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Written by Peter Carter

July 29, 2021

A serious accident during passenger disembarkation at a remote Australian airport, demonstrates the relative safety responsibilities of airlines, ground handlers and airport operators to guard against foreseeable hazards.

In November 2012 Ron Garnett – a fly-in/fly-out regular at that destination – made his way across the Karratha airport tarmac from the rear stairs of the Qantas B738 that had just arrived from Perth.

The sun had set 20 minutes earlier and daylight was fading fast. A path for arriving passengers – leading to the terminal to the north of the tarmac – was designated on the left side by bunting with flags strung between wheelie bins.

It joined a passenger walkway that ran east/west along the tarmac apron.

It was on that walkway – as his left foot struck the unseen edge of a plinth at the base of a lighting tower – he fell smashing his left knee and causing other injuries.

His injury compensation lawsuit was begun in July 2014 against the carrier, QANTAS. The carrier subsequently joined as third parties both Skystar – its ground handling agent, -and Karratha City Council, the airport owner and operator. The third parties also cross-claimed against each other.

In October 2015 – nearly three years after the accident – Garnett was given leave to add Karratha and Skystar as defendants to his claim.

The four-way contest came before Judge Amanda Burrows SC in the District Court of Western Australia in May 2018.

QANTAS conceded its liability as the carrier for the disembarkation accident and agreed to pay Garnett $500k plus costs. This was the maximum Civil Aviation (Carriers’ Liability) Act 1961 (WA) exposure for the carrier, its employees and its agents, as at the date of the accident.

The contribution dispute then fell to be decided as between the carrier and Karratha & Skystar, as did Garnett’s separate claims against those parties for his additional losses over and above the $500k limit.

Skystar separately agreed with Qantas to pay 50% of the compensation and costs they were liable to pay the plaintiff, Garnett.

The FIFO passenger alleged the non-carrier parties were liable to him for not having eliminated the hazard, for example, by painting the plinth in bright yellow, improving the lighting or installing a railing to isolate the hazard.

Garnett was able to make out his negligence claim and her Honour awarded him judgment for damages to be assessed as against Karratha.

The Council was also liable in Qantas’s contribution claim (for the other 50% of the sum it agreed to pay the passenger) due to its breach of a “safe access” term implied into the agreement it made with the carrier for the use of the airport.

It was however a different outcome as against Skystar who – as Qantas’s “agent” – was entitled to avail itself of the Carriers’ Liability Act two-year limitation period. On that interpretation, Garnett’s claim as against the ground handler had been “extinguished” before it had been joined as a defendant to the claim.

Garnett appealed the ruling that Skystar was Qantas’s “agent” for the purposes of the Carriers Liability Act.

Karratha also appealed that finding and the trial judge’s decision it had breached its duty of care to the passenger.

Both appeals were dismissed after they came before the WA Court of Appeal in May 2021.

The appellants alleged Skystar was not truly Qantas’s “agent” as it did not have the requisite authority to bind the carrier contractually. Rather – they contended – the ground handler was a mere subcontractor.

The appeal judges observed that various iterations of the international conventions which are applied domestically by Australian legislation clearly state that “a servant or agent of the carrier…. shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke”.

They concluded the court should not focus on “the precise nature of the contractual relationship” but rather should identify “those entities and persons through which or by whom, the carrier provided the contracted service of carriage”.

“It is sufficient to conclude that the denotation of the phrase “servant or agent,” they wrote in the judgment of the Court, “includes an independent contractor engaged to marshal passengers from the aircraft to the terminal”.

In appealing the passenger’s judgement against it, Karratha had contended it had no responsibility for the injury because it played no part in designating the pathway that Skystar chose to utilise for the disembarking passengers.

That contention belied the unchallenged evidence. Only a few months earlier the Council had removed a grassed area delineating the plinth and replaced it with concrete to merge the area into the walkway. And its employees were “airside” daily and well aware of the plinth’s position in relation to the path Skystar had defined with wheelie bins and bunting.

“The judge was correct to find that the risk was reasonably foreseeable in that it was a risk of which Karratha knew or ought to have known”.

The assessment of Mr Garnett’s further damages payable to him for the disembarkation accident by Karratha City over and above that which Qantas must pay, will proceed in the coming months.

Garnett v Qantas Airways Ltd – [2021] WASCA 110, Murphy JA Mitchell JA Vaughan JA, 30 June 2021

 

Categories: aircraft accident , Personal Injury , Holiday & Travel Law

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