Poonkam v Royal Brunei Airlines

[2006] QDC 374

DISTRICT COURT OF QUEENSLAND

CITATION:

Poonkam v Royal Brunei Airlines [2006] QDC 374

PARTIES:

CHOMSAJEE POONKAM

Applicant

V
ROYAL BRUNEI AIRLINES

Respondent

FILE NO/S:

BD 2728 of 2006

DIVISION:

Applications Jurisdiction

PROCEEDING:

Leave to extend time to commence proceedings

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2006

JUDGE:

Kingham DCJ

ORDERS:

1.     The Application is dismissed.

2.     The Applicant must pay the Respondent’s costs of and incidental to this application, as assessed, if not agreed.

CATCHWORDS:

PERSONAL INJURIES – Carriers’ Liability – Limitation of Actions – Extension of Time to commence claim – Utility of order sought

Personal Injuries Protections Act 2002 s59

Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 27, 34, 36, Schedule 5 (Montreal Convention No. 4).

Sidhu & Ors v British Airways plc [1997] 1 All ER 193 followed

Povey v Qantas Airways Ltd (2005) 216 ALR 427 cited

COUNSEL:

S Conner for the Applicant
R Morton for the Respondent

SOLICITORS:

Craig Ray & Associates for the Applicant
Ebsworth & Ebsworth for the Respondent

1. Ms Poonkam has asked for an extension of time under the Personal Injuries Proceedings Act 2002 to commence proceedings in the District Court to recover damages for personal injuries she says she sustained when she carried her infant son during transit in Brunei and during her passage through immigration in Bangkok. She says Royal Brunei Airlines, with which she travelled, is liable to pay damages for her injuries because it failed to provide her with a stroller for those periods, despite, she says, assurances made by the Airline’s Brisbane ground staff to her and her partner that one would be made available. She has alleged its failure to do so is a breach of contract for which the airline is liable in damages.

1. The Airline has resisted Ms Poonkam’s application on two grounds.  Firstly, it says liability for personal injury in this case is exclusively governed by the provisions of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). The airline has argued that, pursuant to that Act, there is no liability or, if there is, it is statute barred. Secondly, it has alleged Ms Poonkam has not demonstrated sufficient grounds to justify the Court exercising its discretion to extend time.

1. Ms Poonkam’s Counsel has argued that the first ground requires findings of fact and, therefore, should not be decided on a preliminary application. The Airline’s argument, however, rests entirely on propositions of law.  It is not necessary for me to determine any factual dispute to decide this first ground.

1. The primary issues are whether the Carriers’ Liability Act applies and to what effect. If it does apply and has the effect the airline contends, it will not be necessary to consider whether the discretion to extend time should be exercised.

1. The airline’s contentions are:

·     The Carriers’ Liability Act applies to this case;

·     If there is a remedy under that Act, it has been extinguished; and

·     any liability for personal injuries under any other law is excluded by the Act.

The Carriers’ Liability Act applies to this case

1. Ms Poonkam’s contract was for travel with Royal Brunei Airlines from Brisbane via Brunei to Bangkok and return to Brisbane.  The Carriers’ Liability Act gives the Montreal No. 4 Convention[1] the force of law in Australia for any carriage by air to which the Convention applies (s25K). The Carriers’ Liability Act also applies to other contracts of carriage to which the Convention does not apply (s 27). The Airline says that this contract of carriage was one to which either the Convention or s 27 applies.

   [1] The Warsaw Convention as amended at the Hague, 1955, and by protocol No. 4 of Montreal, 1975.

1. The Convention applies to international carriage by air as defined in the Convention (art 1). The definition requires either carriage between two High Contracting Parties (signatories to the Convention), or between two points in the territory of one High Contracting Party as long as there is an agreed stopping place in another country, regardless of whether that other country is a High Contracting Party. Australia is a High Contracting Party; Thailand is not. In this case, the airline says the carriage was between Brisbane and Brisbane with two agreed stopping places in Brunei and Thailand. It says, therefore, the Convention applies.

1. If, however, it is properly regarded as carriage between Brisbane and Thailand, Part IV of the Carriers’ Liability Act applies because it is a contract for carriage between a place in Australia and a place outside Australia to which the Convention does not apply (s 27).  It must be one or the other.

1. It is not necessary for me to decide which it is as the consequence is the same. The provisions upon which the airline seeks to rely apply to both types of carriage.  The relevant provisions (s 34 limitation of actions & 36 liability in respect of injuries) apply to carriage covered by Part IV (s 27) and to carriage covered by the Convention (s 25L).   

If there is a remedy under the Act, it has been extinguished

1. Section 34 of the Carriers’ Liability Act provides the right of a person to damages is extinguished if the action is not brought within two years of the aircraft’s arrival at its destination. Whether the destination is said to be Bangkok or Brisbane, that period has expired. Ms Poonkam arrived in Bangkok on 15 February 2003 and in Brisbane on either 7 or 8 March 2003. Therefore, the latest date by which Ms Poonkam could have commenced proceedings pursuant to the Carriers Liability Act is 8 March 2005.

1. The Airline has argued that the period could not be extended because s34 uses the term extinguished. This, it said, connotes finality that cannot be remedied by the Court. It is not necessary for me to decide whether that proposition is correct. Ms Poonkam has stated her claim is not made pursuant to the Carriers’ Liability Act and she has not applied to extend that limitation period.

1. The Airline has argued, in any event, there is no remedy under the Act in the circumstances of this case. As Ms Poonkam has not asserted such a remedy, this is a question that does not need to be addressed. As it stands, any claim under the Carriers’ Liability Act is statute barred and the Court has not been asked to provide any relief from the operation of s34.

Any other liability for personal injuries is excluded by the Act

1. The liability of a carrier for personal injuries suffered by a passenger, provided for by the Carriers’ Liability Act, is in “substitution for any civil liability of the carrier under any other law in respect of the injury” (s36). The effect of the section is clear from the ordinary meaning of the words.  It might be thought the application of the section in the circumstances of this case is harsh as it appears that it leaves Ms Poonkam without a remedy.

1. In Sidhu v British Airways, the House of Lords unanimously decided that Shedule 1 of the Carriage by Air Act 1961 (UK) provided the exclusive cause of action and sole remedy for a passenger who claimed for injury arising out of international carriage by air, notwithstanding that might leave claimants without a remedy.

1. Schedule 1 was the Warsaw Convention as amended at the Hague, not as further amended by Protocol No. 4 of Montreal. However, the only material difference between the UK Act and the Carriers’ Liability Act with respect to this issue is that the UK Act had no equivalent to s36. The exclusive nature of the liability under the Convention was found to arise from the proper interpretation of the terms of the Convention itself.

1. Section 36 goes further than the UK Act (as then interpreted) and may be considered to have put the matter beyond doubt. There is no Australian authority directly on point. However there is obiter in a recent decision of the High Court of Australia which cited Sidhu’s case with approval and acknowledged the effect of s36 is to exempt airlines from what would otherwise be their ordinary liability (Povey v Qantas per Gleeson CJ et al at 431 and Kirby J at 452).

Order

1. Having decided the Carriers’ Liability Act excludes liability under any other law, Ms Poonkam’s claim could only be brought under that Act.  She has neither sought to make a claim under that Act or obtain relief from the limitation period imposed by that Act. There is no utility in extending time under the Personal Injuries Proceedings Act 2003.  The issues agitated by the Airline on this application were first raised with Ms Poonkam’s lawyers before the limitation period under the Carriers’ Liability Act expired. The Airline is entitled to an award of costs in its favour.

1. My orders are:

1. The Application is dismissed.

1. The Applicant must pay the Respondent’s costs of and incidental to this application, as assessed, if not agreed.