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Povey v Qantas Airways Ltd

Povey v Qantas Airways Ltd

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
BRIAN WILLIAM POVEY  APPELLANT
AND
QANTAS AIRWAYS LIMITED & ANOR   RESPONDENTS
Povey v Qantas Airways Limited
[2005] HCA 33
23 June 2005
M167/2004
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation:
J B R Beach QC with B F Quinn for the appellant (instructed by Slater & Gordon)
J L Sher QC with S A O'Meara for the first respondent (instructed by Minter Ellison)
A J Meagher SC and A S Bell for the second respondent (instructed by Ebsworth & Ebsworth)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ. More than 75 years ago, when international air travel was in its infancy, Australia became party to the Convention for the Unification of Certain Rules Relating to International Carriage by Air ("the Warsaw Convention")[1]. Those Rules included rules regulating the liability of carriers to passengers.
[1][1963] ATS 18; see also Carriage by Air Act 1935 (Cth).
Since the Warsaw Convention was done on 12 October 1929, several further international agreements have been made to regulate international carriage by air and, among other things, modify the rules regulating carriers' liability. Those further agreements include the Protocol to amend the Warsaw Convention made at The Hague in 1955 ("the Hague Protocol")[2], the Convention, Supplementary to the Warsaw Convention, done at Guadalajara in 1961 ("the Guadalajara Convention")[3], the Protocol done at Montreal on 25 September 1975 and called the Additional Protocol No 3 to Amend the [Warsaw Convention] (which has not come into force), and the Protocol done at Montreal on 25 September 1975 and called the Montreal Protocol No 4 to Amend the [Warsaw Convention] ("the Montreal Protocol No 4")[4].
[2][1963] ATS 18.
[3][1964] ATS 4.
[4][1998] ATS 10.
The Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Carriers' Liability Act") provides that each of the Warsaw Convention[5], the Warsaw Convention as amended by the Hague Protocol[6], the Guadalajara Convention[7], and the Warsaw Convention as modified by the Hague Protocol and the Montreal Protocol No 4[8] has the force of law in Australia in relation to any carriage by air to which the relevant agreement applies, irrespective of the nationality of the aircraft performing the carriage.
[5]s 25(1).
[6]s 11(1).
[7]s 25A.
[8]s 25K.
This appeal concerns the carriage of the appellant by air by Qantas Airways Limited ("Qantas") from Sydney to London via Bangkok and return by British Airways Plc ("BA") from London to Sydney via Kuala Lumpur. The appeal to this Court, and the proceedings in the Court of Appeal of Victoria have been conducted on the basis that the Warsaw Convention as modified by the Hague Protocol and the Montreal Protocol No 4 applied to the appellant's carriage. It is convenient to refer to the Warsaw Convention, as so modified, as "Montreal No 4".
The appellant commenced a proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] HCA 33
Decision Date: 23 June 2005

CaseChat Overview and Summary

The appellant, Mr Povey, brought proceedings against Qantas Airways Ltd and British Airways, alleging he contracted deep venous thrombosis (DVT) as a result of long-haul international flights. The dispute concerned whether the airline carriers were liable under Article 17 of the Warsaw Convention, as amended, for the injuries sustained by Mr Povey due to the conditions of carriage, including immobility, restricted movement, the provision of alcohol, and a lack of warnings or advice regarding the risk of DVT. The High Court of Australia was required to determine whether Mr Povey's contracting of DVT constituted an "accident" within the meaning of Article 17 of the Convention.

The court was asked to consider whether the circumstances pleaded by Mr Povey, which included the confined environment of the aircraft, impediments to movement, the offer of alcoholic beverages, and the failure to provide information about DVT risks, amounted to an "accident" as contemplated by Article 17 of the Warsaw Convention. This article imposes liability on carriers for damage sustained by a passenger if the accident causing the damage occurred on board the aircraft or during embarking or disembarking. The interpretation of "accident" under the Convention, requiring an event that is unexpected or unusual and external to the passenger, was central to the determination.

The High Court held that the conditions described by Mr Povey, even when viewed as a combination of circumstances, did not rise to the level of an "event" or "happening" that could be characterised as an accident under Article 17. The court reasoned that mere inaction or the inherent conditions of air travel, such as immobility in economy class, did not constitute an accident. Applying the principle that an accident requires an unusual, unexpected, or untoward event external to the passenger, the court found that the appellant's claim did not disclose an arguable cause of action under the Convention. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

This Court gave Mr Povey special leave to appeal against those orders, as a result of which he brings this appeal. The material facts Travelling in economy class on a Qantas carrier, Mr Povey flew from Sydney to London via Bangkok on 15-16 February 2000. He returned to Sydney via Kuala Lumpur on a British Airways flight on 18-20 February 2000. In his Statement of Claim, he claims that, as a result of the flights, he suffered DVT. The thrombosis caused a stroke, pulmonary and paradoxical embolisms, chronic chest, lung and leg pain, breathing difficulties, impaired mobility, thrombosis of the right leg and shock, anxiety and depression. Paragraph 6 of his Statement of Claim asserts that the DVT was caused "by the conditions of and procedures relating to passenger travel upon the flights", which included:"(a)a confined and restricted physical environment in which the [appellant] was immobilised for long periods of time in a seated position;(b)impediments to [him] getting out of his seat during the flights;(c)the offer and supply of alcoholic beverages, tea and coffee to the [appellant] during the flights;(d)discouraging [him] from moving around the cabin of the aircraft and encouraging [him] to remain seated during the flights;(e)[the appellant] not being provided with any information or warning about the risk of DVT or information about the measures which [he] could take to reduce such risk." For the purpose of this appeal, these facts have to be accepted as proved.The law In his Statement of Claim, Mr Povey claims that Qantas and British Airways are liable to pay him compensation in accordance with Art 17 of the Warsaw Convention as Amended by the Hague Protocol of 1955. That Convention has the force of law in Australia by virtue of s 11(1) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act"). The appeals to the Court of Appeal and this Court, however, were conducted by reference to the Convention as Amended by the Hague Protocol of 1955 and the Montreal Protocol No 4 of 1975, which has the force of law in Australia by virtue of s 25K of the Act. Hence, it is to the terms of the Warsaw Convention as amended by these two Protocols that one must look to determine the civil liability of Qantas and British Airways for Mr Povey's personal injury. That is because s 36 of the Act substitutes a carrier's "civil liability ... under any other law in respect of" a passenger's personal injury with liability under the Convention. Section 36 is operative in this case, by virtue of s 25L, because the carriage of Mr Povey on these flights was governed by the Montreal Protocol No 4. And the Convention is applicable to this dispute in accordance with Art 1 of the Convention because the flights involved the "international carriage of persons, baggage or cargo performed by aircraft for reward." Article 17 of the Convention states:"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking."

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ (dissent) HUGH J (dissent) KIRBY J (dissent) CALLINAN J

The attempt by the appellant to give his claim the allure of an affirmative "event or happening" by referring to a so-called "pleaded combination of circumstances" and "pleaded continuous circumstances" fails. In the end, the combination and continuous circumstances amount to nothing but aircraft conditions. They do not rise, as pleaded, to an "event" or "happening". Still less do they qualify for description as an event or happening that was "unexpected" or "unusual" in the circumstances of the carriage at that time.Conclusion and order The result is that the conclusion reached by the majority of the Court of Appeal was correct. The orders made by that Court involve no error. The appeal to this Court should be dismissed with costs. No one who has ever endured the discomfort of a long journey by air in the seemingly ever diminishing personal space provided by airlines for economy class passengers, could fail to sympathize with the plight of this appellant. But whether the respondents could and should have done better in this and other respects for him on his long flights the subject of his appeal, is not the question. Rather, it is, as the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ explains, whether on the facts alleged by the appellant, he may be able to make out against the respondents a case of accident within the meaning of "accident" as that word is used in Art 17 of the Warsaw Convention 1929 as modified from time to time. The answer to that question must, I think, be a negative one. The Court of Appeal of England and Wales in In re Deep Vein Thrombosis Litigation[222] took the view that such an accident could not be regarded as having happened unless an event of an unusual, unexpected or untoward kind, external to the passenger, which had adversely affected his health or life, had occurred: mere inaction could not constitute an event or an accident. I agree with that view. [222][2004] QB 234 at 246-249 [19]-[38] per Lord Phillips of Worth Matravers MR with whom Judge LJ agreed. Some further points may be worth making. As the joint judgment also points out[223], the words and concepts contained in the Convention have from time to time been "flexibly applied". Flexible application may lead to both uncertain, and, on occasions, strained or artificial application, the latter the product of an understandable judicial resistance to the rigidity and harshness of a rule admitting compensation relevantly for an accident only. Why, it may be asked should a carrier by air be exonerated if it has negligently injured a passenger simply because there has not been an accident? Great technological strides rendering air travel much safer and predictable have notoriously been made, even in the 30 years since the last, relevant modification of the Convention. It is at least open to question whether air carriers and their insurers are enjoying, as arguably sea carriers also are, the benefit of an anachronistic approach to the perils of travel as defined by outmoded international instruments, a point that I sought to make with respect to the expression used in the Hague Rules, the "perils of the sea"[224], in Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad[225]. Perhaps the time has come to revise these instruments in the light of increased knowledge and improved technology, in the interests both of consumers, and greater certainty of application. [223]See the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ at [28]-[36].[224]The Hague Rules, Arts III and IV. [225](1998) 196 CLR 161 at 242-244 [225]-[230].

Ratio Decidendi

Legal Principle Established

Established by: CALLINAN J

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