A weighty issue
Aug 2015 |
Bassos v Etihad Airways [2015] QDC 185
The plaintiff alleges he suffered personal injuries resulting from an ‘accident’ within the meaning of Article 17 of the 1999 Montreal Convention and has sought damages in the Queensland District Court in respect of those alleged injuries.1 Etihad Airways (Etihad) sought to have the plaintiff’s claim dismissed summarily for want of there having been an ‘accident’.
Facts
In October 2011, whilst on an international flight from Sydney to Dubai, the plaintiff was allegedly ‘required to occupy a seat encroached upon by another passenger, requiring him to contort and twist his body to avoid contact with the other passenger’.2 As a result, he reportedly sustained a back injury and aggravation of an existing back condition. At the time of Etihad’s application (application) the injury was yet to be independently assessed.
The plaintiff claims that five hours into the flight he complained to the cabin crew and sought to be relocated. This request was refused, with the plaintiff making a further request to be reseated some 30 minutes later. At this juncture he was reportedly allowed access to a crew seat but after one hour was asked to return to his assigned seat where he remained for a further hour. The plaintiff then reportedly reseated himself in a crew seat for an unspecified period of time, following which a security procedure was invoked by a crew member and the plaintiff was required to return to his seat for a further one and half hours before the aircraft landed.3
The application
It was common ground at the application that the term ‘accident’ has been consistently interpreted to require ‘an unusual or unexpected event or events, external to the passenger’.4
Etihad submitted ‘the presence of overweight passengers who take up too much space in the cramped conditions of economy class is not unexpected or unusual’5 and as such the plaintiff had no real prospect of success at trial because the facts as alleged did not constitute an ‘accident’.6
The plaintiff opposed Etihad’s application on the basis his claim in fact alleges it is ‘an unusual and unexpected event to be required to sit in a seat partly occupied by another person to the extent that he had to twist and contort his body to avoid contact with the other passenger’.7
Findings
In deciding the application, the court considered two leading judgments: Povey v Qantas Airways Ltd8 and Olympic Airways v Hussain.9
Having regard to the Povey decision, the court observed the passenger in that case ultimately failed because he did not allege the conditions were unusual and unexpected. This was not the case in the matter under consideration as the plaintiff ‘asserts the circumstances in which he was required to take and return to that seat were unusual and unexpected’.10
Further, the court noted the majority of the High Court accepted an accident might occur because of some combination of acts and omissions.11 In the matter at hand, the court considered the plaintiff’s allegations raised a mixture of acts and omissions forming a chain of causes leading to an injury.12
The second authority considered by the court was Hussain. The plaintiff sought to rely on this decision ‘as authority for the proposition that his claim reveals a cause of action to be tried’.13
The court observed that in the Hussain decision, the Supreme Court of the United States found ‘the focus on an injury producing event was misplaced’ and that in fact ‘multiple interrelated events could combine to cause an injury’.14 Consequently, ‘it was sufficient to establish an accident if there was a factual event that was unexpected or unusual’.15
In considering the two authorities, the court noted the reasoning in Hussain was not challenged in Povey because ‘the plaintiff did not allege the conditions were in any way out of the ordinary or unusual’16 but that was not the case in the present matter.
As such, the court found it was ‘not accurate to dismiss the claim as one arising from cramped conditions which are usual and to be expected’17 and as a consequence was ‘not satisfied the plaintiff had no reasonable prospects of establishing his claim’.18 This was so despite the reasoning of the United States Supreme Court in Hussein ‘having not been tested (nor rejected) in Australia’.19
As such, the court confirmed it was not satisfied the plaintiff’s:
- Statement of Claim revealed no cause of action; and
- The claim has no prospects of success thereby obviating the need for a trial.20
Etihad’s application failed and the matter continues.
Comments
The plaintiff’s claim (and the court’s comments in dismissing Etihad’s application), raises an interesting challenge to currently accepted jurisprudential definitions of what constitutes an ‘accident’ in the course of international carriage.
It is expected that Etihad will continue its defence of the plaintiff’s claim (notwithstanding the failed application to dismiss) particularly given Hussain has not been expressly tested in Australia.
Carter Newell will continue to track the progress of this matter and will provide further updates as developments occur.
1 Given force of law in Australia by dint of s 9B of the Civil Aviation (Carrier’s Liability) Act 1959 (Cth).
2 Bassos v Etihad Airways [2015] QDC 18 Per Kingham J [1].
3 Ibid [5] (a) – (h).
4 Ibid [2] citing Air France v Saks 470 US 392 at 405 (1985); Povey v Qantas Airways Ltd (2005) 223 CLR 189; Brannock v Jetstar Airways P/L [2010] QCA 218.
5 Ibid [4].
6 Ibid.
7 Ibid [14].
8 (2005) 223 CLR 189.
9 (2004) 540 US 644.
10 Bassos v Etihad Airways [2015] QDC 18 Per Kingham J [9].
11 Ibid [9].
12 Ibid.
13 Ibid [10].
14 Ibid [12].
15 Ibid.
16 Ibid [14].
17 Ibid.
18 Ibid [16].
19 Ibid.
20 Ibid [18].
