Is it or is it not an Accident on an Australian Commercial Airline?
Published February 2006
1. Section 27 of the Civil Aviation (Carriers liability) Act 1959 (the Act) permits a passenger to bring a claim. Part IV of that Act is the relevant Part for a passenger to bring a claim within two years. Bringing an action under the Act is in substitution of any other rights (s.36). Thus the liability is strict but subject to an allegation that it was not an accident within the scope of the Act and that the plaintiff was guilty of contributory negligence (s.39).
2. The High Court recently looked at what was an accident under the terms of the Act (see Povey's case (2005) 216 ALR 427). The majority decision stated that an accident "...is a concept which invites two questions; first, what happened on board that caused the injury of which complaint is made, and secondly, was what happened unusual or unexpected?"(Page 435) Justice McHugh at page 440 said "The critical question in the appeal is whether anything took place on board the aircraft that is capable of being described as the accident which caused the damage."
3. Article 17 of the Warsaw Convention states - "The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." The above Act applies this Article. McHugh J said at the bottom of page 442 "One of the objects of the Convention is to provide compensation for injured passengers without the need to prove fault on the part of the air carrier. The price that is paid for this benefit is a limitation on the amount of compensation payable and the imposition of a condition that the accident which caused the damage...took place on board the aircraft..." (The current limit is $750,000 increased in 2012).
4. McHugh J also cited Gibbs J (as he then was) in Kaporonovski v R (1973) 133 CLR 209 at 231 "It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person." His Honour (Gibbs J) was referring to the Queensland Criminal Code where voluntary or intended acts of a person that cause harm may constitute an accident where the harm was not intended or reasonably foreseeable.
5. McHugh J said at page 443 "...an accident occurs when a flight attendant directs a passenger to sit in a seat that collapses. It would be an artificial and narrow view of Article17 to hold that in such a case it was the collapse of the seat that was the accident. The direction is as much a part of the accident as the collapse of the seat. If the attendant was charged with the offence of doing an act that caused bodily harm to the passenger, no one would doubt that the defence of "accident" would be available to the flight attendant."
6. His Honour cited the American case of Saks (470 US 392 (1985)) saying it decided (applying a narrow view) "That no accident occurs for the purpose of the Article when the injury indisputably results from the passenger's own internal reaction to the usual, normal, and expected operation of the aircraft." In the Saks case a passenger went deaf in one ear as a result of the decompression of the aircraft which was operating normally.
7. McHugh J again mentions Saks case admitting that the case decided that liability under Article 17 arises only if a passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger. (Page 444). Thus DVT was not an accident within the scope of the Act.
8. In conclusion, the event that is said to be the accident must not be something that happens to the passenger of their own makeup, but must be an event that was not expected or was out of the ordinary and thus an accident external to the passenger. One only needs to prove the event said to be the accident, without proving negligence, and show damage that was not contributed to by the passenger, to succeed in a claim up to the set limit.
© C. P. McKeown - February 2006