Povey v Qantas Airways Ltd & Anor

[2004] HCATrans 345

[2004] HCATrans 345

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M13 of 2004

B e t w e e n -

BRIAN WILLIAM POVEY

Applicant

and

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

First Respondent

BRITISH AIRWAYS PLC (ARBN 002 747 597)

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 10.19 AM

Copyright in the High Court of Australia

MR J.B.R. BEACH, QC:   If the Court pleases, I appear for the applicant with MR B.F. QUINN.  (instructed by Slater & Gordon)

MR J.L. SHER, QC:   May it please your Honours, I appear with my learned friend, MR S.A. O’MEARA, for Qantas.  (instructed by Minter Ellison)

MR A.J. MEAGHER, SC:   May it please the Court, I appear for the second respondent, British Airways.  (instructed by Ebsworth & Ebsworth)

GUMMOW J:   Yes, Mr Beach.

MR BEACH:   Your Honours, the principal question is ‑ ‑ ‑

GUMMOW J:   What happened to your client’s common law rights, if they had any?

MR BEACH:   They are essentially extinguished by the operation of the Act.  There are two ways in which they are extinguished.  They are extinguished by ‑ ‑ ‑

GUMMOW J:   In what section do we see that?

MR BEACH:   If you go to section 25L, which is in Part IIIC dealing with the Montreal No 4 Convention, which is the relevant Convention, that applies sections 35 to 39.  If you go to section 36, you will see there that the rights under the Convention are “in substitution for any civil liability”.  That is one way in which they are extinguished.

GUMMOW J:   “[I]n substitution for”.

MR BEACH:   Yes.

GUMMOW J:   Does section 36 abolish the common law or does it deal with rights of action as they arise and substitute something for them?

MR BEACH:   Essentially the rights under the Convention ‑ ‑ ‑

GUMMOW J:   If it substitutes something for them, what are the terms of the substitution?

MR BEACH:   The substitution is the rights under Article 17 of the Convention and, although it ‑ ‑ ‑

GUMMOW J:   But in terms of the Act.

MR BEACH:   Although it talks about substitution, there is the authority of the House of Lords in ‑ ‑ ‑

GUMMOW J:   Do not worry about the House of Lords.  Think about Australia for a minute.

MR BEACH:   If the parties have treated this ‑ ‑ ‑

GUMMOW J:   What did you sue on?

MR BEACH:   You sue having a statutory right which is the rights created by section 25K, which picks up for Australian law the rights under the Convention, which is relevantly here the Montreal No 4 Convention.  So essentially it is a statutory claim.

GUMMOW J:   There seems to have been a question of just terms staring you in the face, but nothing was done about it.

MR BEACH:   Could I say this.  We had thought about that and that may depend upon what construction is given to Article 17.  In other words, if Article 17 is construed so as to deny recovery, then it might be said that there has been no consideration given for that substitution and then just terms might then operate, but we would see that as being ‑ ‑ ‑

GUMMOW J:   Anyhow, I will not take it any further, Mr Beach.  So you sued on the statutory cause of action?

MR BEACH:   Yes, we did.  Your Honours will appreciate that the construction of Article 17 has been dealt with at the highest levels both in the United States and the United Kingdom.  Can I say in relation to the United Kingdom DVT Group Litigation that there was a grant of a petition for leave by the House of Lords from the Court of Appeal’s decision.  The petition was granted on 14 July, so in relation to ‑ ‑ ‑

HAYNE J:   That is reported in Part 29 of the Weekly Law Reports?

MR BEACH:   Yes.  So not only has Article 17 in generality been looked at at the highest level, but in relation to DVT litigational claims specifically, the House of Lords after Husain has granted leave from the Court of Appeal’s decision in that case.  So there is no doubting, we would submit, the general importance of this question not only in terms of the construction of Article 17 generally but in relation to DVT specifically.

GUMMOW J:   I think we will hear from Mr Sher and Mr Meagher.

MR SHER:   If your Honours please.  The question is whether there is a point of sufficient importance which requires settling by this Court.  In our respectful submission, there is no such point.  The starting point for any consideration of a claim under Article 17 is Air France v Saks which decided two things, both of which have been accepted through the common law world.  The first is that the injury itself is not the accident to which Article 17 refers.  Secondly, to have an accident, there have to be two ingredients, the first being that there must be an event or happening, and the second ingredient being that that event or happening must be unusual or unexpected.

GUMMOW J:   What do you say about the majority in Olympic?

MR SHER:   The majority in Olympic were dealing, with respect, with one issue, namely, whether a particular course of conduct detailed in that case could be an event.  They decided that in the circumstances of that case the thrice refusal of a flight crew to move a person with a known medical condition away from a danger to that person constituted an event.  It is a hardly surprising decision and, in our respectful submission, did not really make any new law.  It certainly did not decide that doing absolutely nothing, which is what we are concerned with here, constitutes an event.  Since Husain there have been two ‑ ‑ ‑

HAYNE J:   Justice Scalia in dissent described the majority’s holding as being that an airline’s mere inaction can constitute an accident.

MR SHER:    Justice Scalia’s reaction to being in dissent has ‑ ‑ ‑

GUMMOW J:   He rather preferred the view of the Court of Appeal in this case and he referred to it, did he not?

MR SHER:    He did, and the Court of Appeal in the United Kingdom in the Group Litigation.  Justice Scalia’s reaction is, in our respectful submission, not an accurate summary of the effect of the majority decision.  We can say that because there have been two appellate decisions in the US since Husain specifically directed to a lack of warning in a DVT case.  Those two cases are in our list of authorities.  They are the decision of the 5^th Circuit in the case of Blansett, which is under tab 4 of our collection of cases, and the decision of the 9^th Circuit in the case of Rodriguez v Air New Zealand. 

Blansett was handed down on 21 July of this year and Rodriguez was handed down on 3 September of this year.  What those two cases make absolutely clear is that nothing in Husain required them to find – and they did not find – that a failure to give a warning of itself was sufficient to constitute an event.  What those two cases make clear is that Husain has not done anything with respect to Air France v Saks insofar as it requires an event to be established on the evidence. 

Attempts were made in both those cases to elevate a lack of warning to an event by seeking to argue that the existence of an airline policy or an industry policy or the like requiring warnings to be given made it into an event.  So that if you have a circumstance where one would normally expect the warning to be given and none was given, you then have an event.  Even if that were possible – and we say it is illogical and factually impossible – in each of those cases where there was, in fact, in one of them industry policy to give warnings, nonetheless the court said there was no event.

GUMMOW J:   You may be right, Mr Sher, at the end of the day, but there does seem to be a point in all of this.

MR SHER:    It is impossible to argue, and I do not, that the matter is not of importance to the 350 people lining up behind Mr Beach’s current client, but the fact is that the decision down below, in our respectful submission, is clearly correct.  Husain, in our respectful submission, has been greatly overstated in our learned friend’s submissions and really has made no change whatsoever.  It is an easily explicable decision and the two subsequent decisions in America make clear that it has changed nothing there and that the mere lack of a warning is not sufficient in itself to constitute an event or happening. 

Now, if your Honours take the view that the matter needs to be settled at the highest level in this country, it is hardly a good reason that it is being argued in the United Kingdom.  If your Honours take that view, then there is nothing more that one can say about it, but we respectfully submit it is unnecessary. 

There is a practical problem, however, in this matter which I need to draw the Court’s attention to, and it relates to the nature of what the appeal would be.  Can I ask your Honours to go to the application book and in particular to the proposed grounds of appeal at page 188, which are followed by the summary of argument which sets out the two alleged special leave questions at page 191.  We are not sure, your Honours, just exactly what it is that is being said what is the special leave point and how it arises in this case.

If I can take your Honours to the grounds of appeal firstly, if I can deal with ground (c) firstly because it is simply a complaint that they lost.  That is not a special leave point and I suspect it is there as an all‑purpose ground to cover anything they might otherwise have missed.  Grounds (a) and (b) do not, with respect, seem to us to arise out of what happened in this case.  This was, in effect, a pleading summons and the question was whether there was an arguable case on the pleadings.  The pleadings are quite specific.  They are set out in the application book and your Honours might need to be taken to them shortly, but if we look at ground (a), it asserts that:

The majority erred in finding that an omission or failure by an airline to warn a passenger of a risk of death or bodily injury –

That is not what the majority found at all.  What the majority found was that in the particular circumstances of this case as the case was pleaded and foreshadowed by the proposed amended particulars which were subsequently delivered, there was not an accident.

HAYNE J:   Can I just get the right bits of paper.  Paragraph 21, page 15, is the basic plea at the centre?

MR SHER:    That is so, your Honour, yes.

HAYNE J:   Further particulars are given at page 30?

MR SHER:    There was a request for particulars at 22 and they were given at page 30.

HAYNE J:   And is there a further set of particulars that is to be ‑ ‑ ‑

MR SHER:    At page 75.  Can I say something about what appears at page 75.  Subparagraph (a) repeats, in effect, what is in the statement of claim, so it adds nothing to it.  Subparagraphs (b) and (c) are directed solely to the issue of “unexpected or unusual”.  They do not relate to the concept of whether there was an event or a happening.  The first allegation is an allegation that the airlines knew of the risk and knew of preventative measures that could be taken and it goes on to say, “Accordingly, it was unexpected or unusual”, et cetera.  Then (c) asserts that passengers expect to be warned of risks and therefore, and it asserts at the end:

The failure . . . to provide such warning and information was, accordingly, unexpected and unusual.

So nothing in these particulars relates to the question of whether we have an event or a happening.  It relates solely to the question of what is unusual or expected.

When we look at the grounds of appeal, what the Court of Appeal were dealing with was not the general question whether “an omission or failure by an airline to warn a passenger of a risk of death or bodily injury”, but whether in the instance of this particular case the failure to warn was not actionable.  So there would need to be a narrowing of that question.  The second part that creates confusion is the words in the third line, “which risk is known to the airline but not the passenger”.  That seems to have nothing to do with the concept of an event or a happening.  It relates solely to the question of what is unusual or expected.  So it is not clear to us that (a) is directed to anything other than there being an unexpected or unusual event.  It does not seem to us to raise the question clearly as to whether or not a failure to warn is of itself an event or happening. 

The second ground, which would not be sufficient in itself because it relates to only one of the two matters that need to be proved, appears to us to contain some superfluous assertions which introduce an element of vagueness which is also associated with the first ground.  If your Honours look at (b), it commences:

The majority erred in finding that a set of positive and negative conditions –

That is absolutely meaningless, in our submission, and was not the basis for any finding.  This ground appears to be directed to the question of whether you can have an event or a happening other than by way of a single identifiable instance.  So it seems to be raising as a specific question:  does an event or happening have to be a single identifiable instance?  The way in which it is currently phrased is vague and unhelpful but, even if it were answered positively in favour of the proposed appellant, it would not resolve this case because it would only get you past the first hurdle and not past the second.

HAYNE J:   Is there another way of putting the point you are just making that the grounds of appeal as proposed at 188 are at a level of abstraction divorced from the particular pleading which is in issue?

MR SHER:    That is exactly what I am endeavouring to say.  It has taken me longer than your Honour to say it, but I adopt what your Honour has said.  That is no reason not to grant special leave if otherwise it would be granted, but it does require a reformulation of the grounds of appeal in a way which raises the issue that this case raises because we are concerned about the allegations in this case, not a level of abstraction.  Bearing in mind this was a pleading summons, it is important for us that it be decided on the pleadings.

HAYNE J:   Has it been fought in the courts below as all or nothing?  That is, has it been fought on the basis that if this pleading is insufficient, there is no alternative that would suffice?

MR SHER:    It is very difficult to answer that question yes or no.  We certainly fought it on the ‑ ‑ ‑

GUMMOW J:   It is a great pity the demurrer was abolished.

MR SHER:    Yes.  It was argued in a sense like a demurrer but it was argued ‑ ‑ ‑

GUMMOW J:   That is what I thought.

MR SHER:    Yes.  It was argued by us on the basis of the pleadings.  What happened was that we effectively won in front of Justice Bongiorno but he said, “They have advanced in arguments some further matters which became the subject matter of the further particulars.  Because they’ve said they want to amend to allege those, I’m not going to strike the proceedings out”.

HAYNE J:   On what document then would we be working if leave were to be given?  Presumably the statement of claim plus particulars, but the still further particulars?

MR SHER:    Yes.  That is how it was argued in the Court of Appeal.  It was argued in the Court of Appeal on the basis of the further particulars.  That was discussed at the Court of Appeal and I do not think there is any doubt that that is how the matter went forward at the Court of Appeal.  I want to make the point to your Honours that our position is that we argued this on the basis of the matter as pleaded and ultimately particularised and not at this level of abstraction.

GUMMOW J:   Yes, we understand that, Mr Sher.

MR SHER:    They are our submissions, your Honours.

GUMMOW J:   Yes, Mr Meagher.

MR MEAGHER:   May it please the Court.  Could I just make a couple of additional points.  The problem which Mr Sher has been adverting to is a problem which is inherent in the applicant’s case, that is, the applicant does not contend that at any point in time during any of these flights there occurred something which answers the description of an accident.  It contends that whatever the accident was ‑ ‑ ‑

GUMMOW J:   And you say that distinguishes it from Olympic?

MR MEAGHER:   Yes.  The applicant says whatever the accident was, it happened during the whole of the four flights, that is, the Qantas flights to London and the British Airways flights in return. 

HAYNE J:   That appears at page 30, paragraph 4(b):

The “accident” occurred for the duration of the flight –

singular apparently –

throughout which the Plaintiff was subject to the flight conditions, namely –

two flights.

MR MEAGHER:   The flight conditions are set out in the original particulars on pages 2 and 3 of the application book, those being the sorts of things that everybody experiences if one travels on an international flight.  What happened between the application at first instance and the appeal was that the applicant was given leave to add to the particulars, and those are the particulars at pages 75 and 76.  The particulars at pages 75 and 76 in subparagraph (a) pick up what were referred to as “the flight conditions” and then add subparagraphs (b) and (c), but one is still left with a case which does not say when the accident happened at a point in time, simply that there was an accident.

As I have submitted, that distinguishes this case from Husain.  In relation to the exchange between your Honour Justice Gummow and Mr Sher, if one goes to the judgment of the majority in Husain at page 8 of the report, the paragraph commencing “We disagree”, the court makes clear that in that case there was a finding of fact as to something which answered the description of “conduct” and a finding that it was unusual or unexpected, the conduct being the refusal of the flight attendant to answer the requests of the passenger, Dr Hanson, that he be moved.

GUMMOW J:   There had not been a trial, had there?

MR MEAGHER:   I think there had, your Honour, but I am not sure about that.  If one then goes, again in the judgment of the majority, to page 11 to the footnote, which on one view invites this Court to consider the appeal in this matter, footnote 9 ‑ ‑ ‑

GUMMOW J:   If there had been a trial, there would have been a jury, would there not?

MR MEAGHER:   I think yes, your Honour.  If your Honours go to footnote 9 ‑ ‑ ‑

GUMMOW J:   It would not be the District Court’s finding.

MR MEAGHER:   ‑ ‑ ‑ on page 11 in the first paragraph of the footnote in the middle, the court makes clear that its conclusion is not inconsistent with the English Court of Appeal decision.  In the English Court of Appeal decision the English Court of Appeal accepted that there would have been something answering the description of an accident in Husain because of the incidents involving a request to be moved and a refusal to move.  Then in the second paragraph of the footnote the court also makes clear that there are what they describe as “substantial factual distinctions” between Husain and the decision of the Court of Appeal here and the English Court of Appeal decision.

Just returning to your Honour Justice Gummow’s question in relation to the findings of fact in Husain, at page 2 of the majority judgment the recitation of the facts is introduced by a statement that they “are taken from the District Court’s findings”.

GUMMOW J:   I know.  It is an elliptical statement.

MR MEAGHER:   I cannot take it any further.

GUMMOW J:   No.  If this case had got to a jury in the United States, goodness knows what would have happened to it.

MR MEAGHER:   The short point we wish to make, your Honours, is that whilst this is no doubt a tempting subject matter for the Court to take on, in reality the case here is that a mere failure to warn in an otherwise uneventful flight constitutes an accident.  We submit that Husain does not stand for that proposition.  As Mr Sher has pointed out, two decisions which have considered Husain, that is, Blansett and Rodriguez, have both said that a failure to warn does not constitute an accident and distinguished the facts of those cases, and one also has the English Court of Appeal decision.  Those are our submissions.

GUMMOW J:   We will take a short adjournment.

AT 10.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.49 AM:

GUMMOW J:   Yes, Mr Beach.

MR BEACH:   Can I deal with this question of ‑ ‑ ‑

GUMMOW J:   Could you look at page 78 of the application book.  At the moment we are a little puzzled why there has been a departure in the draft notice of appeal in this Court from what was in the Court of Appeal.

MR BEACH:   Because that was my learned friend’s notice in the Court of Appeal.

HAYNE J:   And then inverted.  Why is it not your ground?  Why do you need more than the inversion of what is at 78?  Is your point larger or different?  If it is, I want to know what it is; if it is not, why are we heading down the abstract path that you have chosen?

MR BEACH:   I will explain the abstract path.  One of the orders of the Court of Appeal was that there is to be a permanent stay, so it just did not stop at striking out because the airlines contended that not only was what we pleaded not reasonably arguable but we could not perfect it, so the Court of Appeal ‑ ‑ ‑

GUMMOW J:   It was argued as if it had been a demurrer.

MR BEACH:   Exactly.  Insofar as your Honour’s question is concerned ‑ ‑ ‑

GUMMOW J:   The order of the Court of Appeal reflected that, did it?

MR BEACH:   Yes.  That is at page 181.  In answer to your Honour Justice Hayne’s question, I concede that we need to look at our draft notice of appeal.  Tentatively, I would probably accept that the inversion of those grounds ‑ ‑ ‑

GUMMOW J:   I think it might be high noon, Mr Beach.

MR BEACH:   Yes.  I would accept that those grounds would cover the inversion.

GUMMOW J:   Subject to the draft notice of appeal being amended to accord with what has just taken place in the exchange between you and the Bench, there will be a grant of special leave in this matter.  It would be a one‑day case, would it not?

MR BEACH:   Yes, your Honour.

GUMMOW J:   There is already this useful collection of authorities that can be further reproduced for the appeal in good time.

MR BEACH:   Can I just raise one matter.  I am instructed to say this.  There are 350 other cases depending upon the outcome of this.  We did not seek an expedition of the special leave hearing and I am in the Court’s hands as to the allocation of the hearing date, but if there is a possibility of an expedition, we would appreciate that.

GUMMOW J:   We think, without making any formal order, you can proceed on the basis that a hearing date would probably be early in the new year.  We will adjourn to reconstitute.

AT 10.53 AM THE MATTER WAS CONCLUDED