Yeomans v Carbridge Pty Ltd (No 2)
[2012] NSWDC 20
•09 March 2012
District Court
New South Wales
Medium Neutral Citation: Yeomans v Carbridge Pty Ltd [2012] NSWDC 20 Hearing dates: 29/02/2012 Decision date: 09 March 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 61
Catchwords: Identity of carrier and agent under Carriage by Air legislation. Scope of agency. Legislation Cited: Civil Aviation (Air Carriers Liability) Act 1967 (NSW)
Civil Aviation (Carriers Liability) Act 1959 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Guadalajara Convention 1961
Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12 1929).Cases Cited: Air Link Pty Ltd v Paterson (2009) 75 NSWLR 354
Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429
Kotsambasis v Singapore Airlines Ltd 148 ALR 498
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Girard v American Airlines United States District Court, 2003 WL 21989978 (E.D.N.Y.)
Johnson v Allied Eastern States Maintenance Corporation 488 A.2d 1341 (DC cir. 1985)Texts Cited: Shawcross and Beaumont Air Law (Loose leaf Butterworths LexisNexis) Category: Separate question Parties: Wendy Yeomans (Plaintiff)
Carbridge Pty Ltd (Defendant)Representation: K Nomchong and E James (Plaintiff)
C Withers (Defendant)
Cheney & Wilson Solicitors (Plaintiff)
Wotton & Kearney (Defendant)
File Number(s): 2010/00146047
Judgment
By a Notice of Motion dated 21 March 2011 the defendant endeavoured to have the plaintiff's claim dismissed. I heard the Motion on 12 December 2011 and gave my reasons for dismissing it the following day.
The background is set out in the earlier judgment, which should be read together with these reasons. I think it worth repeating the following:
(a) On 23 August 2007 the plaintiff flew from Orange to Sydney on a Regional Express Airlines ("Rex") flight, which landed at Sydney Airport. The flight number was ZL 167.
(b) Regional Express Pty Limited is the corporate name of Rex. It is a subsidiary of Regional Express Holdings Limited ("REH").
(c) Upon arrival in Sydney it was necessary for the passengers to travel by bus from the aircraft to the terminal.
(d) The bus was owned and operated by the defendant. The agreement to provide surface transport was between the defendant and REH.
(e) When entering the bus the plaintiff was allegedly injured as a result of a defect in the steps and perhaps the door of the bus.
(f) On 19 May 2010 the plaintiff commenced these proceedings against the defendant to recover damages allegedly caused by the defendant's negligence.
(g) The defendant says the proceedings are out of time because the plaintiff's rights were extinguished at the conclusion of two years from the date of injury under the provisions of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the "Commonwealth Act"), in particular Sections 33(3) and 34.
(h) The Commonwealth Act is applicable because of the provisions of the Civil Aviation (Air Carriers Liability) Act 1967 (NSW) (the "NSW Act").
The final orders I made on 13 December 2011 included an order that separate questions be determined pursuant to Rule 28.4 of the Uniform Civil Procedure Rules 2005 .
The present hearing has been concerned with the separate questions. The agreed questions are set out in a document dated 13 December 2011. The document also includes a third question that was proposed by the plaintiff. The subject of this question was dealt with in my earlier judgment but I did give leave for the issue to be re-agitated. Ultimately the defendant did not oppose the plaintiff arguing the issue again.
Question 1 - The identification of the "carrier" or "carriers" for the purposes of the Civil Aviation (Carrier's Liability) Act 1967 (NSW) and the Civil Aviation (Carrier's Liability) Act 1959 (Cth) of the plaintiff on flight ZL 167 from Orange to Sydney on 23 August 2007.
The underlying purpose of this question is not to decide if Rex or REH was the carrier. One of these entities obviously was. The real issue is whether the defendant was also a carrier.
The defendant submitted that more than one carrier could perform the carriage of a passenger under Section 28 of the Commonwealth Act. There is no doubt that many airline tickets envisage successive carriers where a passenger changes flight and moves from one airline to another.
The defendant, however, went further and submitted that in addition to successive carriers there could also be concurrent carriers, that is two carriers carrying the passenger at the same time. On this basis, said the defendant, when the plaintiff was boarding the bus she was being carried by both the airline and the defendant pursuant to the NSW and Commonwealth legislation.
In support of its position the defendant referred me to the decision of the NSW Court of Appeal in Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429. The legislation being considered includes the amendments made by the Guadalajara Convention 1961, which introduced the concepts of an " actual carrier" and a " contracting carrier" . The Warsaw Convention, unamended by the Guadalajara Convention, talks only of a carrier.
The defendant submitted that the Guadalajara amendments assisted its argument that there could be concurrent carriers.
The defendant said that I should apply the definition of carrier which appears in Section 41B of the Commonwealth Act. A carrier " means a person engaged, or proposing to engage, in a passenger-carrying operation."
The plaintiff responded that this would be an error because this definition was in Part IVA of the Act whereas Section 28, which is the section giving rise to the right to compensation, is in Part IV of the Act. The plaintiff submitted that had the legislature intended the definition to be used in Part IV then it would have clearly stated that to be the case. Rather, the plaintiff submitted that the ingredients of a carrier should be derived from Section 4 of the NSW Act and should therefore include the following elements:
"(a) a person or entity who is the holder of an airline licence or a charter licence;
(b) who is carrying an airline passenger;
(c) in the course of commercial transport operations;
(d) under a contract of carriage;
(e) between one place in NSW to another place in NSW." (Plaintiff's written submissions paragraph 23.)
The plaintiff then submitted that as the defendant was not the holder of an airline or charter licence it could not be the carrier.
I disagree with the defendant. The plain wording of the definition in Section 41B obviously encompasses passengers being carried in a bus by the defendant. But it also includes almost every person transporting a passenger by any means. This was obviously not intended by the legislature. What is missing in the defendant's interpretation is that the Act is " An Act relating to Carriage by Air ". It simply could not apply to any other form of carriage unless specifically stated to be so applicable. Thus liability under Section 28 is extended to the " operations of embarking or disembarking ", as extensions of the carriage by air and consistent with the obligation of an air carrier to deliver passengers from terminal to terminal.
If the air carrier is liable for the extended land transport then it follows, in my view, that it remains the carrier during this transport to the exclusion of the bus company that happens to be providing the means (eg. a bus) of transport.
In relation to concurrent carriage, the authors of Air Law , Shawcross and Beaumont (loose-leaf edition Butterworths LexisNexis) , refer to a concept of combined carriage but noticeably make the point that: "there is combined carriage wherever, in the case of passengers, carriage other than on board the aircraft or in the course of any of the operations of embarking or disembarking is undertaken." (paragraph 345). On my findings the plaintiff's accident occurred in the course of disembarking.
I also do not think the Guadalajara amendments, if applicable in NSW, assist the defendant. The introduced distinction between an actual carrier and a contracting carrier was made to cater for a situation where, as here, the contract is made between the passenger and a company which uses another company to perform the carriage. Thus the plaintiff has contracted with REH, which has used Rex to carry her. The amendments do not affect the requirement for carriage by air subject to the extension to embarking and disembarking.
This interpretation is clear from the definitions of actual and contracting carriers in the Convention. They refer to carriage under the Warsaw Convention, which is concerned with carriage by air. The authors of Air Law state at paragraph 129.6: " Broadly the object of the Convention was to give to an actual carrier the same rights and liabilities as a contracting carrier under the Warsaw Convention system."
Thus, here, Rex is given the same rights and liabilities as REH. The Guadalajara amendments do not extend those rights to carriage by land outside the extension attached to the air carrier in respect of embarking and disembarking.
In the light of my rejection of the defendant's submissions I do not think it necessary to make any finding on the plaintiff's preferred definition of a carrier. In practical terms my finding is consistent with the plaintiff's position although I would not like to specifically state that a carrier must include all of the ingredients set out in paragraph 9 above.
The defendant next submitted that the contract of carriage with the airline was, by virtue of its terms, also a contract with the defendant. On this basis the defendant said it should be treated as the carrier. The contract with the airline is the E-ticket issued to the plaintiff (Exhibit 4). Under Section 02 it refers to the "Conditions of Carriage" which appear in Section 07. The use of a magnifying glass enables the identification of the following relevant passages (or at least most of them):
"1. CARRIAGE
The Passenger flies subject to the Ticket Terms and, to the extent applicable, the (illegible) If there is a conflict between any of the parts of the Ticket Terms, those of (illegible) Ticket Terms set out in this document will prevail."
"DEFINITIONS:
The following definitions apply unless the context requires otherwise:
(a) "Carriage" is equivalent to "transportation"'
(b) "Company" means Australiawide Airlines Limited trading as Regional Express (ABN 18 099 547 270) and includes its officers, servants, agents, employees and, where applicable, any person with whom the Company has arranged to undertake the carriage or ancillary services or its officers"."
The defendant submitted that the carriage of passengers from the aircraft to the bus was an "ancillary service" .
The plaintiff, not surprisingly, had not read the conditions of carriage. As far as she was concerned she had bought a ticket from Rex and any contract of carriage was with Rex. The plaintiff further pointed out that the conditions of carriage do not anywhere state that there is a contract between the company (as defined) and the passenger. In addition, the reference on the first page (under Section 02) to the rules and conditions is concerned with specific matters not including the identity of the contracting parties. The note does not say, for example, see the "Fare Rules and Conditions of Carriage" for the terms and conditions of the ticket. The plaintiff further submitted that the defendant was not necessarily providing an ancillary service.
I do not think the contract between the plaintiff and REH can render the defendant to be a carrier under the Commonwealth Act. Firstly because no matter what the contract says, for the reasons I have given above, the defendant cannot be such a carrier.
Before stating my second reason for rejecting the defendant's argument I will quote this passage from the judgment of Hodgson JA in Air Tahiti Nui:
"[28] The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract."
Secondly then, the purchase of an E-ticket including an almost illegible reference to a company and the definition of that company would not in my view extend, from the point of view of the plaintiff, to an acceptance by her of any contract with the defendant. As far as she was concerned, looking at the matter objectively and in the " factual matrix " of the purchase of an airline ticket, the intention of the plaintiff was to contract with REH (in her mind probably with Rex) but certainly not with a bus company of which she had never heard and which operated buses at Sydney Airport.
The answer to Question 1 therefore is that the defendant was not the carrier of the plaintiff in the terms framed by the question.
If it was necessary to decide which of Rex or REH was the carrier I would come to the following conclusion. Under the Guadalajara amendments REH would be the contracting carrier and Rex would be the actual carrier. In argument however, unless I misunderstood counsel, it was suggested that the Guadalajara amendments did not apply in NSW. In that case I would find that REH was the carrier and Rex was the agent of the carrier. The ticket was sold by REH for travel on board a Rex aircraft (Exhibit 4). The application of the principles stated by Hodgson JA in Air Tahiti Nui (paragraph 24, above) lead to this conclusion.
Question 2 - The determination of whether or not in providing ground transport for the passengers of flight ZL 167 (including the plaintiff) to the terminal at Sydney Airport on 23 August 2007, the defendant was acting as:
(a) An agent or servant of the carrier or carriers within the meaning of s33 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth).
(b) If the answer to subparagraph (a) is yes, whether in transporting the plaintiff from flight ZL 167 to the terminal on 23 August 2007, in the circumstances in which the plaintiff suffered an alleged injury, the defendant was acting within the scope of its employment or authority.
(c) If the answer to subparagraph (a) is no, whether in transporting the plaintiff from flight ZL 167 to the terminal on 23 August 2007, in the circumstances in which the plaintiff suffered an alleged injury, the defendant was acting as a carrier of the plaintiff for the purposes of s 28 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth).
The defendant submitted that the origin of its agency lay in the terms of the International Air Transport Association ("IATA") Standard Ground Handling Agreement 1998. This Agreement had been adopted by the defendant and by REH and it identified the nature of the services that the defendant was to provide to REH. These services included the following:
" Section 11
Surface Transport
11.1 General
11.1.1 Make all necessary arrangements for the transport of:
(a) Passengers
(b) Baggage
(c) Cargo and/or mail between:
(1) Airport and town terminal.
(2) Airport and other agreed points.
(3) Separate terminals at the same airport."
The first point about Section 11 is that it does not mention the type of transport that the defendant said was being carried out pursuant to its terms. The various categories of transport do not include taking passengers between an aircraft and a terminal. Notwithstanding this apparent omission I am satisfied that, at least as far as the defendant was concerned, it considered that it transported Rex passengers pursuant to the IATA Ground Handling Agreement. Mr Todd, the defendant's General Manager, says so in his affidavit sworn on 9 December 2011 (paragraph 1). He was not challenged.
Unlike her approach at the Notice of Motion the plaintiff concentrated her submissions on the existence of an agency agreement rather than any distinction of the principal as between Rex and REH. Ultimately I do not think the distinction makes any difference. The real question is whether the defendant was the agent of the carrier, be it Rex or REH.
The defendant next maintained that it was the agent of the carrier in the manner envisaged by Section 33 of the Commonwealth Act. In effect the defendant said that in taking passengers from the aircraft to the terminal it was doing so on behalf of the carrier, which had the overall responsibility of transporting the passengers to the terminal. This interpretation reflected the purpose of Section 33, which was to ensure the passengers obtained the benefit of the carrier's liability under the legislation for the whole of their journey.
The plaintiff submitted that a more formal 'common law' approach should to be taken in deciding if there was any agency. Thus there needed to be a contract of agency, a stipulated principal and agent and the agreement required the indices of agency, such as control and the capacity of the agent " to affect the legal position of the principal" (plaintiff's written submissions). These were absent here said the plaintiff. Therefore there was no agency within the scope of Section 33.
The plaintiff pointed out that there was no evidence from Rex or REH asserting an agency agreement and subpoenas issued to these companies had not produced any such agreement.
According to the plaintiff the defendant should be characterised as an " independent contractor that provided services when needed ." (Plaintiff's written submissions).
In addition, the plaintiff submitted I should take a "parsimonious" approach to the interpretation of Section 33. This caution was derived from the judgment of Meagher JA in Kotsambasis v Singapore Airlines Ltd 148 ALR 498 at 505. His Honour was concerned with the process of embarking and disembarking. His judgment included this passage:
"I accept that location, activity and control are useful in determining whether, on the facts of any given case, an accident can be regarded as having occurred in the process of embarking or disembarking. They may not be the only factors and, in the end, the answer will lie in the facts of the particular case. However, I would stress that regard has to be directed to the intention of the contracting parties to the Convention and that intention was to impose absolute liability in certain, fairly narrow, circumstances. In interpreting the words ``embarking or disembarking'' it should be remembered that the Convention is to be read parsimoniously."
With great respect to learned counsel I think that the plaintiff's reliance on this passage may be misplaced. The intention of the Convention, inter alia, is to provide compensation to passengers injured within certain limits of their journeys. It gives the passengers the benefit of strict liability but with a balance in limiting the amount of damages that may be recovered. If this plaintiff's case fell under the NSW and Commonwealth Acts she would be faced with a limit on her damages of $500,000. To the extent that I have been made aware of her damages claim I do not think it would exceed this amount. Falling under the legislation would therefore be to her benefit because she would be relieved of the task of proving negligence.
This purpose of the Convention was concisely explained by Korman J in Girard v American Airlines District Court, 2003 WL 21989978 (E.D.N.Y.) His Honour said:
" In addition to burdening courts with the responsibility of delving into the highly fact-intensive determination of what risks are characteristic of air travel and to what degree such risks must pertain exclusively to aviation, the narrower definition of "accident" would unduly constrict Article 17's protection of injured passengers. One of the principal purposes of the Warsaw Convention was to limit the potential for catastrophic li ability of air carriers by imposing damage limita tions. In exchange, however, the Convention sought to accommodate the interests of injured passengers by providing more liberal recovery and a more streamlined process free from the en cumbrance of proving fault ."
What I do think is important in Meagher JA's judgment in Kotsambasis is his reference to the intention of the contracting parties to the Convention.
Consistent with my conclusion that the defendant is not a carrier, a finding that the defendant was an agent of the carrier achieves the purpose of the Convention to provide strict liability compensation to passengers who contract with an airline and expect to be safely conveyed both in the air and by whatever mode of travel is required from terminal to aircraft and then from aircraft to terminal.
The plaintiff, in her oral evidence, said that she did not automatically assume that the bus was carrying passengers on behalf of Rex. She thought the bus may have been provided by Sydney Airport. This is as logical a conclusion as any other. The fact is, however, that the bus was not provided by Sydney Airport. It was present pursuant to an agreement between the airline (or its holding company) and the defendant.
T he defendant referred me to a number of American cases, of which I think Johnson v Allied Eastern States Maintenance Corporation 488 A.2d 1341 (DC cir. 1985), a decision of the Court of Appeals for the District of Columbia, is most useful. This case was also concerned with the two year limitation period. It was about the use of skycap services provided by the airline. A skycap is a porter (Oxford English Dictionary) who, in this case, was pushing the plaintiff in a wheelchair that struck a metal strip and tipped over, injuring the plaintiff. The court said this:
"We hold instead that the test is merely whether the particular activity of the agent which resulted in injury was in furtherance of the contract of carriage. In this case that test is easily met. Putting the passenger on the plane is surely in furtherance of the contract of carriage. If there had been no skycap and no service contract between Allied and Eastern Airlines, the airline itself would have had to as- sist Mrs. Johnson in boarding the plane. Since Allied was performing part of the airline's duty un- der the contract of carriage, it is entitled to the same protection-no more and no less-that the air line would have under the Convention."
In the present case the defendant was doing what Rex would otherwise have had to do, that is putting the passenger into the terminal.
It may be that for other purposes the approach taken by the plaintiff would be correct and the allegation of agency on the defendant's part would be subject to the scrutiny submitted by the plaintiff.
My task however is to examine the issue of agency within the parameters of the separate question, namely " within the meaning of s33 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth)"
In paragraph 1077 of Air Law the authors state: "The agents within the scope of the Convention are those performing services in furtherance of the contract of carriage ..." . Once again I am of the view that the furtherance of the contract of carriage includes the delivery of passengers from the aircraft to the terminal.
I would like to add another point at this stage. The plaintiff sought to rely on certain correspondence between the parties that had never raised the defendant's alleged status as a carrier or agent of a carrier nor of its entitlement to rely on the two year limitation period. I rejected the material as not being relevant to the questions I was answering. The point I would like to note here is that the plaintiff did not suggest that any estoppel arose which might have contained the defendant's capacity to rely on the terms of the legislation, but in particular the more restricted limitation provision.
An estoppel argument was raised successfully in Air Tahiti Nui . I make no comment on whether a similar argument could be raised here.
On the basis of what I have said above I am satisfied that the answer to Question 2(a) is that the defendant was acting as "an agent or servant of the carrier or carriers within the meaning of Section 33 of the Civil Aviation (Carriers Liability) Act 1959 (Cth)".
Turning now to Question 2(b), the plaintiff submitted that if the defendant was an agent of the carrier it was not acting within the scope of its employment or authority. I do not need to deal with any issue of employment. Neither party, correctly, suggested that the defendant was an employee of the carrier.
The plaintiff submitted that the defendant was acting outside the scope of its agency because, in substance, and on various bases, the service being provided by the defendant was not safe. Thus, for example, Clause 5.6 of the IATA Main Agreement was offended because due regard was not being paid to safety.
The assumption in the plaintiff's submissions was that the defendant was using a bus known to be unsafe. I think an inference to this effect is probably available on the basis of the plaintiff's description of her conversation with the bus driver, which seems to indicate that the driver was aware of the problem. If this was the case, the plaintiff submitted, then not only would the defendant have been in breach of Clause 5.6 but also in breach of various statutory obligations requiring the provision of vehicles that were suited to the purpose for which they were being put.
A vehicle with a dangerous door would obviously not be appropriate for use in the carriage of passengers. Therefore, continued the plaintiff, the use of such a bus drew the conduct of the defendant in the circumstances of the plaintiff's accident outside the scope of its authority as agent of the carrier.
The defendant responded that, even allowing for previous knowledge of the defect on behalf of the defendant, the scope of the authority was still maintained. I was referred, as illustrating the type of conduct necessary to fall outside the scope of an agency authority, to the decision of the High Court in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at pages 46 and 50.
As I understand the decision of the High Court a principal will remain liable for the wrongful acts of an agent provided they are being performed within the scope of the agency.
The scope of the agency in the present case was the provision of the transport services. The use of a defective bus was an activity within that scope.
I think the distinction can be illustrated by these examples. If the plaintiff had been injured as a result of an accident caused by the bus driver in travelling at an excessive speed between the aircraft and the terminal the accident would have been within the scope of the agency. However, if the bus driver had chosen, instead of going directly from the aircraft to the terminal, to first make an unauthorised stop elsewhere, in the course of which journey there was an accident which injured the plaintiff, then I think the accident would have fallen outside the scope of the agency.
This use of an 'agency' case on the issue of scope of authority could be seen as contradictory to my finding on the existence of an agency of a type not conforming to the strict rules of agency that had been advocated by the plaintiff. There is some logic in such a criticism; however I do not see why a 'Section 33 agency' should be treated any differently on this point. Perhaps to the contrary, where the agency is intended to extend strict liability to an agent of a carrier, the scope of the agency should be viewed to the benefit of the passenger.
Accordingly, the answer to Question 2(b) is that the defendant was acting within the scope of its authority.
The effect of my answer to Question 2(a) is that Question 2(c) does not require attention.
Question 3 - The determination of whether or not the injury suffered by the plaintiff resulted from an accident which took place "in the course of any of the operations of disembarking" from flight ZL 167 on 23 August 2007 within the meaning of s. 28 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth).
Although I gave leave to re-agitate this question, it is comprehensively dealt with in my earlier decision. I allowed it to be re-agitated in case any facts emerged which might have caused me to alter my earlier decision. No such facts emerged but more importantly my decision in respect of Question 2(a) reinforces the conclusion that the injury occurred in the course of disembarkation. I do not think it necessary to deal any further with Question 3.
Answers to the questions
The answers to the questions are:
Question 1: The defendant was not the carrier of the plaintiff in the terms framed by the question.
Question 2(a): The defendant was acting as "an agent or servant of the carrier or carriers within the meaning of Section 33 of the Civil Aviation (Carriers Liability) Act 1959 (Cth)".
Question 2(b): The defendant was acting within the scope of its authority.
Question 2(c): Not applicable.
Question 3: The injury suffered by the plaintiff resulted from an accident which took place "in the course of any of the operations of disembarking" from flight ZL 167 on 23 August 2007 within the meaning of s. 28 of the Civil Aviation (Carrier's Liability) Act 1959 (Cth).
The next step
The defendant will no doubt argue that on the basis of my answers to the separate questions it is entitled to an order that the Statement of Claim be dismissed as having been filed outside the relevant limitation period. That result does seem to flow; however, I do not intend to make that order absent specific application and giving the plaintiff the right to be heard before such an order is made.
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Decision last updated: 09 March 2012
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