A number of recent decisions in the Supreme Court of Queensland relate to personal injuries claims arising from accidents associated with aviation. One concerned the definition of an 'accident' under the Civil Aviation (Carriers Liability) Act 1959 (Cth) and the other two dealt predominantly with issues concerning assessment of damages.
Brannock v Jetstar Airways Pty Ltd
The Court of Appeal of the Supreme Court of Queensland considered the definition of 'accident' under section 28 of the Civil Aviation (Carriers Liability) Act 1959 (Cth) (the Carriers' Liability Act) in Brannock v Jetstar Airways Pty Ltd [2010] QCA 218. Justices Fraser and White JJA delivered concurring judgments whilst Justice McMurdo P dissented.
The incident that gave rise to the proceedings occurred when the plaintiff, Mr Brannock, during the process of embarkation for a Jetstar flight from Brisbane to Adelaide, was directed to descend a flight of stairs within the terminal to access the tarmac for boarding. Having descended the stairs, Mr Brannock was unable to find an open door giving access to the tarmac, at which point he began to ascend the stairs to ask Jetstar's staff which way he should go. At the same time as Mr Brannock was ascending the stairs to make his enquiries, a number of other passengers were descending the stairs and offered to show Mr Brannock the way. Mr Brannock turned, lost his footing and fell to the foot of the stairs, injuring himself.
The judgments were the result of an appeal of a decision by the Queensland District Court to dismiss an application by Jetstar to strikeout Mr Brannock's Statement of Claim, on the basis that Mr Brannock had no real prospects of succeeding on all or part of his claim at trial.
Mr Brannock's claim was brought pursuant to section 28 of the Carriers' Liability Act which provides that:
This section of the Act has its origins in the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw 12 October 1929 (Warsaw Convention).
Consequently, the Court considered the international case law with respect to what is meant by the term 'accident' under the Warsaw Convention and acknowledged that the primary judge had correctly identified that for Mr Brannock to establish that his injuries resulted from an 'accident' under section 28 of the Commonwealth Act, he would need to establish that what had happened during embarking:
- caused the injury he suffered;
- was external to him; and
- was objectively unusual or unexpected.
Mr Brannock alleged that the 'accident' was constituted by a series of acts and omissions including:
- unclear or wrong directions as to embarkation provided by Jetstar's agent;
- the omission of Jetstar to provide suitable signs or guidance to assist in the embarkation;
- Mr Brannock's resulting unexpected ascent of the stairs;
- Mr Brannock's turn on the stairs; and
- Mr Brannock's subsequent fall.
The majority judgment acknowledged that, whilst Mr Brannock may ultimately have difficulties in proving his claim at trial, the critical issue in the case (ie whether the series of acts or omissions leading to Mr Brannock's fall were unusual or unexpected in an objective sense) would not be capable of determination until the relevant facts were ascertained at trial. Accordingly, they considered that it was not appropriate to strike out Mr Brannock's pleading on the ground that it did not disclose a reasonable cause of action.
McMurdo P in his dissenting judgment acknowledged that the international case law recognised that a 'chain of causes' could either individually or collectively create an event external to a passenger. He concluded, however, that the stairs were an ordinary feature of embarkation and Mr Brannock's approach to embarking and using the stairs was peculiar to him. McMurdo P concluded that the circumstances as pleaded by Mr Brannock could not either individually or collectively create an event external to the passenger that was capable of being held to be an 'accident' under section 38 of the Commonwealth Act.
The judgments do not materially alter the treatment of the term 'accident' under Australian case law but provide a useful synopsis of the issues that courts will take into account when considering this term.
St Clair v Timtalla Pty Ltd & Anor
On 20 August 2010, judgment was delivered in the Supreme Court of Queenland case of St Clair v Timtalla Pty Ltd & Anor [2010] QSC 296 in which damages were claimed in negligence against.
On 21 June 1994, the plaintiff Mr St Clair had been mustering cattle by helicopter in the Northern Territory using a Robinson R22 helicopter. At about 200 feet above ground he heard a very loud noise and the helicopter lost power. The helicopter made impact with the ground after Mr St Clair tried unsuccessfully to achieve autorotation.
Mr St Clair suffered injuries such that he had great difficulty walking, experienced severe pain in his back as well as burning pain in his legs and was only able to walk short distances with the aid of callipers and crutches as his primary form of mobilisation.
The proceedings were pursued against Timtalla Pty Ltd (Timtalla), the owner of the helicopter and against Aircraft Technicians of Australia Pty Ltd (ATA) who had serviced the helicopter at certain times.
The Court held that the accident was contributed to by the use of an incorrect upper actuator bearing. The case against Timtalla was based on it being the owner and lessor of a piece of equipment that could readily cause death or injury if not maintained in an airworthy state and that it had a non-delegable duty to ensure the safety of the helicopter. Mr Justice Martin dismissed the claim against Timtalla, rejecting the non-delegable duty argument on a number of grounds.
However, the court found ATA liable in respect of work which it had undertaken on the helicopter, having breached the duty it owed to the plaintiff and the failure of the bearing being, in part, due to that breach.
Mr St Clair was awarded damages against ATA in the amount of $1,729,566 including general damages in the amount of $150,000 and future economic loss of more than $500,000, together with various expenses incurred in the past or anticipated for the future.
Thornton v Lessbrook Pty Ltd
On 26 August 2010, judgment was delivered in the Supreme Court of Queensland case of Thornton v Lessbrook Pty Ltd [2010] QSC 308 in which damages were claimed pursuant to the Civil Aviation (Carriers' Liability) Act 1964 (Qld) which in turn applies the Carriers' Liability Act (and which creates a strict liability regime for persons injured in an aircraft accident).
On 7 May 2005 the plaintiff's (Mr Thornton) fiancée was killed in an aircraft crash that occurred on approach to the Lockhart River Airport in far North Queensland. Mr Thornton, sought damages for pecuniary loss in respect to his fiancées death.
Mr Thornton's fiancée had been a policewoman with what the court considered to be a promising career ahead of her.
The Court assessed Mr Thornton damages in the amount of $526,232 made up of past and future loss of financial dependency and services and loss of superannuation.
However, liability was limited by the legislation to $500,000.
In the judgment of Mr Justice Applegarth there is a brief but interesting review of the entitlement to recover costs beyond the limitation amount. He held that the $500,000 limit on liability under section 31 of the Commonwealth Act does not extend to the court's discretionary power to award costs, following the earlier Australian authority in Colombera v MacRobertson Miller Airlines Ltd (1972) WAR 68 rather than applying the reasoning in Swiss Bank Corp v Brink's-MAT Limited (1986) QB 853.
© DLA Phillips Fox
DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.
