F.4. Consideration
78 It is necessary to distinguish between an accident that occurred onboard an aircraft or in the course of the operations of embarking or disembarking, and a claim for damages for an injury that occurred during the international carriage of a passenger by air.
79 My conclusion that the accident alleged by the applicants did not occur on the aircraft or in the course of the operations of embarking or disembarking the aircraft does not carry with it any necessary implication that the claims for damages advanced by the applicants against Qatar Airways did not concern injuries sustained during their international carriage by air.
80 In my view, the particulars provided by the applicants for their claims for damages against Qatar Airways are all directed at acts or omissions of Qatar Airways that occurred onboard the aircraft, in the course of the operations of disembarking or embarking the aircraft or in an ambulance on the tarmac. At the time that the invasive examinations in the ambulance were conducted, the international carriage of the applicants by air had not ceased. The applicants had passed through passport control and pre-boarding security, their luggage had been loaded and remained on the aircraft, they had not reached their intended destination nor had they passed back through passport control.
81 The critical issue is whether the exclusivity principle extends to any personal injury suffered by a passenger in the "course of international carriage by air" or only to injuries that would fall within the scope of Art 17(1) of the Montreal Convention. If the narrow construction propounded by the applicants is correct, the exclusivity principle would only apply to injuries sustained "on board the aircraft or in the course of any of the operations of embarking or disembarking" the aircraft.
82 I am satisfied for the following reasons that the broader construction advanced by Qatar Airways is correct and there is no substantive support in any of the relevant authorities for the narrow construction propounded by the applicants.
83 First, there is no textual support in Art 29 for any limitation on the breadth of the exclusivity provision. The language is not qualified. It is directed at "any action for damages, however founded" and concerns any action for damages "whether under this Convention" or "in contract or in tort" or "otherwise" and provides that such actions can "only be brought" subject to the conditions and such limitations of liability as are set out in the Montreal Convention.
84 Second, not reading down the breadth of the text of Art 29 is consistent with the object and purpose of the Warsaw Convention and Montreal Convention.
85 The speech of Lord Hope of Craighead in Sidhu provides the most authoritative statement of the scope of the exclusivity principle in the context of the object and purpose of the Warsaw Convention (and subsequently the Montreal Convention).
86 The appellants in Sidhu were passengers on a British Airways flight from London to Kuala Lumpur via Kuwait. The flight landed in Kuwait early on the morning of the Iraqi invasion of Kuwait. Some of the passengers were permitted to leave the aircraft and went to the transit lounge. Shortly afterwards the airport was attacked and the passengers in the transit lounge, who included the appellants, were detained by Iraqi military forces for a period of 20 days.
87 The appellants had variously brought actions against British Airways in England, as plaintiffs, and in Scotland, as pursuers. In the action commenced in England, the plaintiffs sought damages against British Airways at common law for personal injuries and negligence. In the Scottish action, the pursuers sought damages for delay under Art 19 of the Warsaw Convention and in the alternative at common law for breach of an implied term of the contract for carriage that British Airways would take reasonable care for their safety.
88 The alleged breaches of duty by British Airways took place in the air prior to the aircraft's arrival in Kuwait but the appellants accepted that they did not have a claim against British Airways under Art 17 of the Warsaw Convention. The appellants also accepted that although their apprehension by the Iraqi security forces took place in the airport terminal in Kuwait, it was relevantly still in the course of international carriage by air because they were still in transit to their ultimate destination in Malaysia. Lord Hope of Craighead did not consider it necessary to explore the reasons why the appellants had taken the view that Art 17 did not provide a remedy for the appellants. His Lordship, however, noted that in the English action the plaintiffs had conceded in the Court of Appeal that no accident causing damage had taken place on board the aircraft or in the course of disembarkation.
89 In that case the appellants accepted that their claims arose during international carriage by air but they did not have claims under Art 17 of the Warsaw Convention (apparently on the bases that there was no "accident" and no "bodily injury"): Sidhu at 440-441. In those circumstances, Lord Hope of Craighead, with whom the rest of their Lordships agreed, held that the Warsaw Convention provided "the exclusive cause of action and remedy" in respect of actions for damages for personal injury "sustained in the course of, or arising out of, international carriage by air": Sidhu at 437, and see 441, 447. His Lordship stated at 447:
To permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention.
90 Third, neither Sidhu nor Parks Shire Council leaves open the possibility that an action for damages with respect to an act or omission that occurred in the course of international carriage by air can be advanced outside the scope of Art 17.
91 In Parkes Shire Council the High Court considered whether a claim in tort for psychiatric harm arising from the death of a passenger during air carriage to which Pt IV of the CACL Act applied was precluded by that Act. Section 28 of the CACL Act mirrors Art 17 of the Warsaw Convention and Art 17(1) of the Montreal Convention, and s 35(2) of the CACL Act mirrors the exclusivity provision in Art 24 of the Warsaw Convention and Art 29 of the Montreal Convention.
92 In considering the proper construction of s 28 and s 35(2) of the CACL Act, the High Court in Parkes Shire Council at [10] placed particular emphasis on the reasoning of Lord Hope of Craighead in Sidhu in addressing Art 17 and Art 24 of the Warsaw Convention.
93 The plurality (Kiefel CJ, Bell, Keane and Edelman JJ) observed that s 28 of the CACL Act implemented Art 17 of the Warsaw Convention by creating a liability that was "distinct from any liability that might arise under domestic law" and stated at [16]:
It is that liability that s 28 creates which s 35(2) substitutes "for any civil liability of the carrier under any other law in respect of the death of the passenger" (emphasis added). The substitution so effected is clearly intended to be comprehensive.
94 The plurality was specifically addressing the death of a passenger but s 36 of the CACL Act is relevantly in substantially the same terms as s 35(2) with respect to a personal injury to a passenger that did not result in the death of the passenger.
95 The plurality noted at [20] that at first instance, the primary judge had concluded that he was bound by the decision of the Full Court of this Court in South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301, to find that the claims in tort for negligently inflicting psychological harm were not extinguished by the temporal limit imposed by s 34 on the availability of a cause of action created by s 28 of the CACL Act. The Full Court in Magnus (Sackville J, Hill J agreeing and Beaumont J dissenting) found that claims for psychiatric injury by non-passengers were outside the scope of Pt IV of the CACL Act and hence were not time barred: Parkes Shire Council at [21].
96 The plurality considered at [24] that the following statement by Beaumont J in Magnus at [33] better accorded with the approach of the House of Lords in Sidhu:
It is apparent that Pt IV was intended to operate exclusively, as a code, in the event of the death or personal injury of a passenger in an aircraft accident. In that area, Pt IV provides some benefits not available under the general law, yet is also restrictive of the rights of a plaintiff at common law in some respects.
97 The plurality stated at [25]:
Beaumont J was rightly focused upon the evident intention of the CACL Act to create uniform and exclusive rules as to the liability of a carrier for events involving injury to or the death of passengers in accordance with the intent of the Warsaw Convention.
(Footnote omitted.)
98 The plurality emphasised that the "cardinal purpose" of the CACL Act in giving effect to the Warsaw Convention was to "achieve uniformity in the law relating to liability of air carriers, so that, in those areas with which the Convention deals, it contemplates a uniform code that excludes resort to domestic law": Parkes Shire Council at [36].
99 Justice Gordon came to the same conclusion as the plurality. Her Honour stated at [71], in a sentence emphasised in the applicants' submissions at [57]:
Article 24 of the Warsaw Convention gives effect to what has been described as the "exclusivity principle" - that a claim falling within, relevantly, Art 17 "can only be brought subject to the conditions and limits set out in [the] Convention". That, in turn, directs attention to the scope of Art 17.
100 Contrary to the submissions of the applicants, I do not accept that these statements can be construed as Gordon J finding "merely that where there is a claim falling within the scope of Art 17, that article provides the exclusive basis for the carrier's liability". Such a proposition is not possible to reconcile with her Honour's subsequent reference and approval of the analysis of Lord Hope of Craighead in Sidhu. Her Honour in that context, stated at [73]:
If the basis of the claim satisfies the terms of Art 17, the liability of the carrier is limited to that provided by the terms of the applicable convention. On the other hand, if there is no claim within the terms of Art 17, there is no remedy. As Lord Hope of Craighead explained in Sidhu v British Airways Plc, the whole purpose of Art 17, read in context, was to prescribe the only circumstances in which a carrier would be liable to the passenger for claims arising out of that person's international carriage by air. That principle has been applied in the United States, Hong Kong, Canada and New Zealand, amongst other jurisdictions.
(Footnotes omitted.)
101 This passage from her Honour's reasons makes clear that the reference to "no claim within the terms of Art 17" was not a reference to a claim that fell within Art 17, but for which Art 17 did not provide a remedy. Rather, her Honour was stating that Art 17 prescribed the only circumstances in which a carrier could be liable to a passenger for any claim "arising out of that person's international carriage by air".
102 Those statements of principle by the High Court in Parkes Shire Council were made in the context of a different but related question to that considered in Sidhu and that arises in the present case. Nevertheless, they were considered statements of principle that were a necessary step in the reasoning of both the plurality and Gordon J. To the extent that they might be suggested not to be binding given the different question addressed in Parkes Shire Council and thereby only in the character of obiter dicta statements, Jackman J recently emphasised in DC Rd DC Pty Ltd v Zhang (No 3) [2024] FCA 221 at [35]:
[T]he High Court has held that intermediate appellate courts and trial judges in Australia should not depart from long-established authority and seriously considered dicta of a majority of the High Court: Farah Constructions Pty Limited v Say-Dee Pty Limited [2007] HCA 22; (2007) 230 CLR 89 at [134] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). That proposition contains two requirements, namely that the dicta conform with long-established authority and be the dicta of a majority of the High Court: Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 at [473] (Heydon J); Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; (2020) 282 FCR 530 at [54] (Lee, Anastassiou and Stewart JJ), citing Perry Herzfeld and Thomas Prince, Interpretation (Lawbook Co, 2nd ed, 2020) at [33.320].
103 Both requirements are met here. The statements of principle were made by all members of the High Court in Parkes Shire Council, and they conformed with long established authority commencing with Sidhu.
104 Fourth, the analysis undertaken by Lord Hope of Craighead in Sidhu has been approved and followed in other appellate decisions of courts around the world, including in both Australia and in the United States.
105 The Court of Appeal of the New South Wales Supreme Court in United Airlines v Sercel (2012) 289 ALR 682; [2012] NSWCA 24 at [96] (Allsop P, with whom McFarlan JA and Handley AJA agreed) stated that Sidhu:
… can be accepted fully for what it decided: that from a consideration of the whole purpose of the Warsaw Convention, it can be taken to prescribe the circumstances, being the only circumstances, in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air. No other action was available to the passenger.
106 After quoting from the analysis undertaken by Lord Hope of Craighead at 447, Allsop P said at [96]-[98]:
His Lordship was speaking of the unity and comprehensiveness of the actions given by the Warsaw Convention to the passenger (extending also to wrongful death claims). Those actions were given to the passenger, all others were removed from him or her and those that were given were subject to the conditions and limits of the convention.
The same approach was taken by the United States Supreme Court in El Al Israel Airlines. The rights of the passenger to damages were exclusively to be found in the Warsaw Convention. One did not have access to state law if one fell outside Art 17. The court viewed the Warsaw Convention as intended to give airlines the protection of actions provided for under Art 17 when read with Art 24 (to passengers and those claiming in respect of death under national law) being the only actions those people could bring.
107 This expression of the matter by both the House of Lords and the Supreme Court reflects Australian law, though Australian statute law may go further: see s 9D(2), s 9E, s 12(2), s 13, s 24, s 25L, s 35(2) and s 36 of the CACL Act, which make the causes of action provided for a complete substitute for any civil liability of the carrier in respect of the injury or death of a passenger.
108 Fifth, the statements relied upon by the applicants in each of Tseng, King and Stott do not provide any substantive support for the narrow construction.
109 In each case, it was accepted that the relevant event was in the course of embarking or in the course of flight and therefore the event fell within the scope of Art 17 and the exclusivity principle therefore clearly applied. The applicants, however, sought to derive support from the following dicta observations.
110 In Tseng, Justice Ginsburg, who gave the opinion of the United States Supreme Court, referred with approval to the amicus curiae submissions of the United States government at 172:
"[T]he Convention's preemptive effect on local law extends no further than the Convention's own substantive scope." A carrier, therefore, "is indisputably subject to liability under local law for injuries arising outside of that scope: e.g., for passenger injuries occurring before 'any of the operations of embarking'" or disembarking.
(Footnotes omitted.)
111 Any support that the reference to "injuries outside of that scope" might be thought to provide for the narrow construction is negated when one has regard to the wording of the exclusionary provision the subject of that statement. Article 24 relevantly provided at that time that:
1. In the cases covered by Articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention.
2. In the cases covered by Article 17 the provisions of the preceding paragraph also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their respective rights.
112 Justice Ginsburg, however, observed at 174-175, in response to a submission that subsequent revisions to Art 24 provided for pre-emption that had not previously existed:
Montreal Protocol No. 4, ratified by the Senate on September 28, 1998, amends Article 24 to read, in relevant part: "In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention . . . ." Both parties agree that, under the amended Article 24, the Convention's preemptive effect is clear: The treaty precludes passengers from bringing actions under local law when they cannot establish air carrier liability under the treaty. Revised Article 24, El Al urges and we agree, merely clarifies, it does not alter, the Convention's rule of exclusivity.
(Footnotes omitted.)
113 The significance of these observations is that the revisions made to Art 24(2) of the Warsaw Convention, by Montreal No 4 removed the qualification provided by the words "[i]n the cases covered by Art17 the provisions of the preceding paragraph also apply" and replaced them with an unrestricted reference to "the carriage of passengers and baggage".
114 In King, the Court of Appeals relevantly noted that in determining whether events giving rise to a claim occurred within the course of the international carriage of passengers, it was necessary to look to the Warsaw Convention's liability provisions in order to construe the "substantive scope" of the Warsaw Convention: King at 358. The Court of Appeals further observed at 360-361:
Article 17 directs us to consider when and where an event takes place in evaluating whether a claim for an injury to a passenger is preempted. Expanding upon the hypothetical posed by the Tseng Court, a passenger injured on an escalator at the entrance to the airport terminal would fall outside the scope of the Convention, while a passenger who suffers identical injuries on an escalator while embarking or disembarking a plane would be subject to the Convention's limitations. Tseng, 525 U.S. at 171, 119 S.Ct. 662. It is evident that these injuries are not qualitatively different simply because they have been suffered while embarking an aircraft, and yet Article 17 plainly distinguishes between the two situations.
(Footnote omitted.)
115 In Stott, Lord Toulson, with whom the other Justices of the Supreme Court of Appeal agreed, noted that if the claimant had a complete cause of action before boarding the aircraft, "it would of course follow that such a pre-existing claim would not be barred by the Montreal Convention": Stott at [60].
116 These statements, however, do not assist in construing the phrase "in the course of international carriage by air". In each statement an event was identified by way of distinction that occurred prior to any international carriage by air. The events were variously described as an injury prior to embarkation (Tseng), an accident on an escalator at the entrance to an airport terminal (King) or a complete cause of action before boarding an aircraft (Stott). None of the statements were directed at an event that occurred in the course of the international carriage by air. In each case the international carriage by air had not yet begun, as each was prior to any process of embarkation. Entering an airport terminal cannot be equated with embarking on an aircraft.