Questions of whether embarkation stairs were safe and caused a passenger to fall were not relevant in deciding if an “accident” had occurred in accordance with international air carriers’ liability principles.
On 2 May 2007, Mr Brannock (who was then aged 84) and his companion commenced embarkation of a Jetstar flight from Brisbane to Adelaide.
After presenting their boarding passes at the gate entry, a flight attendant directed them to descend a flight of stairs to the tarmac and board the aircraft.
When they reached the bottom of the stairs, they could not find an open exit door leading to the tarmac, and started back up the stairs. When other descending passengers offered to show them the way, Mr Brannock turned and began to descend the stairs again. In so doing, he fell to the foot of the stairs and was injured.
In his statement of claim, Mr Brannock pleaded that his injuries resulted from an “accident” which took place in the course of embarking as prescribed by section 28 of the Civil Aviation (Carriers Liability) Act 1959 (CACL).
Section 28 of CACL, which closely follows article 17 of the Warsaw Convention as amended by the Hague Protocol, relevantly provides:
“… the carrier is liable for damage sustained by reason of … any personal injury suffered by the passenger resulting from an accident which took place … in the course of any of the operations of embarking …”
In its defence, Jetstar denied the injuries resulted from an “accident” within the meaning of section 28 because they were not the result of an unexpected or unusual event or happening that was external to Mr Brannock.
Mr Brannock filed a reply alleging a number of facts and circumstances which he claimed constituted an unexpected or unusual event or happening external to him. For example, he alleged that:
- he anticipated he would be able to board the aircraft by simply entering the air bridge;
- upon descending the stairs, there were no signs or servants of the carrier to direct passengers;
- he could not open the doors to the tarmac;
- when he attempted to turn on the stairs, they were steep, had no handrails, had no non-slip nosings, and caused him to fall.
Jetstar filed an application to strike out the statement of claim as disclosing no reasonable cause of action and alternatively, sought summary judgment against the plaintiff.
The District Court dismissed Jetstar’s application on the basis that, until the relevant facts were ascertained at trial, it was not appropriate to strike out the claim on the grounds that the series of alleged acts or omissions leading to Mr Brannock’s fall were not unusual, unexpected or external to him.
The District Court said:
“There must be a reasonable expectation that an airline will provide safe access from the terminal to the aircraft. To conclude that the concept of ‘accident’ in section 28 did not extend to the provision of unsafe stairs, or a poorly designed set of stairs, which caused injury, would mean that passengers injured in transit would be precluded from compensation for the negligence of the airline, because the carrier’s liability under section 28 is in substitution for any liability under the common law. Such a result would be contrary to the intention and purpose of Part IV of the Act.”
Jetstar appealed to the Court of Appeal contending that the District Court allowed concepts of common law negligence to influence the characterisation of the alleged unsafe stairs as an unusual external event and the cause of the injury. Jetstar argued that the circumstances going to the safety of the stairs were not relevant and no event external to Mr Brannock had been pleaded.
On appeal, Mr Brannock argued that to deny him an opportunity of a trial to test his assertions about the state of the stairs giving access to the tarmac was unjust.
In a majority decision (2 to 1), the Court of Appeal allowed Jetstar’s appeal and found:
- the facts as pleaded by Mr Brannock did not constitute an event external to him;
- the stairs were an ordinary feature of embarkation;
- Mr Brannock’s approach to embarking and using the stairs was peculiar to him; and
- that the District Court erred when finding that the questions of whether the stairs were unsafe and caused Mr Brannock’s fall were questions of fact for a trial.
The Court of Appeal considered a number of international case authorities in determining the meaning of “accident” and determined the starting point was the decision in Saks v. Air France In that decision, the Court found “that liability under Article 17 arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. This definition should be flexibly applied after assessment of all the circumstances surrounding the passenger’s injuries”.
The Court of Appeal referred to the decision in Povey v Qantas Airways Limited in which the High Court said “In Article 17, “accident” is used to refer to the event rather than the cause of the injury” and also warned that “there is no basis for introducing, for example, concepts of the common law of negligence to the construction or application of an international treaty”.
Significantly, the Court of Appeal referred to the comments by Justice Kirby in Povey, who said:
“If the outcome derived by these techniques (of interpretation) sometimes appear unjust to local litigants, the injustice may be called to notice by the Courts concerned. Sufficient criticisms by Courts and others may ultimately enliven the cumbersome process of treaty re-negotiation and amendment or national supplementation of treaty rights. This has happened in the past with the Warsaw Convention as the several schedules to the Carriers Liability Act illustrates. What is impermissible is an attempt to manipulate the language of the international treaty to avoid an outcome that seems harsh by contemporary domestic perspectives. Few developments would so undermine the growing development of international law as this”.
An air carrier will only be liable if the passenger proves there has been an “accident”.
Despite the long line of cases that have considered the meaning of “accident” under the Warsaw system, courts continue to struggle with the strict liability system and attempt to incorrectly import notions of fault into the concept of accident.
This decision also serves as a salient reminder for passengers to ensure that they have appropriate travel or personal accident insurance when flying.