August 26, 2010

In May 2007 Bill Brannock was jetting off with a friend on a month’s holiday from Brisbane to Adelaide. After being checked for boarding, the 84 yr old was directed to descend a stairwell to the tarmac for the purpose of boarding the aircraft.
Unable to locate the tarmac entry they returned up the stairs. When half way up they were met by descending passengers and decided to turn back around to follow their lead. Mr Brannock fell in the course of turning to go back down and was injured.

He lodged a Personal Injuries Proceedings Act 2002 Notice of Claim and in September 2008 commenced a claim in the Queensland District Court against the airline under s 28 of the Civil Aviation (Carriers Liability) Act 1959 which renders an airline liable for passenger injuries that occur as a result of an accident during air transport or in the course of “embarking or disembarking”.

The Statement of Claim pleaded s 28 but did not particularise the “accident”.  Jetstar did not dispute that Mr Brannock had sustained an injury and that it had occurred during the course of “embarking” but defended on the basis that the injury was not as a result of an “accident” within the meaning of s 28.

The plaintiff’s Reply went into some detail about exactly what had occurred but did not address that specific allegation.
Jetstar brought a summary judgment application to strike out Mr Brannock’s claim.

The primary judge concluded that the injury had indeed occurred as a result of an “accident” and dismissed the strike out application.

On appeal*, the Court considered Australian and international authorities and noted that the High Court[1] had ruled as recently as 2005 that an “accident” under s 28 was to be construed according to international air carriage law in particular by reference to the meaning of the same term in article 17 of the Montréal No 4 Convention.

Following the High Court, all three Appeal judges concluded that an “accident” for the purposes of section 28 is “an unexpected or unusual event or happening that is external to the passenger”[2].

McMurdo P agreed with the primary judge and was satisfied the plaintiff had identified the circumstances of the event, that they were external to him and that they were objectively unusual or unexpected. The accident:

..turned on a series of acts or omissions: the unclear or wrong directions as to embarkation provided;… the ommission of Jetstar to provide suitable signs or guidance to assist; Mr Brannock’s unexpected ascent of the stairs; his turn on the stairs; and the subsequent fall [were a] combination of acts and omissions that caused his physiological injuries and were external to him.

Her Honour was satisfied that these “acts and omissions… were unusual or unexpected in an objective sense” and that the appeal should be refused.

White JA with whom Fraser JA concurred, found differently. In Her Honour’s view the:

…accumulation of circumstances as pleaded…cannot, either individually or collectively, create an event external to the passenger. The stairs were an ordinary feature of embarkation. Mr Brannock’s approach to embarking on using the stairs was peculiar to him.

White JA ruled that the relevant circumstances were no different to a number of other international slip and fall air carriage cases where compensation was denied. Because the injury did not, on the pleadings, arise from a s 28 “accident”, she ordered that the appeal be allowed and the claim struck out.

Her Honour explained that the considerations of whether or not an “accident” had occurred, should not be confused with concepts of negligence. It should be noted that the plaintiffs in the leading US case, Saks (burst eardrum from take off de-pressurisation) and in the leading Australian case, Povey (D.V.T) both failed because the injuries were held not to have been caused by something that was “external to the passenger”.

CACLA, like international air carriage compensation, is in substitution of other rights that passengers may have on board, embarking or disembarking. There is no other compensation available if the injury is found to have occurred on board the aircraft or in the course of embarking or disembarking.

Thus, the only compensation route open to Mr Brannock against the carrier, was shut closed. This case demonstrates that air carriage law does not provide for “strict” liability as is often thought.

*Brannock v Jetstar Airways P/L [2010] QCA 218

[1] Povey v Qantas [2005] HCA 33, 23 June 2005
[2] In so finding the court followed the US Supreme Court decision in Air France v Saks 470 US 392 (1985) at 405 where Justice O’Connor articulated the above definition which has since been widely adopted.

Categories: Personal Injury , Litigation & Law Practice , Aviation Law , Holiday & Travel Law

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