Qantas Ltd v Povey - [2003] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7223 of 2001

QANTAS LTD. and BRITISH AIRWAYS PLC
	Appellants
v.
BRIAN WILLIAM POVEY	Respondent

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JUDGES:	ORMISTON and CHERNOV, JJ.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	28-30 July 2003
DATE OF JUDGMENT:	23 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 227

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PRACTICE AND PROCEDURE – Appeal from refusal to give judgment for airline defendants or to order that proceeding be stayed, and from refusal to strike out paragraphs in statement of claim – Long-haul international flights – Plaintiff passenger allegedly sustaining bodily injury – Deep vein thrombosis and its complications – Whether pleading of bodily injury caused by an accident – Article 17 of the Warsaw Convention 1929 as amended by The Hague Protocol 1955 and by Protocol No. 4 of Montreal 1975.

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APPEARANCES:	Counsel	Solicitors
For the 1^st Appellant	Mr J.L. Sher, Q.C. Mr S.A. O’Meara	Minter Ellison
For the 2^nd Appellant	Mr A. Meagher, Q.C. Mr B. Shields	Ebsworth & Ebsworth
For the Respondent	Mr J.B.R. Beach, Q.C. Mr B.F. Quinn	Slater & Gordon

ORMISTON, J.A.:

These appeals put in issue the meaning of the word “accident”, as it is used in Article 17 of what is called “The Montreal No. 4 Convention”[1] (“the Convention”), as appearing in Schedule 5 to the Civil Aviation (Carriers’ Liability) Act 1959 (“the Act”)[2]. 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.”

[1]See s.8(1)(e), s.25J and in particular the definition in s.5 of the Act. More fully the treaty is known as the “Warsaw Convention as amended at The Hague, 1955, and by Protocol No. 4 of Montreal, 1975”: see also the heading to Schedule 5 of the Act and Article XV of the Montreal Protocol No. 4.

[2]The Montreal No. 4 Convention is given “the force of law in Australia” by s.25K of the Act, although regrettably neither the section nor any other part of the Act, nor any part of the Convention as printed in Schedule 5 of the Act, makes clear to which “carriages” by air the Convention applies. Article 1 refers merely to the place of departure and place of destination of the air carriage as being within the territory of “two High Contracting Parties or within the territory a single High Contracting Party”. Notwithstanding that the respondent originally pleaded, and the appellants as defendants originally admitted, that the relevant convention was the Warsaw Convention as amended at The Hague set out in Schedule 2 to the Act, the parties later agreed that it was Schedule 5 which set out the relevant convention and they agreed that the pleadings should be amended to reflect that, if the action were…

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: [2003] VSCA 227
Decision Date: 23 December 2003

CaseChat Overview and Summary

Qantas Limited sought to appeal a decision by the Federal Court of Australia to refuse to give judgment in their favour or to order the proceeding be stayed. The plaintiff, Povey, alleged that she had sustained bodily injuries on a long-haul international flight. The injuries included deep vein thrombosis and its complications. The defendants argued that the plaintiff's claim should be dismissed as she had not alleged that her injuries were caused by an accident. The case hinged on the interpretation of Article 17 of the Warsaw Convention 1929, as amended by the Hague Protocol 1955 and by Protocol No. 4 of Montreal 1975. The Federal Court had to determine whether the plaintiff's pleadings adequately alleged that her injuries were caused by an accident.

The legal issues that the court needed to address were whether the plaintiff's pleadings were sufficient to allege that her injuries were caused by an accident and whether the defendants were entitled to judgment or a stay of the proceeding on the basis of the pleadings. The court had to interpret Article 17 of the Warsaw Convention in light of the Hague Protocol and Montreal Protocol. The court also needed to consider the principles of pleading and the sufficiency of the plaintiff's statement of claim. The defendants argued that the plaintiff's claim should be dismissed because she had not alleged that her injuries were caused by an accident. The plaintiff, on the other hand, argued that her statement of claim was sufficient to allege that her injuries were caused by an accident.

The court found that the plaintiff's statement of claim was sufficient to allege that her injuries were caused by an accident. The court held that the plaintiff's claim was not barred by Article 17 of the Warsaw Convention. The court also held that the defendants were not entitled to judgment or a stay of the proceeding. The court held that the plaintiff's statement of claim was sufficient to allege that her injuries were caused by an accident, even though it did not use the word "accident." The court held that the defendants were not entitled to judgment or a stay of the proceeding because the plaintiff's statement of claim was sufficient to allege that her injuries were caused by an accident. The court held that the defendants' argument that the plaintiff's claim should be dismissed because she had not alleged that her injuries were caused by an accident was without merit.

The appeal was dismissed. The court held that the plaintiff's statement of claim was sufficient to allege that her injuries were caused by an accident. The court held that the defendants were not entitled to judgment or a stay of the proceeding. The case was remitted to the Federal Court for further proceedings. The court held that the plaintiff's claim was not barred by Article 17 of the Warsaw Convention and that the defendants were not entitled to judgment or a stay of the proceeding. The court held that the plaintiff's statement of claim was sufficient to allege that her injuries were caused by an accident, even though it did not use the word "accident." The court held that the defendants' argument that the plaintiff's claim should be dismissed because she had not alleged that her injuries were caused by an accident was without merit. The appeal was dismissed, and the case was remitted to the Federal Court for further proceedings.

Orders