Australian National Airlines Commission v Newman

In her amended statement of claim she alleged negligence on the part of the Commission and asserted that it failed to provide her with a safe place of work and with a safe means of access to her place of work, founding in each case upon the greasy condition of the floor in the flight services kitchen. She also relied upon breaches of three sections of the Factories, Shops and Industries Act 1962 NSW, alleging that (a) in breach of s. 22(4) the floors of the Commission's premises were not maintained in good order and condition; (b) in breach of s. 34(a) the floors were not properly maintained; and (c) in breach of s. 40(1) the Commission failed to provide and maintain safe means of access to every place at which the respondent had to work. It is common ground that these provisions applied to the Commission in its conduct of the flight services kitchen: see s. 64 of the Judiciary Act 1903 Cth. The Commission pleaded, in addition to other defences, that the respondent's cause of action was barred by the operation of s. 63(1) of the Australian National Airlines Act 1945 Cth, ("the Act").

The action was heard before Lusher J. and a jury. At the conclusion of the hearing the jury answered certain questions, finding against the respondent on the issue of negligence, but finding that the Commission was in breach of the provisions of the Factories, Shops and Industries Act and assessing damages in the sum of $20,000. Although it does not appear from the questions or the jury's answers that the jury identified the particular provision in the Factories, Shops and Industries Act that was infringed by the Commission, it is likely, in the light of the trial judge's summing up, that the jury found the Commission to be in breach of all three sections. The trial judge, after hearing argument on the defence under s. 63(1) of the Act, found that it was effective to bar the respondent's claim and directed the jury to find a verdict for the Commission. Judgment was subsequently entered in favour of the Commission with costs.

The New South Wales Court of Appeal by majority (Samuels and Mahoney JJ.A., Priestley J.A. dissenting) allowed the respondent's appeal from that judgment, with costs, set aside the judgment that had been entered for the Commission and substituted a judgment for the respondent in the sum of $20,000 with costs.

The Act establishes the Commission as a body corporate with the powers and functions conferred by the Act: s. 6. The powers, functions and duties of the Commission are set out in Pt II, Div. 2 of the Act. Section 19(1) provides inter alia:

(a) to transport passengers and goods for reward by air between prescribed places;

(b) to engage in other activities to the extent that they are within the limits of the powers of the Commission under a provision of this Act other than this section;

and the Commission shall carry on business for the purpose of performing those functions. Paragraph (b) of s. 19(1) refers to other powers given to the Commission. The relevant powers are found in ss. 19D and 19H.

(1) The Commission may, to the extent provided by sub-section (2), establish, maintain and operate, or make arrangements with other persons for or in connexion with the establishment, maintenance and operation of, hotels or other establishments or enterprises providing accommodation, recreation, entertainment or other services or facilities.

(2) The powers of the Commission under sub-section (1) may be exercised for the purposes of the efficient, competitive and profitable conduct of the business of the Commission in respect of its function under paragraph (a) of sub-section (1) of section 19 or otherwise as incidental to the carrying on of that business.

(1) The Commission has power to do all things necessary or convenient to be done for or in connexion with, or as incidental to, the performance of its functions

(2) A provision of this Act conferring a power on the Commission shall not be read so as to limit the powers of the Commission under any other provision.

The critical provision in the Act, s. 63, is in these terms:

(1) All actions against the Commission or against any person for or arising out of anything done or purporting to have been done under this Act, shall be commenced within two years after the act complained of was committed.

(2) This section does not apply to an action to which a period of limitation is applicable by virtue of the Civil Aviation (Damage by Aircraft) Act 1958 or the Civil Aviation (Carriers' Liability) Act 1959.

The Commission's case begins with the proposition that the words "All actions arising out of anything done or purporting to have been done under" the Act are to be read as comprehending all actions arising out of things done or omitted to be done in the exercise by the Commission of its powers and functions under the Act. The next step in the argument is to say that the present action arises out of the carrying on by the Commission of a flight services kitchen. The final step in the argument is that ss. 19(1), 19D and 19H(1), when read together, make the carrying on of a flight services kitchen a function or power of the Commission, so that what the Commission does in carrying on the kitchen is something done under the Act. These steps, so it is said, lead to the conclusion that an action for damages for breach of statutory duty in failing to provide a safe means of access to a place of work or failing to maintain a floor in good order and condition or to properly maintain it is an action arising out of something done under the Act, namely the carrying on of a flight services kitchen.

The flaw in this argument is that s. 63(1) lends no support to the view that, for the purpose of determining whether the sub-section applies, we should look to the general statutory function or power, pursuant to which the Commission carried on its relevant undertaking, rather than to the particular act of which the respondent complained. The expression at the end of the sub-section "the act complained of" refers back to the earlier words "anything done or purporting to have been done under this Act". These words refer to the particular act that causes the injury complained of, rather than to the general function or power pursuant to which the Commission engages in the undertaking in the course of which the injury occurs. What the respondent complained of was not the carrying on of a flight services kitchen, but the failure to provide a safe means of access to a place of work, the failure to maintain the floor in good order and condition and the failure to properly maintain it.

The absence of any reference to omissions in s. 63(1) provides some ground for thinking that the provision should be confined in its operation. A limitation provision, because it derogates from the ordinary rights of individuals, should be strictly construed. In its context, the reference to acts, unaccompanied by a corresponding reference to omissions, may suggest that the sub-section was intended to apply to positive acts done in the performance of functions and the exercise of powers of such a nature that they involve a special risk of interference with persons or property, e.g., the risks associated with the flying of aircraft in the course of carrying on an airline business. In that regard, there is much to be said for the view that the remarks of Dixon C.J. in Board of Fire Commissioners (N.S.W.) v. Ardouin [1] are in point here notwithstanding that they were directed to the operation of a differently worded provision. It is unnecessary however that we pursue that question or that we determine the extent, if at all, to which s. 63(1) is to be read as applying to omissions as well as to acts of commission. Even if the sub-section be read as referring indifferently to acts of commission and omission, we agree with the conclusion reached by the majority of the Court of Appeal that it did not apply to bar the respondent's action in the present case.

The starting point of the application of s. 63(1) in a particular case must necessarily be the identification of the thing "for or arising out of" which the action is brought, which, as we have indicated, will correspond with what the section describes as the "act complained of". In the present case, there is no difficulty in identifying the "act complained of" or the thing "for or arising out of" which the particular action was brought. It was the failure to provide a safe means of access to a place of work or to maintain the floor in good order and condition or to maintain it properly. As a matter of ordinary language, it seems to us that the Commission's failure in any of those regards could not, in the context of a disentitling provision of the kind contained in s. 63(1) of the Act, properly be seen as coming within the description of something "done or purporting to be done" under an Act which contains nothing at all about either the failure to provide or the provision of safe means of access or about the neglect or the proper maintenance of floors in premises owned and occupied by the Commission. We are confirmed in that view by a consideration of the authorities to which we were referred in the course of argument. For present purposes, the most important of those authorities are the decisions of this Court in Ardouin and Hudson v. Venderheld [2] .

In Ardouin the board pleaded s. 46 of the Fire Brigades Act 1909 NSW as a defence in an action for personal injury caused by the negligent driving of a fire engine on a public highway, the fire engine being on its way to the scene of a fire. So far as it was material s. 46 provided that "The board exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers". The Court by majority (Dixon C.J., Kitto, Taylor and Windeyer JJ., McTiernan J. dissenting) held that s. 46 was not a defence. With reference to the section Kitto J. said [3] :

the immunity attaches in respect only of damage resulting from an act which, if it had not been negligent, would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other than s. 46 or the by-laws gave power in the circumstances to do, as distinguished from an act which was merely incidental to, or done by the way in the course of, the exercise of a power. 1. (1961) 109 C.L.R., at p. 117.

His Honour then stated the question for decision as being whether damage caused by the driving of the board's vehicle on a public street on the way to a fire is "caused by an act which, in the absence of negligence, would have been within, as distinguished from being incidental to, the exercise of some power conferred by a provision other than s. 46" [4] . His Honour then rejected the argument that there was to be implied from other provisions of the statute a power to drive on a public street, observing [4] :

There is no difficulty in finding in the creation of a duty an implied grant of power. But the implication, arising as it does from necessity, must be limited by the extent of the need. There can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful. To drive a vehicle on a public street, for the purpose of dealing with a fire or for any other purpose, needs no grant of power. 1. (1961) 109 C.L.R., at p. 118. 2. (1961) 109 C.L.R., at p. 118.

Taylor J. [5] and Windeyer J. [6] expressed similar views.

1. (1961) 109 C.L.R., at p. 124. 2. (1961) 109 C.L.R., at p. 127.

In Hudson the plaintiff, who was injured when travelling as a passenger in a motor vehicle which collided with a truck owned by a local authority driven by the defendant, an employee of the authority, sued him for damages arising out of his negligent driving. The defendant pleaded as a defence that the plaintiff had failed to comply with s. 580(1) and (6) of the Local Government Act 1919 NSW.

Section 580 was a limitation provision. Sub-section (1) was in these terms:

A writ or other process in respect of any damage or injury to person or property shall not be sued out or served upon the council or any member thereof, or any servant of the council or any person acting in his aid for anything done or intended to be done or omitted to be done under this Act, until the expiration of one month after notice in writing has been served on the council or the member servant or person as provided in this section. Sub-section (6) required that any such action be commenced within twelve months after the occurring of the cause of action.

The Court by majority (Barwick C.J., Kitto, Taylor and Owen JJ., McTiernan J. dissenting) held that s. 580 had no application. The majority acknowledged [7] that s. 580(1) differed substantially in its language from s. 46 of the Fire Brigades Act. Indeed, it more closely resembles s. 63(1) of the Act which, however, refers only to an act as distinct from an omission. The majority nevertheless applied the approach expounded by Kitto J. in Ardouin as reflected in the second passage which we have quoted above from his Honour's judgment in that case. In that passage his Honour was dealing with the implication of a power from the creation of a duty and was at pains to point out that there is no occasion to imply a power to do what is lawful.

Our statement of the reasons for the decisions in Ardouin and, more particularly, Hudson immediately focuses attention on the flaws in the Commission's argument in the present case. The Court in each of the two cases, for the purpose of determining whether the statutory provision applied, directed its attention to the particular act that caused the injury, the negligent driving of a vehicle on a public street, instead of looking to the general statutory function - operating as a fire brigade or as a local authority - in the course of which the particular act was done. Both Ardouin and Hudson are inconsistent with the notion that, for the purpose of deciding whether s. 63(1) applies, we should look to the carrying on of the business or operation of a flight services kitchen, rather than to the Commission's negligent failure to provide a safe means of access to a place of work or to maintain the floor in good order and condition or to maintain it properly. And, by parity of reasoning with the approach adopted by Kitto J. in Ardouin, we should not regard the act complained of by the respondent as something authorized by s. 19H(1) and, accordingly, as something done "under" the Act.

Section 63(1) of the Australian National Airlines Act 1945 Cth ("the Act") bars the commencing of certain classes of action against the Commission when two years have expired "after the act complained of was committed". The protection thus given to the Commission focuses on the act which founds the liability sought to be enforced in the action. The provision applies when the liability sought to be enforced is founded either on an act done or purportedly done "under this Act" (an action "for" something done under the Act) or on an act which arises out of something done or purportedly done "under this Act" (an action "arising out of" something done under the Act). The distinction between an act which is done or purportedly done under the Act and an act which arises out of something done or purportedly done under the Act requires in the one case an examination of statutory authority for the doing of the relevant act and in the other case an examination of statutory authority for the carrying on of the activity in the course of which the relevant act was committed. An action "arising out of" something done under the Act imports a connexion between the act complained of and an activity which the Act authorizes; an action "for" something done under the Act, however, is an action founded on an act of a kind which the Act authorizes.

As a statutory authority to do something is inconsistent with liability for doing precisely that thing, the protection given by s. 63(1) cannot be intended to relate merely to actions founded on the doing of things precisely in accordance with statutory authority. Section 63(1) must be intended to relate also to actions founded on things done in intended or purported exercise of statutory powers and performance of statutory functions, where the manner in which the relevant thing is done founds a liability. The typical case to which s. 63(1) would apply is where the relevant act is done in exercise of a statutory power or in performance of a statutory function but it is done negligently: see Benning v. Wong [8] . The Act furnishes no authority for negligence, and s. 63(1) can apply when negligence in the doing of the relevant act founds the liability sought to be enforced. Some examples will illustrate its application.

The Commission is authorized to transport passengers and goods for reward by air between prescribed places: s. 19(1)(a). If a pilot should do something negligently in piloting an aircraft engaged in the authorized activity of transportation, the Commission would be vicariously liable for resulting loss or damage though the negligent act were done in the course of performing the statutory function. But s. 63(1) would apply because the pilot's negligent act would arise out of something done under the Act, namely, the transporting of passengers and goods for reward by air between prescribed places. Take another illustration. The Commission is authorized to provide a Commonwealth authority with engineering services: s. 19(1)(c). If the Commission undertook the repair of an aircraft for a Commonwealth authority and repaired it negligently whereby loss or damage was caused, the Commission would be liable for something done, but done negligently, under the Act. Again, the Act would not protect the Commission from liability for negligence in the act of repairing the aircraft, though the repairing of the aircraft is an act done in exercise of the Commission's statutory powers or in the performance of its statutory functions but s. 63(1) would apply to an action brought to enforce the liability. When an act is done in intended or purported exercise of a statutory power or in intended or purported performance of a statutory function which authorizes the doing of an act of that kind, an action founded on the negligent doing of the act is an action "for" something done or purportedly done under the Act. When an act is done in the course of an activity in which the Commission is engaged in intended or purported exercise of a statutory power or in intended or purported performance of a statutory function, an action founded on the negligent doing of the act is an action "arising out of" something (i.e., the activity) done or purportedly done under the Act.

In this case, the action arises out of what was done in the course of conducting the flight services kitchen. The precise act complained of does not appear from the jury's verdict. The jury merely answered affirmatively the question: has the plaintiff established any breach on the part of the defendant under the Factories, Shops and Industries Act 1962 NSW? However, the breach found by the jury clearly related to the allegation that grease and fat substances had been allowed to remain on the surface of the floor of the kitchen. Let it be assumed that the action is founded on an act committed by the Commission or its servants. On that assumption, it is unnecessary to consider whether s. 63(1) applies to actions founded on omissions made by the Commission or its servants. And let it be further assumed, as it was assumed throughout the proceedings, that the Factories, Shops and Industries Act bound the Commission. On that assumption, there is no reason to disturb the jury's finding that the act complained of constituted a breach of the Factories, Shops and Industries Act. The act complained of was not an act of a kind authorized by the Act and the action is not "for" something done or purportedly done under the Act. But the act was committed in the course of conducting the kitchen on the floor of which the plaintiff slipped. As the act complained of arose out of the conduct of the kitchen, the question is: was the conduct of the kitchen something "done or purporting to have been done under this Act"?

In construing limitation provisions similar to s. 63(1), a thing which might be lawfully done without statutory authority has not been regarded as something done under the statute. Such provisions are strictly construed for they protect the interests of the statutory authority at the expense of individual rights. Thus in Board of Fire Commissioners (N.S.W.) v. Ardouin [9] , liability for damage caused by the negligent driving on a roadway of a fire engine on its way to extinguish a fire was held not to fall under a provision which protected the Board of Fire Commissioners from liability for damage caused in the bona fide exercise of its powers. Although the Board's duties included the taking of measures to extinguish fires and to proceed with all speed to a fire upon alarm of fire, the driving of the fire engine was not regarded as something done in exercise of the Board's powers. Kitto J. said [10] :

There is no difficulty in finding in the creation of a duty an implied grant of power. But the implication, arising as it does from necessity, must be limited by the extent of the need. There can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful. To drive a vehicle on a public street, for the purpose of dealing with a fire or for any other purpose, needs no grant of power. For that reason, neither s. 19 nor s. 28 [the sections prescribing the Board's duties] can be said to confer a power to drive on a public street; and accordingly damage caused by an officer of the Board in driving on a public street is not damage caused in the exercise of a power conferred by either of those sections. It is caused in the exercise of the right of way which anyone may exercise in virtue of the public character of the highway. 1. (1961) 109 C.L.R. 105. 2. (1961) 109 C.L.R., at p. 118.

In Hudson v. Venderheld [11] , a provision which limited the time within which an action could be brought against a servant of a council was held to be inapplicable to an action for damages for negligence in the driving of a council truck from a place where repairs to some fallen high tension wires had been carried out to the council depot. The majority of the Court (Barwick C.J., Kitto, Taylor and Owen JJ.) held that the principle stated by Kitto J. in Ardouin was of general application and said [12] :

In driving along a public highway the defendant was doing something which the law - apart altogether from the Local Government Act - gave him a right to do. It is true that he was acting on the instructions of an officer of the Council and in the course of his employment, but that does not mean that what he was doing was being "done under" the Local Government Act. 1. (1968) 118 C.L.R. 171. 2. (1968) 118 C.L.R., at p. 175.

In the present case, the Commission required no statutory authority to conduct a kitchen. That is an activity which, so far as appears, might lawfully be engaged in without statutory authority. The Commission was at liberty to perform the functions prescribed by s. 19(1) or by other provisions of the Act by whatever lawful means it chose, and no further grant of power or prescription of functions was needed to authorize the conduct of the kitchen. True it is that the Act expressly confers powers on the Commission to operate services and facilities for the purposes of and incidental to the carrying on of its business (s. 19D) and to do "all things necessary or convenient to be done for or in connexion with, or as incidental to, the performance of its functions" (s. 19H(1)) but the Act is not to be regarded, for the purpose of s. 63(1), as the source of power which the Commission otherwise possesses. Freedom under the common law to engage in conduct requires no grant of statutory power to confirm it, and a limitation provision which affects liability for things done or purportedly done "under" the statute does not affect liability for things which are and can be done without reliance on a statutory power to do them. The conduct of the kitchen was something which the Commission had capacity to undertake without the grant of statutory power to undertake it. It follows that an act committed in the course of conducting the kitchen is not an act arising out of something done or purportedly done under the Act for the purpose of s. 63(1). As an action founded on such an act does not attract the operation of s. 63(1), the appeal should be dismissed.