damages I do not need to consider the second issue. As to the first, the Warsaw Convention itself does not mention interest. However, as the common approach I have been asked to take by the parties involves the application of the Common Law I think that normal Common Law principles should apply so that I should award interest on past general damages and economic loss. The decision in SS Pharmaceutical I think is consistent with this approach (see the discussion at page 748 of the decision).

97. In relation to general damages my finding has been that the degenerative changes would by now have brought the plaintiff to the position that he is in so that the whole of the pain and suffering attributable to the accident is in the past. Accordingly I allow interest on the whole of the $50,000 at 4% for 10 years. This produces a figure of $20,000.

98. The Supreme Court interest rate between 1998 and the present has fluctuated between 9.5% and 11%. It is currently 10%. I have allowed economic loss from the accident until 2007. I think it appropriate to allow interest as follows: at 4.5% of the whole amount for eight years (1999 to 2007) and then one year at 10%. This produces an interest figure of $115,000.

99. A summary of the damages I have allowed is therefore as follows:

General damages
$50,000

Interest on general damages
$20,000

Economic loss
$250,000

Interest on economic loss
$115,000

Out of pocket expenses
$4,500

Total
$439,500

100. There will be judgment for the plaintiff in the sum of $439,500. Absent any special order I will order that the defendant pay the plaintiff’s costs of the proceedings.

16/12/2008 - Change defendant to plaintiff - Paragraph(s) 78

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)

General damages	$50,000
Interest on general damages	$20,000
Economic loss	$250,000
Interest on economic loss	$115,000
Out of pocket expenses	$4,500
Total	$439,500