December 4, 2021

Can an airline that tickets a passenger for a flight under its name escape liability under air carriage law because the flight is conducted on an aircraft operated by a different carrier?

That was the issue that confronted Jeffrey Vock when Qantas sought summary dismissal of his claim for compensation for an injury that occurred while disembarking QantasLink flight QF2331 in April 2018 at Brisbane Airport.

In its Defence to Vock’s injury lawsuit, Qantas pointed out that – “surprisingly” – the QantasLink name in Queensland is that of Sunstate Airlines Pty Ltd, the related company that conducted the “codeshare” flight under its own airline licence.

Too late to join Sunstate as a second defendant as the two year limitation period had by then expired, Vock was called on to convince Judge David Kent in the District Court at Brisbane that his action against Qantas should be allowed to continue to trial.

“It seems reasonably clear,” noted His Honour that Queensland Health had booked the flight with Qantas through agent Corporate Travel Management.

The purpose of the flight was to allow the passenger to accompany his mother-in-law on the DHC-Dash 8 aircraft from Gladstone to Brisbane for medical treatment.

Notwithstanding that the flight was conducted under a “contract of carriage” in an aircraft being operated by “the holder of an airline licence”, Qantas contended for a strict interpretation of s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 that would impose liability only on the actual carrier, namely Sunstate.

Against that contention, Mr Vock argues that the “contracting carrier”, ie Qantas, shares equivalent liability to that of Sunstate.

Because the issue has not been previously decided in a domestic context – and because of gaps in the enabling State legislation that might require recourse to the federal Act – His Honour reserved the statutory interpretation contest to the trial judge.

What most occupied the court – at least in terms of the 20-page judgment – was whether Qantas was estopped from denying it was the carrier by reason of the representations it had made in the ticket and itinerary and in the publication of flight schedules.

And whether an estoppel arose by reason of its solicitors’ “silence” in response to Mr Vock’s lawyers being focused on Qantas when it “must have known with the limitation period expiring, the true carrier was Sunstate”.

QantasLink does not have its own website and all flight reservations bookings are via the Qantas booking portal.

“It is hard to escape the conclusion,” Judge Kent reasoned, “that it did nothing to disabuse the respondent of his apparent mistaken belief that Qantas was the correct defendant”.

On that argument too, there was in His Honour’s view a “triable issue” in which the passenger’s prospects of success were “real rather than fanciful”.

Qantas’ summary dismissal application was thus denied. If not resolved sooner, the contest is likely to proceed to trial in mid-2022.

In Western Australia, QantasLink is the brand for another Qantas subsidiary, Network Aviation. Elsewhere in Australia it is wholly owned Eastern Australia Airlines Pty Ltd that flies under that name.

Vock v Qantas Airways Limited [2021] QDC 269 Kent QC DCJ, 23 November 2021

Categories: aircraft accident , Aviation Law

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