Qantas Airways Ltd v Cameron, Leonie Cameron, Leonie v Qantas Airways Ltd
[1996] FCA 715
•14 AUGUST 1996
C A T C H W O R D S
COURTS & JUDGES - motion to set aside judgment of Full Court and restore orders of trial Judge - principles upon which Court exercises power to set aside - whether case decided on a ground not in issue before the trial Judge or raised on appeal - whether Court should exercise discretion to set aside.
COURTS & JUDGES - appeals - role of appellate Court - whether Court should set aside findings of trial Judge.
NEGLIGENCE - whether breach of duty of care - nature of the duty owed - class of persons to whom duty owed - principles - whether failure to warn had causative effect.
PRACTICE & PROCEDURE - pleadings and particulars - whether wide enough to include precise breach where not expressed - procedural unfairness.
Federal Court Rules - O.35 r.7(1)
Trade Practices Act 1974 (Cth)
Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Devries v Australian National Railways Commission (1993) 177 CLR 472
Donkin v AGC (Advances) Ltd (1995) (unreported, Black CJ, Davies & Whitlam JJ, 30 August 1995).
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143
Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Perpetual Trustee Co (Canberra) Pty Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FCR 195
Smith v New South Wales Bar Association (1992) 176 CLR 256
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 400
Warren v Coombes (1979) 142 CLR 531
Water Board v Moustakas (1988) 180 CLR 491
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
QANTAS AIRWAYS LIMITED v LEONIE CAMERON
No G 521 of 1995
LEONIE CAMERON v QANTAS AIRWAYS LIMITED
No G 556 of 1995
Davies, Lindgren & Lehane JJ.
14 August 1996
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G 521 of 1995
)
GENERAL DIVISION )
On appeal from a single Judge of the
Federal Court of Australia
BETWEEN: QANTAS AIRWAYS LIMITED
ACN 009 661 901
Appellant
LEONIE CAMERON
Respondent
No G 556 of 1995
AND: LEONIE CAMERON
Appellant
QANTAS AIRWAYS LIMITED
ACN 009 661 901
Respondent
Coram: Davies, Lindgren & Lehane JJ.
Date: 14 August 1996
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The motion be dismissed.
2.The matter be listed for further argument on costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G 521 of 1995
)
GENERAL DIVISION )
On appeal from a single Judge of the
Federal Court of Australia
BETWEEN: QANTAS AIRWAYS LIMITED
ACN 009 661 901
Appellant
LEONIE CAMERON
Respondent
No G 556 of 1995
AND: LEONIE CAMERON
Appellant
QANTAS AIRWAYS LIMITED
ACN 009 661 901
Respondent
Coram: Davies, Lindgren & Lehane JJ.
Date: 14 August 1996
Place: Sydney
REASONS FOR JUDGMENT
Davies J: The applicant in the class proceedings below, Mrs Leonie Cameron, has moved the Court for orders that the judgment of the Full Court given on 17 May 1996 be set aside and that the judgment of the trial Judge be restored. The motion has been brought on the ground that the judgments of the majority of the Full Court proceeded on a wrong basis, by limiting attention to the particulars pleaded in the statement of claim, and misapprehending the manner in which the case was put below.
I need not discuss the authorities which deal with the circumstances in which a court may set aside a judgment of its own. The leading authority is Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300. The issue was considered by a Full Court, of which I was a member, in Donkin v AGC (Advances) Ltd (1995) (unreported, Black CJ, Davies & Whitlam JJ, 30 August 1995). If the Court had proceeded upon a wrong basis and upon a misapprehension of the manner in which the matter was dealt with at the trial, the Court would have power to set aside its judgment, particularly as that judgment has not been taken out and entered. Such jurisdiction should be exercised with "great caution" however: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; Autodesk Inc v Dyason (No 2) at 302. In Smith v New South Wales Bar Association (1992) 176 CLR 256, Brennan, Dawson, Toohey & Gaudron JJ said at 265:-
"... if reasons for judgment have been given, the power is only exercised if there is some matter calling for review (Marinoff v Bailey (1970) 92 W.N. (N.S.W.) 280, at p. 284; National Benzole Co. Ltd. v. Gooch, [1961] 1 W.L.R. 1489, at pp. 1492-1494)."
Although the challenge to the judgment of the Full Court does not involve a challenge to the reasons of my own, it is appropriate that, in dealing with this motion,
I should record my view that the majority did approach the case on an incorrect basis.
It is not in dispute, or not seriously in dispute, that Qantas Airways Ltd ("Qantas") had a duty of care towards the passengers travelling in its aircraft. Qantas could foresee that carelessness on its part would be likely to cause injury or ill health to its passengers. At the relevant times when Mrs Cameron and the other claimants travelled, it was known by Qantas that flights in pressurised jet aircraft could give rise to health problems from reduced barometric pressure, low humidity, environmental tobacco smoke and the transmission of infectious agents and that one or more of those factors could operate with another or others so as to create or exacerbate a condition in a passenger and result in the passenger's ill health. In these circumstances, Qantas was under a duty of care to its passengers with respect to environmental tobacco smoke in the cabins of its aircraft.
The principal issue raised under the aegis of negligence is whether Qantas breached this duty by failing to take such steps as a reasonable person in its position would have taken having regard to "a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have", to use the words of Mason J in The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47.
At the trial, the applicant claimed that the response of a reasonable person in the position of Qantas would have been to ban smoking on all flights or to permit passengers, if they wished to do so, to obtain at the time of booking an allocated seat which was quite removed from the seats where smoking was allowed. In my reasons for judgment, I rejected this claim because of the evidence given by Mr Robert William Handley, an officer of Qantas, that neither step was practicable, that the demand for smoking facilities was too great on flights to and from certain countries to make it practicable for Qantas to ban smoking on those flights and that no airline has found it feasible to allocate all economy class seats at the time of their booking.
However, the applicant's allegations were not limited to that. The statement of claim gave these particulars of breach of duty, inter alia:-
"59 (d)Failing to warn or to adequately warn ticket holders or prospective passengers that smoking was permitted on Qantas flights and/or Qantas aircraft;
(e)Failing to warn or adequately warn ticket holders or prospective passengers that they may be exposed to cigarette smoke during the flights;
(i)where the allocated seat is not a designated non-smoking seat;
(ii)where the allocated seat is designated as a non-smoking seat, but is in a buffer zone;
(iii)where the allocated seat is designated as a non-smoking seat and is in a designated non-smoking zone."
Moreover, in a statement of issues, facts and contentions delivered prior to the trial, the applicant gave notice that it relied upon the following:-
"3.The applicant further contends, in the circumstances set out above, that the respondent owed the applicant and group members a duty of care to ensure that they were not unreasonably exposed to cigarette smoke and the respondent breached that duty of care thereby causing damage to the applicant and group members being a breach of duty of care which could reasonably have been avoided as follows:-
..
(b)By assuring that a policy or procedure in relation to the allocating of seating on aircraft existed and operated in such a way that passengers in first, business or economy class were informed of the manner in which they may request and secure a pre-allocated non-smoking seat in an area of the aircraft in which they would not or would not be likely to be exposed to cigarette smoke and which was not in the `smoking zone' or `no preference buffer zone' section of the aircraft."
The view which I expressed in my reasons for judgment and which I still hold is that, if Qantas had given adequate attention to the effects of tobacco smoke upon its passengers, it would have developed a response to the danger which would, at least, have included both a warning to potential passengers that environmental tobacco smoke could be encountered and of its dangers and a system whereby those passengers, who had a health problem which necessitated freedom from environmental tobacco smoke, were given a reasonable opportunity to obtain the allocation of a seat which was quite removed from the smoking areas.
Such precautions were practicable and were not excessively onerous or inconvenient to introduce. For example, Mr Handley gave this evidence, inter alia:-
"Equally, I am suggesting to you that if a passenger had a particular health condition that was especially sensitive to cigarette smoke, is not that something that Qantas could take into account in pre-allocating a seat as far away as possible from the smoking area?--- That is possible to do so, yes.
And, it would be possible, would it not, well ahead of the 24 hours prior to departure to inform prospective passengers that if they wanted to be allocated a seat away from the smoking area and away from the no preference buffer zone, then they could make a request of that kind and Qantas could accommodate it?--- That is the case, yes.
...
The question is, that in so far as some people have a particular sensitivity to cigarette smoke, then subject to satisfying Qantas of the genuineness of their concern, if their request for pre-seating allocation was only that they wanted to be in the genuine non-smoking area, rather than in the smoking zone or the no preference buffer zone, then that is something which would be more likely to be taken advantage of if the
availability of pre-allocated seating for that purpose was more generally known?---Yes."
There was no evidence to the contrary. Mr Handley was the witness who gave evidence about such matters and he was a witness called on behalf of Qantas.
In my reasons for judgment, I said that the practice which Qantas had of providing for the allocation of specific seats to persons with medical problems who produced a medical certificate was not of itself a sufficient response to the problems of environmental tobacco smoke. I need not elaborate on that point further save to refer to the following evidence of Mr Handley:-
"Well, at the present moment, you accept that economy class passengers generally do not know about the availability of pre-allocation of seating?---That's true." .
Accordingly, reasonable precautions not having been taken, Qantas was in breach of the duty of care which it owed to its passengers.
The next question was whether, had Qantas taken the step of giving a warning to passengers as to the problems which could be associated with environmental tobacco smoke, and had it accompanied that warning with such practicable steps to alleviate the problem such as drawing attention to the availability of pre-flight medication and making available to susceptible passengers allocated seats removed from the area in which significant environmental tobacco smoke was likely to be encountered, Mrs Cameron and the claimants who had a susceptibility to tobacco
smoke would have taken advantage of the opportunity afforded to avoid the problem.
All the claimants save Commander Glass suffered ill health through exposure to environmental tobacco smoke and all had specifically requested non-smoking seats. The trial Judge expressed his judgment by reference to "passengers with smoke-sensitive disabilities" and concluded that, if an appropriate warning had been given by Qantas, it would have offered the claimants several options, "including the taking of pre-medication ... or choosing a smoke-free flight."
It is implicit in his Honour's findings on liability that he considered that each of the claimants was sensitive to tobacco smoke and that, had an appropriate warning been given, he or she would have taken effective steps to avoid the danger. His Honour dealt with the matter having regard to the evidence given and the conduct of the parties at the trial. An appellate court, though deciding the case for itself, must "recognize the advantages enjoyed by the judge who conducted the trial", must give "full weight to his decision" and should not set aside a challenged finding unless satisfied that "it was wrong": Warren v Coombes (1979) 142 CLR 531 at 551; Devries v Australian National Railways Commission (1993) 177 CLR 472. In my opinion, save in respect of Commander Glass, his Honour's findings were well-founded on the evidence and I agree with them.
Accordingly, in my reasons for judgment, I considered, and I continue in the view, that there should be judgment in favour of all the claimants other than Commander Glass, who merely suffered some discomfort and would neither have
been encompassed by the precautions I have mentioned nor been likely to have altered his position if they had been taken.
In my opinion, the case for the applicant, as I have outlined it above, was sufficiently raised by paras 59(d) and (e) and by para 3(b) of the statement of issues. It is true that the paragraphs did not expressly say that the reasonable precautions required to be taken were those which would be likely to protect persons who were susceptible to ill health from exposure to environmental tobacco smoke. But the proceedings included a claim for damages for negligence. The subject of that claim, save insofar as it related to Commander Glass, was the ill health which the claimants suffered from inhaling environmental tobacco smoke in the cabins of Qantas' aircraft. Accordingly, by necessary implication, the issues in dispute included claims for damages by persons who had a susceptibility to environmental tobacco smoke and who suffered ill health because, so it was alleged, Qantas had not taken adequate precautions to guard against their exposure to it.
In any event, the question of the early allocation of seats to susceptible persons was raised at the trial and the undisputed evidence given by Mr Handley, the officer of Qantas, was that it was practicable for Qantas to allocate seats removed from the smoking areas to those passengers who had a medical condition which required them to be so seated.
The evidence being not in dispute, the claimants were entitled to judgment, whether or not the precise breach of duty was expressed in the particulars. In Mummery v Irvings Pty Ltd (1956) 96 CLR 99, Dixon CJ, Webb, Fullagar & Taylor JJ said at 110:-
"In an action conveniently described as a negligence action the particular duty, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. But the action is still for a breach of the duty specified and the defendant will not defeat the plaintiff's claim either by establishing that the plaintiff's injuries resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other the plaintiff will succeed."
Later, in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, Jacobs J said at 294, in a passage which has frequently been cited, after referring to the judgment in Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666:-
"But the situation which arose in that case was quite different. There the plaintiff at the trial sought to have submitted to the jury a case factually different from that alleged in the pleadings and particulars. This Court stated that if in that different case there was evidence of negligence which, if accepted, established the cause of action the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence and the issue thus raised left to the jury. A failure to apply for the amendment was not fatal. But all this presupposes that the new issue or new way of particularizing the existing issue has emerged at the trial and been litigated, that the plaintiff sought to have a case on the new particulars submitted to the jury. All it means is that a defendant cannot lie by as the evidence supporting the case emerged and then at the end of the trial submit that the issues of fact raised by that case should not be submitted to the jury or even wait for an appeal and then claim that the case which emerged should not have been left to the jury. It is entirely different from saying either that a judge of his own motion is bound to look out a case not only different from the facts pleaded but also different from that which the plaintiff seeks to have submitted to the jury or that a court on appeal may as of course be prepared to seek out from the evidence a case different from that which the plaintiff relied on at the trial."
More recently, in Water Board v Moustakas (1988) 180 CLR 491, Mason CJ, Wilson, Brennan & Dawson JJ summed the matter up in these terms at 497:-
"In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their
functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area in dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged (See Dare v. Pulham (1982), 148 C.L.R. 658). In Leotta v. Public Transport Commission (N.S.W.) ((1976) 50 A.L.J.R. 666, at p. 668; 9 A.L.R. 437, at p. 446), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason & Jacobs JJ. observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v. Commissioner for Railways (N.S.W.) ((1978) 52 A.L.J.R. 291, at p. 294; 18 A.L.R. 147, at pp. 151-152), Jacobs J., with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularizing the existing issue had emerged at the trial and had been litigated."
In the light of these authorities, it seems to me now, as it seemed to me at the time when judgment was given, that the case for the claimants as I have outlined it was sufficiently raised by the pleadings and was litigated at the trial.
For these reasons, I am of the respectful opinion that the approach adopted by my colleagues was wrong. However, all these matters were discussed on the hearing of the appeal. The nature of the case as claimed in the pleadings and at the trial was adverted to. Mr G.K. Downes QC, with whom Mr N.F. Francey of counsel appeared for Mrs Cameron, submitted on the hearing of the appeal that the particulars provided before trial had gone beyond the mere giving of a warning and that the evidence at the trial had, in any event, gone beyond the written words.
Mr P.G. Hely QC, with whom Mr A. Robertson SC appeared for Qantas, submitted on the appeal that the contention that Qantas was under a duty to provide a system whereby persons with a medical problem would be alerted and be able to notify the airline and obtain a seat which would be a reasonably safe seat in the aircraft propounded a case that, to use Mr Hely's words, "was never pleaded, never put, and it has as its axis people who have medical problems."
Mr Downes, in reply, referred to the specific passages in Mr Handley's evidence which I have set out above, and said that the case, as I have outlined it, "was run and exactly run, as so to speak the case within the case." Mr Downes also submitted that the more limited case was within the pleading.
In these circumstances, it seems to me that there is no ground for setting aside the judgment. The principal issues were all squarely raised at the hearing of the appeal and counsel for both parties were given a fair opportunity to deal with them. Nothing has since emerged which was not then apparent. This is not a case of the type which would justify the Court in reconsidering a judgment already delivered.
I would dismiss the motion. Costs should be reserved for further hearing.
There is one further matter I should mention by way of addendum. On this motion, as on the hearing of the appeal, counsel for the claimants contended that environmental tobacco smoke in the cabins of Qantas' aircraft had a relevant carcinogenic effect. The evidence relied upon included a report from Dr W. Isles, which had been made in relation to cabin attendants, that:-
"[T]here is sufficient evidence to link passive smoking with ... from long term exposure, lung cancer ..."
and a report from Professor D.K. McKenzie that:-
"Although the bulk of cases of lung cancer can be attributed to active smoking, the fact that cigarette smoke is a potent carcinogen has led many researchers to consider the possibility that prolonged exposure to much lower doses in environmental smoke might also be carcinogenic."
This evidence did not establish, as a matter of probability, that environmental tobacco smoke encountered by a passenger during a flight had any material carcinogenic effect. And the trial Judge did not so find. Moreover, Qantas had dealt with the matter to some extent by allocating specific smoking seats. The only further reasonable step for Qantas to take, if a further step was required in relation to the possible carcinogenic effect of tobacco smoke, was to ban smoking on its flights. The trial Judge did not find that Qantas was under a duty to do so or that it was negligent for failing to do so.
In my reasons for judgment delivered on 17 May 1996, I did not discuss this matter as I considered that counsel's submissions on the point were without merit and tended to distract attention from the illnesses which the claimants suffered, which was not cancer, and from the steps which Qantas ought to have taken to prevent or inhibit the development of those illnesses. I remain of that view.
I certify that this and the preceding 11 pages
are a true copy of the reasons for judgment of
the Honourable Justice Davies.
Associate:
Date: 14 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 521 of 1995
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN:
QANTAS AIRWAYS LIMITED (ACN 009 661 901)
Appellant
AND:
LEONIE CAMERON
RespondentNo NG 556 of 1995
BETWEEN:
LEONIE CAMERON
Appellant
AND:
QANTAS AIRWAYS LIMITED (ACN 009 661 901)
Respondent
CORAM:Davies, Lindgren, Lehane JJ
PLACE:Sydney
DATE:14 August 1996
REASONS FOR JUDGMENT
LINDGREN J:
INTRODUCTION
On 17 May 1996, the Court ordered that the appeal of Qantas Airways Limited ("Qantas") be allowed, that the cross appeal of Leonie Cameron ("Mrs Cameron") be dismissed and that the proceedings on the appeal and the cross appeal be listed for the making of such further orders as might be appropriate. By notice of motion filed in Court on 24 June 1996, Mrs Cameron
moves for leave for the appeal and cross appeal to be re-listed for further argument. In effect, she seeks an order setting aside the orders allowing the appeal and dismissing the cross appeal to enable this to happen, with a view to reinstatement of the awards of damages of the learned trial Judge in favour of the ten group members. Mrs Cameron submits that the majority (myself and Lehane J) decided against her on a ground that had not been an issue before the trial Judge, was not raised in Qantas's notice of appeal, and was not an issue before this Court on the appeal.
JURISDICTION
Order 35 sub-rule 7 (1) provides that the Court may vary or set aside a judgment or order before it is entered. The orders of 17 May 1996 have not been entered.
The power of a court to set aside a final judgment or order even after reasons have been given, has been considered in several cases in recent years; cf Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38 (Mason and Wilson JJ), 45 (Brennan J); Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 265; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 (NSW/CA) at 153 (Kirby P, with whom Priestley and Handley JJA agreed); Donkin v AGC (Advances) Ltd, unreported, FCA/FC, 30 August 1995. The cases
show that the jurisdiction should be exercised with caution. Nevertheless, I accept that the Court has power to set aside the orders of 17 May to permit the making of further submissions if those orders were made on a ground which, through no fault of Mrs Cameron's, was not in substance argued on the appeal in circumstances where an injustice would be done or might reasonably be seen to be done, if they were not now set aside to permit such submissions to be made. No question of fault on the part of Mrs Cameron arises.
THE JUDGMENT DATED 17 MAY 1996
Beaumont J awarded damages to all ten group members on the ground of the tortious negligence of Qantas. On the appeal, Davies J would have allowed the appeal to the extent of setting aside the judgment in favour of Commander Glass for $50 but would otherwise have dismissed the appeal and cross appeal. His Honour would have ordered Qantas to pay 70% of Mrs Cameron's costs of the appeal and cross appeal.
I thought that the appeal by Qantas should be allowed and that the cross appeal by Mrs Cameron should be dismissed. The effect of this would be that the order for payment of damages, not only to Commander Glass, but to the other nine group members as well, would be set aside as would be the trial Judge's order that Qantas pay 70% of Mrs Cameron's costs. However, for reasons explained in my earlier Reasons for Judgment, I thought that there should be opportunity for the parties to reach agreement as to the outcome of Mr Millane's
claim for damages for contravention of s 52 of the Trade Practices Act 1974 and as to the orders to be made in respect of the costs of the proceedings at first instance and on the appeal.
Lehane J agreed with me. The result of the majority's view was the making of the orders referred to at the beginning of these Reasons.
REASONS FOR JUDGMENT OF LINDGREN J DATED 17 MAY 1996
Clearly, it becomes necessary to consider my earlier Reasons for Judgment. Rather than attempt to summarise or paraphrase, I quote from them as follows:
"Qantas does not dispute that it owes a duty to all its passengers to take reasonable care for their health and safety. It disputes that in order to discharge that duty, it was incumbent upon it to give a warning for the benefit of passengers who were subject to such predisposing conditions. I think that it was, and for the reasons given by Beaumont J at first instance and by Davies J on the appeal." (p 65 - emphasis supplied)
The "predisposing conditions" referred to were such conditions as asthma, allergic rhinitis and atopic disease (allergy).
" ... the case was not pleaded by reference to the special position of those prospective passengers who suffered from conditions which predisposed them to being affected by ETS [environmental tobacco smoke]. It is not pleaded specially that a duty of care was owed to them or that discharge of a duty of care owed to all passengers required special action by Qantas for the benefit of such individuals." (p 69)
At page 70 I set out paras (d) and (e) of the particulars of negligence pleaded by Mrs Cameron as follows:
"(d)Failing to warn or to adequately warn ticket holders or prospective passengers that smoking was permitted on Qantas flights and/or Qantas aircraft;
(e)Failing to warn or adequately warn ticket holders or prospective passengers that they may be exposed to cigarette smoke during the flights;
(i)where the allocated seat is not a designated non-smoking seat;
(ii)where the allocated seat is designated as a non-smoking seat, but is in a buffer zone;
(iii)where the allocated seat is designated as a non-smoking seat and is in a designated non-smoking zone."
I referred to these two pleaded warnings as "the para (d) warning" and "the para (e) warning" respectively and said this:
"In relation to the para (d) warning, it must be borne in mind that prospective passengers were invited to express a preference as between "smoking" and "non-smoking" seats. Accordingly, all ten group members knew that smoking was permitted on the Qantas flights with which they were concerned. In my view Qantas was not in breach of the duty of care which it owed to the ten group members by reason of its not having done more to warn them that their flights were "smoking" flights." (also at 70)
There follow these two passages on page 71 of my earlier Reasons:
"It is therefore only the para (e) warning that merits further consideration. However, the para (e) warning implies the para (d) warning. Moreover, in the light of the view which I expressed earlier about the meaning of "non-smoking" as applied to aircraft passenger seats, the para (e) warning does no more than draw attention to certain matters which are inherent in the para (d) warning. It is merely a warning that passengers could be exposed to ETS during their flights notwithstanding the nature of their seat allocations.
........ ........ ........ ........ ........ ........ ...
In the present case I am content to accept, without deciding, that the duty to warn incumbent on Qantas required the giving of the para (e) warning. This was, in effect, what the trial judge held. It must then be inquired what course the respective group members would have taken upon being given that warning." (emphasis supplied)
I proceeded to examine the evidence in relation to the ten group members and concluded that it provided no basis for inferring that the giving of a para (e) warning would probably have caused them to act differently from how they in fact acted.
By way of digression, I also noted (at p 73) that I did not think it proper to approach the case on the basis that the relevant duty of Qantas was not only to give a warning but to have in place a system under which any intending passenger who responded to the warning by claiming to Qantas to suffer from a pre-disposing condition would be assured of being located on the particular flight desired so far from smokers as not to be affected by their smoking. In this respect, I said that it sufficed to say that the case in negligence was not pleaded or conducted on the basis of "a duty addressed to the vulnerable" backed up by such a system, and that unless Qantas had the opportunity to lead evidence and make submissions directed to the point, it would be procedurally unfair to it to assume that such a system would be practicable.
OUTLINE OF PARTIES' SUBMISSIONS ON MRS CAMERON'S MOTION
Outline of Mrs Cameron's submissions
On the appeal, Qantas's submissions relating to causation referred to the narrow issue of physical causation, that is to say, whether the group members' physical discomfort was caused by environmental tobacco smoke ("ETS"). In his oral submissions, senior counsel for Qantas dealt with duty of care and causation distinctly. Mrs Cameron failed because it was held that the evidence led did not "prove that if the warning or information called for had been given, the loss or injury alleged would not have been suffered" (p 71.6 of my earlier Reasons for Judgment). "[I]t is unthinkable that if this matter had been in issue between the parties the appeal could have come on in the way it did" and "[i]f the issue had been raised in cross examination, at the end of the plaintiffs [sic] case, or in submissions at the end of the hearing, this would appear prominently in the record of the case" and that "[t]he plaintiff [sic] could have applied to re-open." In sum, the particular issue of causation on which I founded my conclusion was never an issue at the trial or on the appeal.
In relation to the issue which I had raised by way of digression, the existence of "a negligent system was raised by
[Mrs Cameron's] statement of issues, facts and contentions". Paragraph 3 of her "Contentions" read as follows:
"3.The applicant further contends, in the circumstances set out above, that the respondent owed the applicant and group members a duty of care to ensure that they were not unreasonably exposed to cigarette smoke and the respondent breached that duty of care thereby causing damage to the applicant and group members being a breach of duty of care which could reasonably have been avoided as follows:-
(a)By not permitting smoking on flights;
(b)By assuring that a policy or procedure in relation to the allocating of seating on aircraft existed and operated in such a way that passengers in first, business or economy class were informed of the manner in which they may request and secure a pre-allocated non-smoking seat in an area of the aircraft in which they would not or would not be likely to be exposed to cigarette smoke and which was not in the 'smoking zone' or 'no preference buffer zone' section of the aircraft." (AB 32K-R)
As well, there is the cross examination of Mr Handley of Qantas at AB 256 in the following passage:
"MR FRANCEY: What I am trying to suggest to Mr Handley is this, that it would be possible, would it not, to allocate customers' requests prior to the 24 hours before departure by some form of ranking of the importance they place on the various criteria they may put forward as being relevant to be taken into account when allocating their seating. You see, what I am trying to say to you is if a customer - if a client is disabled in some way so that they feel it is important to be pre-allocated a seat near the exit, that is something that Qantas can accommodate; true?---Yes."
Outline of Qantas's submissions
Mrs Cameron's submissions raise matters which were substantially canvassed on the appeal rather than "new" matters. It was always in issue whether the so-called "duty to warn" had any relevant content, or did produce, or was likely to produce, any modification of the behaviour of persons to whom any warning should have been extended.
The duty to warn found by Davies J differs from that pleaded and from that found by Beaumont J. It cannot be inferred that even a warning of the kind found by Davies J would have caused group members to modify their behaviour in the absence of evidence to that effect or evidence justifying an inference to that effect.
RELEVANT COURSE TO DATE OF THE PROCEEDINGS AT TRIAL AND ON APPEAL
Pleadings
Paragraph 59 of Mrs Cameron's fifth amended statement of claim pleaded, relevantly, that the loss or damage was occasioned to the ten group members by Qantas's negligence and/or breach of duty consisting of, relevantly, its failure to give the para (d) warning and the para (e) warning to ticket holders or prospective passengers. In para 29 of its defence, Qantas denied these allegations, thereby putting in issue the causal link between the failure to give the pleaded warnings and loss or damage.
Parties' statements of issues, facts and contentions
Both Mrs Cameron and Qantas filed statements of issues, facts and contentions. I set out para 3 of Mrs Cameron's above. I make these observations about it. First, there is not a word in it to suggest a warning expressly directed to those suffering from predisposing conditions. Secondly, the paragraph was not apt to suggest an intention to depart from the particulars of negligence in para 9 of Mrs Cameron's fifth statement of claim. Thirdly, the system described in sub-para 3 (b) is one directed to enabling any passenger, not only the vulnerable, to secure a seat in which he or she would not be exposed to cigarette smoke.
In para 4 of its own statement of issues, facts and contentions, Qantas said this:
"The Applicant and group members knew that there would be smoking on board and if they turned their minds to the matter that their seats might be near seats in which smoking was permitted. The action of smoking was not that of the Respondent and the Respondent had no duty to warn the Applicant and other group members of the activity because the knowledge of the Applicants as to smoking on board required no warning."
This can be paraphrased as: "There was no duty to give the pleaded warnings because there could not be a duty to tell the group members that which they already knew."
Course of the trial
At the trial it was put to some or all group members in cross examination that they had known that smoking was permitted on the aircraft and that some smoking and non-smoking seats would be contiguous. It was, of course, not incumbent upon senior counsel for Qantas to cross examine the group members on what course they would have followed if the pleaded warnings had been given.
In the case of Ms Jacoby, counsel for the group members asked what she would have done if she had known that she was to be seated immediately adjacent to smoking seats (AB 181K). Although this was not to ask what she would have done if a pleaded warning had been given, it suggests, at least, that it was appreciated that causation (in more than the narrow physical sense described earlier) was in issue.
Reasons for Judgment of the trial Judge
Under the heading "Did the breach of duty cause damage?" the learned trial Judge dealt only with physical causation. He had held under the heading "Breach of duty" that discharge of the duty of care incumbent on Qantas required, and would have been satisfied by, the giving of a warning "that, although a passenger might be allocated a seat in an area where smoking was not permitted, there was still a risk of exposure to smoke drift from smoking in other areas of the aircraft" (AB 857F-H). This is, in substance, the para (e) warning.
Qantas's notice of appeal
In its notice of appeal, Qantas raised the issue of physical causation but not the issue of causation on which I based my conclusion in my earlier Reasons for Judgment. It did give as grounds of appeal that his Honour erred in finding that Qantas owed a duty of care to the group members in relation to passive smoking or its effects (ground 11) and in finding that it was reasonable to expect that Qantas would give the para (e) warning (ground 12).
Written submissions on the hearing of the appeal
Qantas's written submissions on the hearing of the appeal contained the following:
"13The finding [of a duty to give the para (e) warning] could not, on its own terms, apply to those members of the group such as Mrs Cameron (AB 768 L - M), Mr Hooper (AB 772 O - P), Mr Lewis (AB 775 D - E) and Mr Millane (AB 796 E - F) who were seated in a smoking zone.
14In relation to those members of the group who were seated, to their knowledge, in non-smoking, there was no finding of fact that they were not aware of the possibility of smoke drift either at all or at the time of check-in or boarding. Indeed it was or would have been obvious, the flights being smoking flights, that there might be smoke drift.
15This is not a case of, and there is no evidence to suggest, special knowledge on the part of the appellant giving rise to a duty to warn nor of ignorance or special susceptibility on the part of a plaintiff giving rise to such a duty. The fact that cigarette smoke goes into the air and spreads is an everyday fact of which everyone is aware."
Mrs Cameron's submissions in reply contained this:
"13..., adequate warning would enable passengers to take a number of steps to protect their health and comfort. In addition to the options specifically mentioned by his Honour at AB 857 K-M ["the taking of pre-medication by way of preparation for the flight, or choosing a smoke-free flight"], other steps could be taken provided adequate information was provided at an appropriate time, e.g. obtaining pre-allocated seating in a non-smoking area, providing a medical certificate to secure appropriate seating, upgrading to another class or flying with another airline. Conceivably, this information should be made available even at the time of making a reservation so that a potential passenger would be fully informed of the risks involved and options available at that time."
Qantas's submissions in reply contained this:
"4.It is also to be noted that, since the respondent's case at first instance was not conducted on the footing of a breach of a duty of care owed to particular passengers, the appellant did not adduce evidence as to its system for passengers with medical conditions. It is touched on at AB 263 F - S [Mr Handley there gave evidence of Qantas's system for providing for passengers with infants and passengers with medical conditions]."
Oral submissions on the appeal
I think it desirable to quote at some length from the transcript of the hearing of the appeal, in order to demonstrate the extent to which there was canvassed, admittedly in the context of the question of the nature and implications of the duty of care owed by Qantas, the inaptness of the pleaded duties to warn, to modify passengers' behaviour.
In his oral submissions before us on the hearing of the appeal, senior counsel for Qantas said this:
"So what we say is that all of these people knew that they were getting onto a plane in which smoking was permitted, because they asked for non-smoking seats. Clearly, they did not wish to be seated with smokers, because they sought something different. But a moments [sic] reflection on their part must have alerted them to the fact that there would be some parts in the aircraft at which the two types of seating were contiguous, and they had no guarantee that they would not be seated in that part of the no smoking section which was contiguous to the section in which smoking was permitted." (T 16)
The inutility of the para (d) warning was taken up with senior counsel appearing for Mrs Cameron on the hearing of the appeal in the following passage:
"DAVIES J: ... It could have been put that there was a duty to warn that persons who are affected by smoke or may have their position aggravated by the air conditioning and the barometric pressure in aircraft.
MR DOWNES: Yes, sure.
DAVIES J: And persons who feel that they will have a problem should notify the airline when booking or they should take precautions ... - it would be much easier to run a case with respect to people who had asthmatic or other problems which were known to be affected by passive smoking, and in the case of a person who had a known condition, one would think it would be very easy to find a duty of care [by] Qantas which after all is the national carrier providing the main means of travel between Australia and international destinations for Qantas to take some care for the protection of people ... of whom it was informed they had a condition which was susceptible to passive smoking. But ... - there is not a word said about this in your statement of claim, is there?
MR DOWNES: Well, your Honour, the warning that was,
I think, principally contended for was a warning that you may find yourself, notwithstanding the fact that you have asked for a non-smoking seat, either in a smoking seat or in a seat near to a smoking seat which though labelled technically non-smoking is, in effect - is just as subject to tobacco smoke as the smoking seat. That is the warning that I think was contended for rather than your Honour's suggestion which we would respectfully submit is open within the pleading once warnings are raised, that is, a warning - - -
DAVIES J: But it is not commercially practicable for Qantas to put up large notices 'Beware, you may be affected by the smoke in our cabins'. ... - unless this was imposed upon all airlines or imposed upon a particular airline, I cannot imagine an airline doing it. What it ... could do is to make sure that those people who have a condition ... likely to be affected by it are given a proper opportunity of bringing that to Qantas's notice and that Qantas will have in place a proper system of ensuring that if they do have a condition, they will be given a seat, an allocated seat. Now, that ... is a simple sort of thing and at least copes with all those people.
MR DOWNES: Yes
DAVIES J: And there were - I would think there were many of them, many people who are affected who have a susceptibility to asthma or bronchitis or that sort of condition. There are many in the community, but if that were in place, then there would be a notification and a dealing with it ..." (T 41-42)
The same subject was taken up with senior counsel for Mrs Cameron at T 43-44 in the following exchange:
"DAVIES J: Can I just stop you on this aspect ... it is troubling me ... the way the case was framed. It was framed ... on behalf of people who, if they said they wanted a non-smoking seat should have got it, ...
MR DOWNES: Yes, your Honour.
DAVIES J: ... I do feel that a much stronger case can be put up in relation to passengers who have been notified by Qantas [sic - 'who have notified Qantas'] of a health problem.
I do not really find that in the statement of claim, and I am just wondering if ... one can get this out of the case as ... put to his Honour. It seems to me the general proposition that ... any passenger who just asks for non-smoking seat, whether there is a medical reason for it or not, has to be given a non-smoking seat, or given a warning - or given a health warning, can fall down .... One of the problems with a warning is, as Mr Hely has already said, that most of these passengers knew there could be some problem with smoke in the cabin, which is why they asked for a non-smoking seat."
Mr Downes QC's response concluded with the following passage:
"The thrust or the main part of what your Honour was putting to me was associated with the warning situation. I do not wish to repeat myself unduly but there are as we would see two types of warning that one could have. One is to take note that you might be at risk of discomfort if you board the plane and sit in a smoking seat. The other type of warning is one which says we accept you know that but we want to put you on notice that even if you think you are going to get a non-smoking seat you might end up getting a smoking seat. Those warnings, we would respectfully submit, are appropriately made and would in every case, we would respectfully submit, lead to a reaction. We have pointed out in our written submissions some of the things that persons who were given that warning might do. But plainly, and this is within the way the case was conducted, there is another way that the duty could have been answered and those are the other alternatives that I put.
........ ........ ........ ........ ........ ........ ...
Finally - but I think I perhaps have already covered this - one is not just dealing with the asthmatic, one is dealing with the whole bulk of the population, who are entitled to be protected from intrusive cigarette smoke which is going to have some effect on everyone, even if it is just smelling the tobacco. They are entitled to protection from that physical effect if they wish to be protected from it.
Now I think to an extent these matters overlap and things that one says on one issue are relevant to the other ..." (T 45)
The same subject was further taken up with senior counsel for Qantas with whom the following exchanges occurred:
"DAVIES J: ... let us put on one side the whole group of 250 people who might say: I prefer to go into a non-smoking seat. Put those on one side. But let us turn upon those people who know either because of a history of asthma or bronchitis or some other condition that they have a susceptibility and a liability to medical problems if they are exposed to too much in the line of smoke. Now, you would think that Qantas would have a responsibility to those persons to provide a system whereby they can be put in a part of the aircraft where they will be at least risk.
MR HELY: This is a case which depends not upon the request for a no-smoking seat but ... upon being subjected to a condition that makes you particularly susceptible to exposure to smoke.
DAVIES J: I understand that.
MR HELY: And it is a case that has never been put." (T 73)
The learned presiding Judge then further raised with Mr Hely QC a possible shortcoming in Qantas's system in not inviting persons who had a medical problem to request a non-smoking seat and having one available. The exchange continued as follows:
"DAVIES J: ... Now, I must say it seems to me that Qantas because it is the national carrier and these days it is compulsory for people to travel, that Qantas really is under a duty to provide a system whereby people with a medical problem will be alerted and will be able to notify the airline and will be given a seat which even if it is not perfect
is at least a reasonably safe seat in an aircraft.
MR HELY: Can I respond?
DAVIES J: Yes.
MR HELY: First, that case was never pleaded, never put, and it has as its axis people who have medical problems ... the case here which was pleaded and the case which was put had no such access [sic - axis] it was totally general in its application flowing either from permitting smoking on aircraft or from not responding to a request that a person be given a no smoking seat. If one has a look at ... pages 16 and 17 - one can see how the case in negligence is pleaded and ... no hint or suggestion of a case of the type that your Honour articulates for my consideration is to be found there.
LINDGREN J: There is a reference, Mr Hely, on page 6 to the causing of health problems but again that is expressed in general terms. In other words, they are problems caused to everybody.
MR HELY: ........ ........ ........ ........ ........ ...
So, that, you have a claim in negligence pleaded in a particular way which does not on any fair or even generous reading of it encompass the type of case that Davies J puts to me and it is a case ... for which there is at best a tepid affection on the part of those propounding it at the trial and we submit is just too late to raise that sort of issue on an appeal.
DAVIES J: It really has developed beyond that, has it not, and your notice of appeal first directs the court to the circumstances of something like 5 or 6 of the claimants and we have got to look at the individual circumstances and when you look at the individual circumstances you see that there were some of them, such as Dr Thomas who had a known health problem.
MR HELY: Second, not one of these applicants gave evidence to the effect that they did not know that exposure to environmental tobacco smoke on an aircraft might be more severe than exposure to environmental tobacco smoke in other circumstances." (T 74-75)
Mr Hely QC then made the point with which I dealt in the course of a digression in my earlier Reasons, namely, that
there had been a Qantas timetable in evidence before the trial Judge, not reproduced in the appeal book, in which there was a section headed "Air Travel for People with Disabilities" which had not been explored because the case had not been put as one of a duty owed to people with disabilities. Mr Hely QC's submission in this respect was as follows:
"You just cannot, in my respectful submission, in effect pick over the carcass of a trial and try to put together for the first time what might be a good case - what might not be a good case; I do not know; it has never been investigated - when it has not been exposed or put before." (T 75-76)
(Reference might have been made to Water Board v Moustakas (1988) 180 CLR 491.)
The following further passage in Mr Hely QC's submission is relevant:
"My respectful submission is that the case which your Honour [Davies J] articulates is perhaps a much more focused, and certainly a much more special, case than the applicant ever sought to put. It has as its commencing point perhaps the needs of a modest class of people, specific and peculiar." (T 76)
He [the trial Judge] has not said: Tell them that the consequences of exposure to smoke drift may be if you are [a] normal person, nothing, if you are an asthmatic, this, in these circumstances and if you are something else, something different in different circumstances. So we respectfully submit that the court should resist the temptation to proceed down the path that your Honour has identified. Even if one were to proceed down that path we would submit that there is just an insufficient evidentiary foundation to come to any particular conclusion." (T 77 - emphasis supplied)
The learned presiding Judge took up the same question with Mr Downes QC in reply and the following exchanges occurred:
"DAVIES J: Your problem is just that people who merely find it an irritation do not suffer health problems so there is no necessary duty to those because of all the complexities of booking and you did not show that Qantas failed to do something which ... reasonable airlines were doing and it accordingly follows that people, although they might suffer a slight irritation from smoking will simply have to put up with it if they go on a smoking flight, but you can accept that, I know you do not want to, ... and you can distinguish that [from] a case where people really have a medical problem - - -
MR DOWNES: Yes, I understand.
DAVIES J: - - - and Mr Hely is saying, you did not put the case of a limited class of people such as Dr Thomas who did have a medical problem and/or did have ... an adverse medical reaction to smoke.
MR DOWNES: ........ ........ ........ ........ .......
So even although the duty may only be owed to people who are asthmatics because Qantas does not know when someone buys a ticket, asks for a no smoking seat, whether that person is an asthmatic or not [,t]he only way it can discharge the duty is by giving the red light warning, if that is the way in which the duty is found to be, to everyone." (T 82)
On Mrs Cameron's motion, the parties have been afforded by the Court full opportunity to make the submissions which they would make if leave to make further submissions were granted.
REASONING
It should be acknowledged at once that the issue of the causative effect of the failure to warn on the particular
facts of the ten group members' cases was not addressed in the reasons of the trial Judge, or raised in the notice of appeal or, except obliquely in a sentence emphasised above, in the submissions before this Full Court on the appeal. However, in my view, this is not the end of the matter.
Although the factual issue of the causative effect of the failure to warn was not addressed in the trial Judge's judgment, having regard to the pleadings, the statements of facts, issues and contentions, and the way in which the case was conducted before him, it would have been open to Qantas to submit, and to his Honour to decide, that the group members failed because they had not led evidence on that issue. Moreover, a conclusion by this Full Court that the group members' evidence did not permit a finding that the failure to give the para (e) warning was causative of their loss is not inconsistent with the learned trial Judge's acceptance of their evidence and does not intrude upon his role.
It has not been submitted that on the evidence it was open to the trial Judge to infer that if the para (e) warning had been given, the group members would probably have avoided the loss and damage complained of, and I remain of the view that it was not. Rather, Mrs Cameron's submission is that it is procedurally unfair that the appeal be allowed on that ground because she could have applied for leave to re-open with a view to the leading of evidence from the group members on the issue. In my view, on the basis of the pleadings, the
statements of facts, issues and contentions, and the course of the hearing before the trial Judge, such an application would have had no prospect of success.
As has been seen, on the hearing of the appeal, the inutility of the warnings pleaded was debated extensively. Qantas's submission was, in effect, that those warnings were not apt to modify behaviour because they did no more than draw intending passengers' attention to the obvious. In other words, Qantas submitted that their behaviour would not be found to be altered by, relevantly, the para (e) warning. I held that on the evidence it could not be found that the behaviour of the ten group members would in fact probably have been altered by such a warning. While the question what is required to discharge a duty of care in a particular case and the factual question of causation of loss in that case are conceptually different, they are not unrelated and I think that for the reasons stated, the latter question was, in substance, raised on the hearing of the appeal.
I proceed now to consider the position which would obtain if this Court's orders of 17 May were set aside to permit further argument as sought by Mrs Cameron. I would, in the first place, seek to state more expansively certain things said in my earlier Reasons for Judgment. As I there said, "the para (e) warning does no more than draw attention to certain matters which are inherent in the para (d) warning" (at 71), the latter being a warning which, I held, would not satisfy
Qantas's duty of care. I would add that the para (e) warning draws the attention of a person who is invited to express a preference between "smoking" and "non-smoking" seats, to aspects of the obvious; that Qantas's submission should be accepted that it is not to be expected that an intending passenger suffering from a predisposing condition would take avoidance action as a result of such a bland "warning"; and that a person reading the para (e) warning, apart from being somewhat mystified, would think that it was given merely for more abundant precaution to protect Qantas against the accusation by any passenger that he or she would necessarily be located so as not to be affected by ETS.
I would then go further and decide that which I previously did not decide, namely, that the duty incumbent on Qantas to give a warning for the benefit of passengers who were subject to predisposing conditions which I held existed, did not require, and would not be satisfied by, the giving of the para (e) warning. In order to make clear the distinction between the kind of warning for the benefit of the vulnerable which I held Qantas was obliged to give on the one hand, and the para (e) warning on the other hand, I would make the following further observations about the former. Firstly, although necessarily given to all intending passengers, it would be a warning which would, in one form or another, refer expressly to medical conditions known to be susceptible to exacerbation by ETS in the confined and artificial environment of an aircraft cabin. This would cause sufferers from such conditions to understand
that the warning was directed specially to them and for their benefit. Secondly, it would refer to the possibility of exacerbation of such a medical condition and of associated discomfort and illness, arising from ETS on the aircraft. Thirdly, it would draw attention to means of obviating that possibility, such as the taking of a different flight on which smoking is not permitted and the taking of pre-flight or in-flight medication. The warning might repeat or refer to the section "Air Travel for People with Disabilities" in Qantas's timetable to which I referred in my earlier Reasons for Judgment.
A warning generally of the kind to which I have referred is quite different from the para (e) warning and, unlike it, would be apt to modify the behaviour of a vulnerable member of the travelling public.
The result of a decision that Qantas's duty to warn did not require, and would not have been satisfied by, the giving of the para (e) warning would have been that none of the particulars of negligence (paras (a) to (e) inclusive) would have been established.
CONCLUSION
In my view, for all the foregoing reasons, the orders of 17 May were not made on a ground which was not in substance argued on the appeal in circumstances where an injustice to the group members would be done, or might reasonably be seen
to be done, if those orders were not now set aside to permit the making of further submissions. Accordingly, Mrs Cameron's motion should be dismissed. In the result, the orders of the Full Court made on 17 May are left intact. The costs of the motion can be the subject of submissions at the time when submissions are made as to the costs of the appeal.
I certify that this and the preceding 24 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:14 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) Nos. NG 521 of 1995
NG 556 of 1995
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
Matter No. NG 521 of 1995
BETWEEN:QANTAS AIRWAYS LIMITED
(A.C.N. 009 661 901)
Appellant
AND:LEONIE CAMERON
Respondent
Matter No. NG 556 of 1995
BETWEEN:LEONIE CAMERON
Appellant
AND:QANTAS AIRWAYS LIMITED
(A.C.N. 009 661 901)
Respondent
CORAM:Davies, Lindgren and Lehane JJ
PLACE:Sydney
DATE:14 August 1996
REASONS FOR JUDGMENT
LEHANE J: I have had the advantage of reading the reasons for judgment of Davies J and those of Lindgren J. I agree with the orders which their Honours propose and, but for some hesitation about one matter, agree with the reasons of Lindgren J.
I do not think it is necessary, in order to reach a decision on this motion, to consider what particular warning Qantas' duty of care required or, to put it perhaps more accurately, what warning Qantas might have given which would have satisfied its duty of care in relation to the health and safety of passengers. I prefer not to take that step. As this case illustrates, precise separation of the issues of duty, breach and causation may not
always be easy and is not always achieved. Like Lindgren J, I was and remain of the view that there is no foundation in the evidence for a conclusion that, if Qantas breached a duty of care by failing to give the warning pleaded (as the trial Judge in effect held to be the case), that breach caused the damage which the group members suffered. That element of causation was one which the applicant had to prove, and she did not do so.
In those circumstances, and given the matters to which Lindgren J has referred in detail relating to the pleadings, the statements of issues, facts and contentions and the way in which the case proceeded both at first instance and on appeal, I do not think that the majority decision on the appeal, to which I was a party, involved the procedural unfairness of which Mrs Cameron complains.
I certify that this and the preceding page is a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated: 9 August 1996
Heard: 24 June 1996
Place: Sydney
Decision: 14 August 1996
Appearances: Mr P G Hely QC with Mr A Robertson SC of counsel instructed by Dunhill Madden Butler appeared for the appellant on the first appeal, respondent on the second appeal (Qantas).
Mr G K Downes QC with Mr N F Francey of counsel instructed by Cashman & Partners appeared for the respondent on the first appeal, appellant on the second appeal (Mrs Cameron).
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